Admiral Towing Company, a Corporation and Walter B. Martinson v. Theo Woolen and Dorothy E. Cone

Pursuant to 46 U.S.C.A. § 185 , Admiral Towing Company, a corporation, and Walter B. Martinson, an individual, petitioned the District Court for a limitation of liability arising out of the disappearance at sea of the tug boat Companion en route from San Francisco to Astoria, Oregon. The court denied the petition. It ruled that Martinson was the de facto, equitable and true owner of the tug although legal title resided in Admiral Towing Company, that Martinson with privity and knowledge had negligently failed to provide the vessel with an adequate crew, a life boat or life raft, or a functioning ship-to-shore radio, and that these omissions rendered the Companion unseaworthy and proximately caused her loss at sea and the deaths of her master, John R. Cone, and her sole crewman, Paul Woolen, who were aboard her.

On appeal, both Admiral Towing Company and Martinson contend that the evidence was insufficient to show negligence or unseaworthiness or to show that such alleged negligence or unseaworthiness proximately caused the loss of the tug or the deaths of Cone or Woolen. In addition, appellant Martinson contends that the District Court lacked jurisdiction to hear his petition to…

(dissenting in part).

If appellants are liable to Woolen and Cone it is on the ground of negligence or unseaworthiness. They owed Woolen the duty not to employ him as a crewman because of his inexperience. They breached that duty by reason of Cone’s act in employing Woolen, and Martin-son’s failure to discover and cancel Cone’s act. The vessel was not seaworthy because of Woolen’s incompetence. Hence, both on the grounds of negligence and unseaworthiness appellants are liable to Woolen.

In my view, however, the situation is entirely different as to Cone. I do not believe appellants owed the experienced Cone any duty of discovering and canceling his own act of negligence in employing Woolen. If this is true, then liability as to Cone cannot be predicated on negligence, because the sole negligence as to Cone would be his own. It would then also follow that appellants are not *653 chargeable to Cone on the ground of unseaworthiness, for as to him the unseaworthiness was brought about solely by Cone’s negligence.

In Boudoin v. Lykes Bros. S. S. Co., 1955, 348 U.S. 336 , 75 S.Ct. 382, 384 , 99 L.Ed. 354 , a seaman was permitted to recover on the theory of unseaworthiness when he was…

290 F.2d 641 ADMIRAL TOWING COMPANY, a corporation and Walter B. Martinson, Appellants, v. Theo WOOLEN and Dorothy E. Cone, Appellees. No. 16735. United States Court of Appeals Ninth Circuit. April 18, 1961. COPYRIGHT MATERIAL OMITTED Lofton L. Tatum, Wood, Matthiessen, Wood & Tatum, Portland, Or., for appellants. Ewing Sibbett, Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Frank Pozzi, Pozzi & Wilson, William F. White, White, Sutherland & White, Portland, Or., for appellees. Before STEPHENS and HAMLEY, Circuit Judges, and BOWEN, District Judge. STEPHENS, Circuit Judge. 1 Pursuant to 46 U.S.C.A. § 185 , Admiral Towing Company, a corporation, and Walter B. Martinson, an individual, petitioned the District Court for a limitation of liability arising out of the disappearance at sea of the tug boat Companion en route from San Francisco to Astoria, Oregon. The court denied the petition. It ruled that Martinson was the de facto, equitable and true owner of the tug although legal title resided in Admiral Towing Company, that Martinson with privity and knowledge had negligently failed to provide the vessel with an adequate crew, a life boat or life…