Forestel v. United States
Forestel v. United States
Opinion of the Court
These two consolidated.suits were filed by separate counsel on behalf of the widow and minor children of William M. Forestel and grow out of his death on January 6, 1961, while he was acting as third officer on board the SS PENN TRANSPORTER.
The first suit was filed against the United States of America under the Federal Tort Claims Act (28 U.S.C. §§ 1346 (b), 2671 et seq.) and charges that the United States Public Health Service Hospital at New Orleans negligently contributed to or caused the wrongful death of Forestel in not properly treating him medically. The second suit was brought under the Jones Act, Death on the High Seas Act and General Maritime Law against Penn Navigation Company, Inc. and Penn Shipping Company, Inc., owners and operators of the ocean freighter SS PENN TRANSPORTER on which decedent Forestel was a member of the crew in the capacity of third mate.
The case was tried without a jury and numerous witnesses testified and voluminous exhibits were offered, resulting in a mass of evidence, much of which is in conflict. Through this maze of statements, depositions, testimony and exhibits, we find the following to be a reasonable narrative of the facts, having in mind that there is great dispute as to much of the substantial evidence, but having heard most of the evidence and carefully reviewed it as well as the evidence taken by deposition:
On December 5, 1960, the crew of the SS PENN TRANSPORTER flew via
At 7:30 that evening an A. B. (Lou-kas) went to Forestel’s room to arouse him for his regular 8:00 p. m. to 12:00 midnight watch. The chief mate, Clayton, heard the A. B. calling Forestel and getting no answer because he could not be awakened. Clayton went to the room where he observed a whiskey smell, shook Forestel, tapped his face but got no response from him except that he was snoring loudly. The chief mate then instructed the A. B. to forget about trying to arouse Forestel, told him he would take the watch himself and sent the A. B. to inform the bridge that Clayton would substitute for Forestel. They were off Pilottown, Louisiana (in the Mississippi River near its mouth), at the time about to exchange pilots.
At 8:00 p. m., the master, chief mate and second mate went to Forestel’s room to check on him, smelled a peculiar odor like ether, which odor the chief mate said they had not detected when he previously went in at 7:30 to arouse him. The ports were opened to air the room and the chief officer took Forestel’s pulse, which was rapid, as well as his respiration. Clayton began looking for ether and instead found a 4-ounce bottle of paraldehyde one fourth full which was opened and smelled the same as For-estel’s breath. The paraldehyde was in a brown bottle identical to four similar bottles of the same drug which were kept in the ship’s medicine chest. Again an attempt was made to arouse Forestel without success. On further search, a partially consumed bottle of whiskey was found in Forestel’s bathroom. The mas
Immediately thereafter the master directed his radioman, Davidson, to radio telephone the United States Public Health Service Hospital at New Orleans. After the call was begun the chief officer, Clayton, was present and took over the telephone, describing to Dr. Carr of the hospital staff the size of the paralde-hyde bottle and how much remained in the bottle. However, the chief officer stated that he did not know how much had been taken by Forestel or over what period of time he had taken it. He also told the doctor that Forestel had been drinking; that his pulse was 100 and respiration 25. Dr. Carr stated that paraldehyde was a drug which was used for persons suffering with acute alcoholism ; that he did not believe there was any danger; that they should let For-estel “sleep it off,” continue on course, and report further if his condition changed. The master instructed the chief mate, Clayton, to check Forestel periodically to observe his condition. Thus at 8:30 p. m., Clayton checked Forestel’s pulse, which was 100 and strong, and respiration 30 and jerky; at 9:00 p. m., his pulse was 100 and strong and respiration 31 and jerky; at 9:30 p. m., his pulse was 100 and strong and respiration 30 and jerky; at 10:00 p. m., his pulse was 81 and strong and respiration 28 and jerky. At 10:15 p. m., Clayton again checked Forestel’s pulse, which was 100, respiration 28; while making the check Forestel gave a snort, opened his eyes and quit breathing. It was then about 10:20 p. m. In the meanwhile, the chief mate gave a solid thump over Forestel’s heart with his right fist and the heart resumed beating again. Artificial respiration was applied with the aid of the second mate and seventeen minutes later Fores-tel was breathing on his own and resumed snoring, 30 times to the minute. The chief officer, second mate and steward remained with Forestel and kept close check on his breathing and pulse. The captain, having been notified by the chief officer, ordered the course of the vessel reversed to return to port at 11:03 p. m. and called the Coast Guard; he was advised to keep up artificial respiration and a cutter and a helicopter would be sent immediátely. At 11:25 p. m., Forestel’s breathing suddenly quit again and he never resumed independent breathing. Artificial respiration was resumed until midnight of January 6, and the vessel, then returning to port, reached the sea buoy at Southwest Pass at the mouth of the Mississippi River where it anchored. At 12:40 a. m., the second mate took over artificial respiration so that the chief mate could prepare the deck for the Coast Guard helicopter’s arrival. At 1:10 a. m., the second mate reported that Forestel had stopped breathing again and was hemorrhaging a blackish-looking substance through the mouth; there was no pulse but artificial respiration was continued until 1:52 a. m. when the Coast Guard corpsman came aboard from the Coast Guard vessel CARTIGAN and began mouth-to-mouth resuscitation but could not revive Forestel whose body was removed at 2:30 a. m. by helicopter.
Forestel was both a chronic and acute alcoholic, having begun his drinking career in his late teens. His drinking episodes lasted from two or three days to two weeks at a time. During the past thirteen years he had serious drinking episodes about once each year, and had been hospitalized for alcoholism on four occasions. During the ten-day period from December 26 when the vessel arrived at New Orleans, until January 5 when it sailed from Baton Rouge for Haifa, he performed no duties, being unable to do so because of being drunk. Nevertheless, he was able to stand his 8:00 a. m. to 12:00 noon watch on January 5.
The suit against the United States is based on the contention that Dr. Carr should have ordered Forestel’s evacuation from the vessel when he was told, shortly after 8:00 p, m. on January
The suit against the vessel is based in part upon the claim of unseaworthiness for having paraldehyde aboard, though locked in the medicine chest, and available to all the ship’s officers who had access to the key to the chest. But plaintiff has failed to show that the paraldehyde which Forestel drank came from the ship’s stores. The evidence is strongly to the contrary. Chief Officer Clayton checked the medicine chest immediately after he discovered that Forestel had been drinking paraldehyde and four bottles remained, which was the identical amount which Clayton had inventoried on board the vessel when it was in Lubeck, Germany. At the Coast Guard hearing in March 1961 Clayton testified that the four bottles of paraldehyde were still aboard the vessel. No one knows where Forestel got paraldehyde, but the evidence shows that he was familiar with the drug, having previously used it from time to time under prescription given him by his Portland, Oregon, physician. On one occasion when Forestel used the drug he had quite an unfavorable reaction which was reported to his physician, so he knew what paraldehyde was and had been warned it should not be taken to excess because it would be dangerous to do so. His physician normally entrusted dispensing of paraldehyde to Mrs. Fores-tel during Forestel’s periods of recuperation from alcoholism because he feared that Forestel might take an overdose. We cannot, therefore, hold the vessel to be unseaworthy simply because it had four bottles of paraldehyde in its medicine chest, especially since there is no evidence that Forestel partook of the ship’s supply. Paraldehyde when used properly is a safe sedative and hypnotic; when used to excess, it is usually a fatal drug and exceptionally dangerous.
But plaintiff also charges that the crew was guilty of negligent inattention to Forestel by not having him evacuated by the Coast Guard when he was first discovered at 7:30 p. m. in a stupor. The evidence shows that the chief officer thought he was merely drunk at the time and, having witnessed his drinking episodes in the past, did not consider his condition too unusual. However, on examining Forestel again around 8:00 p. m. and detecting the foul odor of what he thought was ether, he discovered the partially empty bottle of paraldehyde and immediately had the captain seek medical advice from the Public Health Hospital at New Orleans. He did not feel then that Forestel was in any danger nor did any other member of the crew who saw him. The medical evidence discloses that this drug, when taken to excess, can cause respiratory arrest which is precisely what happened at 10:15 p. m. when, for the sixth time, the chief officer was taking Forestel's pulse and respiration. The ship’s officers were alarmed then about Forestel’s condition and called the Coast Guard for a helicopter evacuation of the seaman. The vessel was then in the Gulf of Mexico having proceeded out of the Missis
Under the Jones Act the survivors of a seaman may recover if his death resulted “in whole or in part from the negligence” of respondent. 46 U.S.C. § 688; 45 U.S.C. § 51. The primary question for decision is whether employer fault played any part, even the slightest, in the seaman’s mishap. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Under the Act contributory negligence of the seaman does not bar recovery but diminishes the damages in proportion to the amount of negligence attributable to the seaman. 45 U.S.C. § 53. Thus the burden is on plaintiffs to prove that the seaman’s death resulted in whole or in part from respondent’s negligence, Page v. St. Louis Southwestern Railway Company, 5 Cir. 1963, 312 F.2d 84, 98 A.L.R.2d 639; and “Of course the substantive law recognizes that if the negligence of the Employee is the sole cause of the injury or death, there is no liability.” Page v. St. Louis Southwestern Railway Co., 5 Cir. 1965, 349 F.2d 820.
The principle of causation is thus definitely established both in the Act and in the decisions construing the Act. Respondent’s fault, if any, must have played a part in Forestel’s death for
This ease was tried before Judge Ainsworth as a district judge prior to taking office as circuit judge.
Reference
- Full Case Name
- Theora L. FORESTEL, widow of William M. Forestel, Individually, and for the Use and Benefit of her minor children, Jeffery E. Forestel, Ann T. Forestel, Jean M. Forestel and James P. Forestel v. The UNITED STATES of America, Dr. John Doe and the A. B. C. Insurance Company, Defendants Theora L. FORESTEL, Administratrix of the Estate of William M. Forestel v. PENN NAVIGATION COMPANY, Inc., Penn Shipping Company, Inc. and Roe Insurance Company
- Cited By
- 1 case
- Status
- Published