Sherwood Lester, Libelant-Appellant v. United States of America, and Marine Basin Company, Respondent-Impleaded-Appellee

The trial judge, who saw and heard the witnesses when they testified, found that libellant was not negligent. This finding must be accepted by us since it is not “clearly erroneous.” I agree with my colleagues in accepting the trial judge’s conclusion that the absence of the guard rail was causally related to the accident. I disagree with my colleagues’ conclusion that, in the circumstances, the Q-100 was nevertheless seaworthy.

The evidence shows that the overhaul contract, made before the accident, specifically called for a guard rail (but that for some reason it was never installed). My…