339 F2d 205 Johnson v. Mobile Towing & Wrecking Company

339 F.2d 205

O'Dell JOHNSON and J. W. Johnson, Appellants,
MOBILE TOWING & WRECKING COMPANY, Inc., a corporation, Appellee.

No. 21349.

United States Court of Appeals Fifth Circuit.

Dec. 8, 1964.

W. Borden Strickland, Mobile, Ala., J. Paul Fitzgerald, Milton, Fla., for appellants.

Alexander F. Lankford, III, Mobile, Ala., Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel, for appellee.

Before JONES and BELL, Circuit Judges, and HUNTER, District Judge.


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The appellants sought recovery by an admiralty libel against the appellee as owner of the Tug Captain Miller, seeking recovery for personal injuries sustained by the appellant, O'Dell Johnson, upon falling from the deck into the engine room of the appellee's tug. The district court found that the appellee had breached no duty owed to Mrs. Johnson and that her injuries were in no way proximately caused by the fault, carelessness, recklessness or negligence of the appellee. The appellants challenge these findings and urge that liability should have been found under the principles stated in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. Factual differences distinguish the Kermarec case from the case before us. The rule there stated is not applicable here. The judgment of the district court was fully justified by the evidence and is