Full opinion text
WILLSON, District Judge. FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the Court in a Petition for Limitation of, or Exoneration from Liability filed by Consolidated Machines, Inc. Seven persons, i. e., James C. Johnston, as Personal Representative of five estates, those of Joseph K. Winter, Francis L. Winter, Francis Webb, Kenneth Smith and Stephen Richmond, on behalf of the statutory beneficiaries of such decedents, and Lawrence Finley and Clyde Parrish, the latter two of whom claim personal injuries as a result of a casualty which occurred on August 11, 1968, filed claims in the limitation proceeding. Damages for death are claimed on behalf of the beneficiaries of the decedents, under the Jones Act and under General Maritime Law for Stephen Richmond, and under the General Maritime Law for negligence and unseaworthiness on behalf of the other decedents. Damages for personal injuries are claimed by Parrish under the Jones Act and General Maritime Law and by Finley under the General Maritime Law for both negligence and unseaworthiness. The parties have previously agreed and the Court has ruled that the issues for determination in this phase of this case are limited to the liability issues, and the damages, if any, will be determined in a later proceeding to be set by the Court. FINDINGS OF FACT 1. On August 11, 1968, Stephen Richmond was an assistant engineer, a member of the crew of the Fishing Vessel NOVELTY and Clyde Parrish was a cook, a member of the crew of the same vessel. Joseph K. Winter, Francis L. Winter, Kenneth Smith, Francis Webb and Lawrence Finley were employees of Protein Products Corporation and at the time in question in this case were engaged in the capacity of longshoremen unloading a cargo of fish from the F/V NOVELTY. 2. Consolidated Machines, Inc. is a successor to Dan B. Vincent Inc. The Dan B. Vincent Company had been engaged in Tampa, Florida, since 1946, in the design and manufacture of food processing machinery, primarily citrus processing. This company was a family owned company. Dan B. Vincent was President, his son Daniel A. (Ashley) Vincent was Vice President and Mrs. Dan B. Vincent was Secretary-Treasurer. In March, 1968, the Dan B. Vincent Company sold its name and certain patent rights to an out-of-state corporation and changed its name and continued to operate under the name Consolidated Machines, Inc. with the same officers. 3. In 1965 or 1966, Daniel A. Vincent (who will hereafter be referred to as Ashley Vincent), Richard T. Agster, Charles B. Davies and David Kalashian, formulated a plan to build a fishmeal reduction plant on the west coast of Florida. The purpose of this plant was to catch so-called “trash” fish, such as menhaden minnows and thread herring minnows, and convert these fish through a manufacturing reduction process into dry meal of a high protein quality for animal and poultry feed. A number of such plants exist throughout the United States and several are located on the Gulf Coast and on the eastern seaboard. 4. Ashley Vincent, Vice President of Dan B. Vincent, Inc., later Consolidated Machines, inc., is a graduate engineer having graduated from the Georgia Institute of Technology, commonly known as Georgia Tech, in the early 1950’s and having worked and been an officer in the Dan B. Vincent Company or Consolidated Machines since that time. His knowledge of fishmeal plants was limited to having visited two fishmeal plants during the course of the 1950’s and early 1960’s, installing machinery manufactured by the Dan B. Vincent Company in these plants. 5. Richard T. Agster is President of Petroleum Packers, Inc. and is an amateur pilot. He had no knowledge of the fishmeal processing industry. 6. Charles B. Davies attended Muhlenberg University for two years but did not graduate, was an insurance claims adjuster and then in sales and promotion work, and owned a small plastic factory for a short time in the Tampa area. His knowledge of the fishmeal rendering industry was limited to visiting a couple of plants during the preliminary stages of the design and construction of the Protein Products plant. 7. David Kalashian attended one semester at the University of Florida and then went to work as an apprentice in a blacksmith shop and then in a general welding and repair shop, and subsequently from about 1957 to 1967 worked for the Dan B. Vincent Company manufacturing primarily citrus processing machinery but on three occasions he helped in the installation of machinery for fishmeal plants located in Florida, Mississippi and Wisconsin. 8. Richard T, Agster became president of Protein Products .Corporation. Ashley Vincent and David Kalashian were Vice Presidents of the company and Charles B. Davies was Secretary-Treasurer and Plant Manager from the date of the incorporation of the plant until sometime in the Spring of 1968. During this entire period Ashley Vincent was also Vice President of the Dan B. Vincent Company. Except for the degree in general engineering held by Ashley Vincent, none of the four officers had any education or training in architecture, engineering, chemistry or biology. When they decided to build a fishmeal plant in 1956 they did not employ an architect or an engineer (with the exception of Ashley Vincent), a chemist or biologist for the purpose of assisting with the design of such a plant. Neither did they employ any of the above or a general contractor to assist in the construction of the plant. Mr. Ashley Vincent of the Dan B. Vincent Company designed the plant, prepared the plans and specifications and that company manufactured most of the production line machinery, although some of the equipment was fabricated elsewhere or purchased from other concerns. Mr. Vincent, Mr. Kalashian and Mr. Davies supervised the construction of the plant and the production line. Portions of the construction were sub-contracted to sub-contractors such as the construction of the steel building which housed the main plant, construction of the dock, digging of a channel to the dock, etc. Other construction, such as the setting up of the production line was done by plant employees. At the time the plant was placed in operation on October 15, 1967, neither Protein Products nor its originators had consulted with any engineers other than Ashley Vincent, any architects, any chemists or biologists. (When the plant ran into a problem with the Air and Water Pollution Control Division of the State Board of Health of the State of Florida, Protein Products did retain the services of a professional engineer in Gainesville, Florida, to clear the plans from the standpoint of air pollution with the State Board of Health. This engineer, Dr. Harding, did not contribute to the design nor to the supervisions of construction of the plant.) 9. The manner in which the fishmeal rendering process was designed to operate was as follows: A mother slip (fishing vessel) with several purse boats with nets, would go out from the dock located at the plant site and through Charlotte Harbor into the Gulf of Mexico. This boat would search for “trash” fish, either menhaden minnows or thread herring minnows. Schools of these fish were spotted by an airplane flown by a pilot who was employed by Protein Products. When the airplane spotted the school of fish, it directed the mother vessel to the fish by radio and then directed the fishing operation. The fisherman would then leave the mother vessel and get into the purse boats and circle the school of fish with a purse seine net. After the school of fish had been circled, a line would be pulled taut which would close the bottom of the net, thus placing the school of fish in a cup. The net would then be drawn together tighter making a consolidated mass of fish. The mother vessel would then come up to the net, place a large hose into the fish mass and pump the fish mass and water into the cargo holds of the vessel which were refrigerated. When the vessel had completed its catch, it would return to the dock of the Protein Products plant. The fishing was done within an area between the Gulf Coast and 4 miles offshore and 60 miles off the entrance of Charlotte Harbor north and south. Although the vessel was never far from its home dock, it did occasionally stay out overnight. Sleeping and cooking facilities were available aboard the vessel and the crew did cook and eat meals aboard the vessel when she was engaged in fishing. 10. After the vessel returned to its dock, there was in each cargo hold a large pipe called a stand pipe which went through the deck into the hold within a few inches of the bottom of the hold. An 8 to 10 inch flexible line was connected to this stand pipe from the dock. This flexible line in turn was connected to a 10 inch line which ran approximately 300 feet to a scalper tank adjacent to the fishmeal plant. A pump on the dock pumped the fish mass into the scalper tank where the fish were separated from the water and the water was allowed to fall into a holding tank. The fish were then counted by an automatic counter and run through the plant where they were pressed and then cooked. The cooked fish resulted in fishmeal. Oil in the water that was pressed out of the fish was separated and was used as a by-product of the plant’s operation. The water in turn was returned to the holding tank. All cleanup water used in the plant was placed in the holding tank. The water in the holding tank was recirculated, that is, it was returned by way of a 6 inch line which ran partially underground and partially above ground back to connections at the end of the dock. Smaller lines were attached to these connections and were used to spray the recirculated water into the hold of the vessel to liquify the fish mass that was being pumped out by the 10 inch line. The design procedures required this recirculated water, when it contained a quantity of fish solubles, to be run through an evaporator in the plant and completely evaporated. The plant was designed so that no effluent or waste water would be discharged from the plant. 11. After the plant was placed in operation, the recirculated water, which contained fish solubles, was not always evaporated. During the first few months of operation, this recirculated water which contained a substantial amount of fish solubles and scales, was flushed out of the line and the tank between operation and replaced by fresh seawater by placing the end of the 10 inch line into the waters of Charlotte Harbor adjacent to the dock. Sometime prior to August 11, 1968, upon complaints of other fishermen in the area, an inspector of the Lee County Health Department ordered Mr. C. B. Davies, the plant manager, to stop discharging this effluent into the waters of Charlotte Harbor. After this warning, the plant did not flush or clean out the lines by flushing them out with fresh sea water, but on one or two occasions did discharge the effluent onto barges and took it out some distance into the Gulf of Mexico and disbursed it into the waters of the Gulf. 12. On August 11, 1968, the recirculated water in the tanks and the lines was dirty and full of fish solubles and fish scales. The lines and tanks had not been flushed out for at least 7 days and the water in the lines, exposed to the direct rays of the sun, had been allowed to cook in the summer heat. The temperatures ranged as high as 94° Fahrenheit during this period. The necessary heat, anerobic conditions and chemicals were present in the lines to produce highly lethal quantities of hydrogen sulphide gas, a gas that is equally as toxic as hydrogen cyanide, formally used in the death chambers of California. 13. Hydrogen sulphide gas is commonly produced by the deterioration or rotting of protein products or organic matter. The most common example of hydrogen sulphide is that produced by a rotten egg. It is the hydrogen sulphide that gives the rotten egg its unpleasant odor. Hydrogen sulphide is considered dangerous in concentrations between 10 and 20 parts per million. 14. The plans and specifications of the Protein Products plant required approval by the Florida State Board of Health and the local Lee County Health Department prior to construction and operation of the plant. Plans were approved upon the representation of Protein Products Corporation that the water pollution regulations of the Florida Administrative Code, 170-C5, were not applicable in that the plant would produce no liquid discharge other than normal sewage from toilets and lavatories which would be handled by approved septic tanks. The following conditions were also imposed by the State Board of Health, among others: (1) That approval was given with the understanding that upon the installation of the works its operation should be placed under the care of a competent person whose qualifications were approved by the State Board of Health and the operation should be carried out according to best accepted practices and in accordance with the recommendations of the State Board of Health; (2) That the engineer of record on the application, Dr. Harding, should be responsible for the supervision of the construction of the project and upon completion should inspect the project for complete conformity to the plans and specifications and submit a written report of such inspection to the interested County Health Department and to the Florida State Board of Health; and (3) That satisfactory safety devices should be provided. 15. United States Department of Labor, Safety and Health Regulations for Long-shoring, Section 1504.93(c)(d) and (e), provide that before employees are permitted to enter or work in stowage spaces in which there is a possibility of oxygen deficiency, or in which explosive, poisonous, noxious or gaseous cargos have been carried or are stowed, the employer must first ascertain from the officer in charge of the vessel the conditions of the place of work with respect to atmospheric contaminants, and when it is ascertained that the atmosphere in which the employees would be working is immediately dangerous to life or the atmosphere becomes immediately dangerous to life, no employees shall be permitted to enter or remain in the work place until the condition has been made safe. The regulations further provide that when it is ascertained that the atmosphere in which employees would be working would contain gaseous contaminants not immediately dangerous to life, or if it becomes so contaminated during cargo handling operations, no employee shall be permitted to enter or remain in the work place until the atmosphere is made safe or the employees are protected by suitable respiratory protective equipment in accordance with the requirements of Section 1504.102(a) and (b). 16. It is commonly known by chemists and biologists and by students taking these courses in college and by many laymen that deterioration of protein products and organic matter commonly produces hydrogen sulphide gas and that such gas in sufficient concentration is highly lethal. When fish scales and fish solubles in salt water are allowed to rot for several days in the hot sun in mid August, it should be a matter of common knowledge that such condition would probably produce hydrogen sulphide gas in dangerous concentrations if the water and solids are contained in an enclosed space. Hydrogen sulphide gas kills human beings by paralyzing the central nervous system. It is breathed through the nose and the first nerve that is paralyzed is the olfractory nerve so that the higher the concentration, the less likely that the victim will smell the gas and have any warning. Hydrogen sulphide gas will remain in its pure state for an indefinite period. This gas is known to constitute an extreme hazard in coal mining operations and hydrogen sulphide detecting equipment is required by regulations of the United States Bureau of Mines in all coal mining operations. The gas sometimes encountered in coal mining operations was produced millions of years ago by the deterioration of organic matter such as dinosaurs and remained in high concentration within the earth having no way of escape from the pocket in which it was first formed. 17. On the morning of August 11, 1968, employees of the Protein Products plant and some of the crew members of the fishing vessel NOVELTY, which had come to the plant with a catch of minnows for discharge at the plant, prepared to unload the vessel. Two of the plant employees were in the hold of the vessel preparing to push the fish cargo toward the stand pipe for pumping out of the vessel. Within seconds after the pumps were started and water was run into the hold from the 6 inch line, previously described, these two employees fell over onto the mass of fish. A great deal of excitement ensued and in the attempt to rescue these two men, four other employees of either the vessel or the plant fell into the hold. One, Lawrence Finley, was rescued by means of a hook which was used to pull him out. The five decedents died in the hold. One of the decedents, Stephen Richmond, leaned over the hold to see what was going on and was overcome by the gas coming from the hold and fell into the hold on top of the other employees. Two of the employees, including the vessel’s cook Clyde Parrish, got a whiff of the gas coming from the hold and fell backward on the deck. These two employees survived. 18. The cause of the deaths of claimant’s decedents and the injuries suffered by Parrish and Finley was the injection into the vessel’s cargo hold of lethal quantities of hydrogen sulphide gas which had formed in pockets in the recirculation lines while the lines contained sea water and fish solubles over a period of several days or weeks prior to August 11, 1968. A sample of the water scooped from the hold approximately two hours after the disaster contained more than 500 parts per million of hydrogen sulphide gas and it is probable that the hold contained hydrogen sulphide gas in quantities in excess of 1,000 parts per million at the time that the gas was first injected into the hold. No safety regulations had been promulgated by either Protein Products Corporation or Consolidated Machines, Inc.. or its predecessor Dan ü. Vincent, me., from the time the plant commenced operation to the date of the disaster. No safety programs had been initiated by either company. The only sanitary regulation adopted was a sign in the wash room that required employees to wash their hands before entering the plant. A kit, containing a small device for the detection of hydrogen sulphide and allowing the individual user to determine the concentration of the gas, was readily available in the area at a cost of approximately $66 per kit. Neither the plant nor vessel had acquired any hydrogen sulphide detection kits nor did they acquire or have on hand any respiratory equipment. The original plant manager, Charles B. Davies, resigned as plant manager in about April, 1968. He was replaced by David Kalashian. David Kalashian took the job of production manager sometime prior to the time of the accident and the responsibility for plant management at the date of the accident is not clear. The company had had several changes in management. Certainly the management at the time of the accident was not properly trained and equipped by Protein Products Corporation to competently manage the plant and to adopt and promulgate proper safety procedures as required by the Florida State Board of Health. Neither the officers of Dan B. Vincent, Inc. or its successor, Consolidated Machines, Inc., during the design phase of the plant, nor the officers of Protein Products Corporation during the construction and operational phase of the plant made any competent or substantial inquiry to determine the risks or hazards inherent in the fishmeal rendering process or to determine the extent or concentration that hydrogen sulphide gas would be produced from the rotting of fish under conditions such as existed at the time of the accident and for several days prior thereto. CONCLUSIONS OF LAW 1. Protein Products Corporation as the designer of the Protein Products plant and as the owner and operator of said plant had a duty to inquire of experts into the risks and hazards inherent in a fishmeal rendering process and in particular into the risks and hazards which might be incurred by the rotting and deterioration of fish solubles in water, particularly salt water. This it failed to do. 2. The knowledge of Daniel A. (Ashley) Vincent, one of the designers and engineers of the Protein Products plant is the knowledge of Consolidated Machines, Inc., petitioner herein. His said knowledge as a Vice-President of Protein Products Corporation is imputed to Consolidated Machines, Inc. His failure to inquire and to learn what should have been learned of the hazards of the formation of hydrogen sulphide gas by the rotting of fish at the Protein Products plant under the conditions that prevailed on August 11, 1968 is imputed to Consolidated Machines, Inc. and limitation of liability is denied. Limitation must be denied on the additional ground that the vessel was docked at her home port and her owner, therefore, had the means of knowledge of the facts which caused the deaths and personal injuries here involved. 3. The cargo hold of the F/V NOVELTY in which the five claimants’ decedents died and Finley and Parrish suffered personal injury was unseaworthy at the time of the disaster by reason of the fact that it contained hydrogen sulphide gas in rapidly lethal quantities, the inhalation of which by claimants’ decedents and the personal injury claimants caused the deaths and injuries complained of. These deaths and injuries were suffered as a result of an unseaworthy condition of the hold of said vessel. This unseaworthy condition was caused by the activation of unseaworthy equipment, i. e., an unseaworthy recirculation hose attached to the vessel by Protein Products. Since the duty to furnish a seaworthy vessel is absolute and nondelegable, Consolidated Machines, Inc. is liable for the ensuing unseaworthy condition of the hold of the F/V NOVELTY and for the deaths and personal injuries resulting therefrom. 4. Petitioner, Consolidated Machines, Inc. is also liable for the deaths and injuries complained of herein by reason of its negligence in allowing the defectively designed production line to be connected to its vessel at the Protein Products plant when, in the exercise of due care, it should have known of the said defective design and the defective procedure used in the operation of said production line, which negligence proximately contributed to-the deaths and personal injuries complained of. 5. Protein Products Corporation is guilty of failure to use due care in the design, construction and operation of its plant and of failure to warn claimants of the conditions prevailing on August 11,1968 which failure to use due care and to warn proximately resulted in the deaths and personal injuries complained of. 6. Protein Products Corporation warranted to Petitioner Consolidated Machines, Inc. that it would perform its services in a workmanlike manner in unloading the F/V NOVELTY and breached this warranty and shall indemnify Consolidated Machines, Inc. for the damages resulting to Consolidated Machines, Inc. from the deaths of the four employees of Protein Products Corporation and from the injuries sustained by the surviving employee of Protein Products Corporation and for Consolidated Machines, Inc.’s attorney fees and expenses resulting from the defense of said claims. 7. Petitioner Consolidated Machines, Inc. and Protein Products Corporation are jointly and severally liable for the damages resulting from the death of crewman Stephen Richmond of the F/V NOVELTY and for the damages sustained by Clyde Parrish, the surviving crewman of the F/V NOVELTY. The damages resulting from the death of crewman Stephen Richmond and from the injuries sustained by crewman Clyde Parrish shall be borne equally by Consolidated Machines, Inc. and Protein Products Corporation. 8. Consolidated Machines, Inc. and Protein Products Corporation violated the provisions of Section 1504.93(e)(d) and (e), United States Department of Labor, Safety and Health Regulations for Longshoring, and have failed to carry their burden of proof that such violations not only did not but could not have caused the deaths and personal injuries complained of. AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the Court in a Petition for Limitation of or Exoneration from Liability filed by Consolidated Machines, Inc. Seven persons, i. e., James C. Johnston, as Personal Representative of five states, those of Joseph K. Winter, Francis L. Winter, Francis Webb, Kenneth Smith and Stephen Richmond, on behalf of the statutory beneficiaries of such decedents, and Lawrence Finley and Clyde Parrish, the latter two of whom claim personal injuries as a result of a casualty which occurred on August 11, 1968, filed claims in the limitation proceeding. Damages for death are claimed on behalf of the beneficiaries of the decedents, under the Jones Act and under General Maritime Law for Stephen Richmond, and under the General Maritime Law for negligence and unseaworthiness on behalf of the other decedents. Damages for personal injuries are claimed by Parrish under the Jones Act and General Maritime Law and by Finley under the General Maritime Law for both negligence and unseaworthiness. The parties have previously agreed and the Court has ruled that the issues for determination in this phase of this case are limited to the liability issues, and the damages, if any, will be determined in a later proceeding to be set by the Court. FINDINGS OF FACT 1. On August 11, 1968, Stephen Richmond was an assistant engineer, a member of the crew of the Fishing Vessel NOVELTY and Clyde Parrish was a cook, a member of the crew of the same vessel. Joseph K. Winter, Francis L. Winter, Kenneth Smith, Francis Webb and Lawrence Finley were employees of Protein Products Corporation and at the time in question in this case were engaged in the capacity of longshoremen unloading a cargo of fish from the F/V NOVELTY. 2. Consolidated Machines, Inc. is a successor to Dan B. Vincent, Inc. The Dan B. Vincent Company had been engaged in Tampa, Florida, since 1946, in the design and manufacture of food processing machinery, primarily citrus processing. This company was a family owned company. Dan B. Vincent was President, his son Daniel A. (Ashley) Vincent was Vice President and Mrs. Dan B. Vincent was Secretary-Treasurer. In March, 1968, the Dan B. Vincent Company sold its name and certain patent rights to an out-of-state corporation and changed its name and continued to operate under the name of Consolidated Machines, Inc. with the same officers. 3. In 1965 or 1966, Daniel A. Vincent, (who will hereafter be referred to as Ashley Vincent), Richard T. Agster, Charles B. Davies and David Kalashian, formulated a plan to build a fishmeal reduction plant on the west coast of Florida. The purpose of this plant was to catch so-called “trash” fish, such as menhaden minnows and thread herring minnows, and convert these fish through a manufacturing reduction process into dry meal of high protein quality for animal and poultry feed. A number of such plants exist throughout the United States and several are located on the Gulf Coast and on the eastern seaboard. 4. Ashley Vincent, Vice President of Dan B. Vincent, Inc., later Consolidated Machines, Inc., is a graduate engineer having graduated from the Georgia Institute of Technology, commonly known as Georgia Tech, in the early 1950’s and having worked and been an officer in the Dan B. Vincent Company or Consolidated Machines since that time. He had supervised the installation of machinery manufactured by the Dan B. Vincent Company in several fishmeal plants in the 1950’s and early 1960’s. 5. Richard T. Agster is President of Petroleum Packers, Inc. and is an amateur pilot. He had no knowledge of the fishmeal processing industry. 6. Charles B. Davies attended Muhlenberg University for two years but did not graduate, was an insurance claims adjuster and then in sales and promotion work, and owned a small plastic factory for a short time in the Tampa area. His knowledge of the fishmeal rendering industry was limited to visiting a couple of plants during the preliminary stages of the design and construction of the Protein Products plant. 7. David Kalashian attended one semester at the University of Florida and then went to work as an apprentice in a blacksmith shop and then in a general welding and repair shop, and subsequently from about 1957 to 1967 worked for the Dan B. Vincent Company manufacturing primarily citrus processing machinery but on three occasions he helped in the installation of machinery for fishmeal plants located in Florida, Mississippi and Wisconsin. 8. Richard T. Agster became president of Protein Products Corporation. Ashley Vincent and David Kalashian were Vice Presidents of the company and Charles B. Davies was Secretary-Treasurer and Plant Manager from the date of the incorporation of the plant until sometime in the Spring of 1968. During this entire period Ashley Vincent was also Vice President of the Dan B. Vincent Company. Except for the degree in general engineering held by Ashley Vincent, none of the four officers had any education or training in architecture, engineering, chemistry or biology. When they decided to build a fishmeal plant in 1956 they did not employ an architect or an engineer (with the exception of Ashley Vincent), a chemist or biologist for the purpose of assisting with the design of such a plant. Neither did they employ any of the above or a general contractor to assist in the construction of the plant. Mr. Ashley Vincent of the Dan B. Vincent Company designed the plant, prepared the plans and specifications and that company manufactured most of the production line machinery, although some of the equipment was fabricated elsewhere or purchased from other concerns. Mr. Vincent, Mr. Kalashian and Mr. Davies supervised the construction of the plant and the production line. Portions of the construction were sub-contracted to sub-contractors such as the construetion of the steel building which housed the main plant, construction of the dock, digging of a channel to the dock, etc. Other construction, such as the setting up of the production line was done by plant employees. At the time the plant was placed in operation on October 15, 1967, neither Protein Products nor its originators had consulted with any engineers other than Ashley Vincent, any architects, any chemists-or biologists. (When the plant ran into a problem with the Air and Water Pollution Control Division of the State Board of Health of the State of Florida, Protein Products did retain the services of a professional engineer in Gainesville, Florida, to clear the plans from the standpoint of air pollution with the State Board of Health. This engineer, Dr. Harding, did not contribute to the design nor to the supervision of construction of the plant.) 9. The manner in which the fishmeal rendering process was designed to operate was as follows: A mother ship (fishing vessel) with several purse boats with nets, would go out from the dock located at the plant site and through Charlotte Harbor into the Gulf of Mexico. This boat would search for “trash” fish, either menhaden minnows or thread herring minnows. Schools of these fish were spotted by an airplane flown by a pilot who was employed by Protein Products. When the airplane spotted the school of fish, it directed the mother vessel to the fish by radio and then directed the fishing operation. The fishermen would then leave the mother vessel and get into the purse boats and circle the school of fish with a purse seine net. After the school of fish had been circled, a line would be pulled taut which would close the bottom of the net, thus placing the school of fish in a cup. The net would then be drawn together tighter making a consolidated mass of fish. The mother vessel would then come up to the net, place a large hose into the fish mass and pump the fish mass and water into the cargo holds of the vessel which were refrigerated. When the vessel had completed its catch, it would returii to the dock of the Protein Products plant. The fishing was done within an area between the Gulf Coast and four miles offshore and sixty miles of the entrance of Charlotte Harbor north and south. Although the vessel was never far from its home dock, it did occasionally stay out overnight. Sleeping and cooking facilities were available aboard the vessel and the crew did cook and eat meals aboard the vessel when she was engaged in fishing. 10. After the vessel returned to its dock, there was in each cargo hold a large pipe called a stand pipe which went through the deck into the hold within a few inches of the bottom of the hold. An 8 to 10 inch flexible line was connected to this stand pipe from the dock. This flexible line in turn was connected to a 10 inch line which ran approximately 300 feet to a scalper tank adjacent to the fishmeal plant. A pump on the dock pumped the fish mass into the scalper tank where the fish were separated from the water and the water was allowed to fall into a holding tank. The fish were then counted by an automatic counter and run through the plant where they were pressed and then cooked. The cooked fish resulted in fishmeal. Oil in the water that was pressed out of the fish was separated and was used as a by-product of the plant’s operation. The water in turn was returned to the holding tank. All cleanup water used in the plant was placed in the holding tank. The water in the holding tank was recirculated, that is, it was returned by way of a 6 inch line which ran partially underground and partially above ground back to connections at the end of the dock. Smaller lines were attached to these connections and were used to spray the recirculated water into the hold of the vessel to liquify the fish mass that was being pumped out by the 10 inch line. The design procedures required this recirculated water, when it contained a quantity of fish solubles, to be run through an evaporator in the plant and completely evaporated. The plant was designed so that no effluent or waste water would be discharged from the plant. 11. After the plant was placed in operation, the recirculated water, which contained fish solubles, was not always evaporated. During the first few months of operation, this recirculated water which contained a substantial amount of fish solubles and scales, was flushed out of the line and the tank between operations and replaced by fresh seawater by placing the end of the 10 inch line into the waters of Charlotte Harbor adjacent to the dock. About May 24, 1968, upon complaints of other fishermen in the area, an inspector of the Lee County Health Department ordered the plant manager to stop discharging this effluent into the waters of Charlotte Harbor. After this warning, the plant did not flush or clean out the lines by flushing them out with fresh sea water, but on one or two occasions did discharge the effluent onto barges and took it out some distance into the Gulf of Mexico and disbursed it into the waters of the Gulf. 12. On August 11, 1968, the recirculated water in the tanks and the lines was dirty and full of fish solubles and fish scales. The lines and tanks had not been flushed out for at least 8 days and the water in the lines, exposed to the direct rays of the sun, had been allowed to cook in the summer heat. The temperatures ranged as high as 94° Fahrenheit during this period. The necessary heat, anerobic conditions, chemicals and bacteria were present in the lines to produce highly lethal quantities of hydrogen sulphide gas, a gas that is equally as toxic as hydrogen cyanide, formally used in the death chambers of California. 13. Hydrogen Sulphide gas is commonly produced by the deterioration or rotting of protein products or organic matter. The most common example of hydrogen sulphide is that produced by a rotten egg. It is the hydrogen sulphide that gives the rotten egg its unpleasant odor. Hydrogen sulphide is considered dangerous in concentrations above 20 parts per million. 14. The plans and specifications of the Protein Products plant required approval by the Florida State Board of Health and the local Lee County Health Department prior to construction and operation of the plant. Plans were approved upon the representation of Protein Products Corporation that the water pollution regulations of the Florida Administrative Code, 170-C5, were not applicable in that the plant would produce no liquid discharge other than normal sewage from toilets and lavatories which would be handed by approved septic tanks. The following conditions were also imposed by the State Board of Health, among others: (1) That approval was given with the understanding that upon the installation of the works its operation should be placed under the care of a competent person whose qualifications were approved by the State Board of Health and the operation should be carried out according to best accepted practices and in accordance with the recommendations of the State Board of Health; (2) That the engineer of record on the application, Dr. Harding, should be responsible for the supervision of the construction of the project and upon completion should inspect the project for complete conformity to the plans and specifications and submit a written report of such inspection to the interested County Health Department and to the Florida State Board of Health; and (3) That satisfactory safety devices should be provided. None of these conditions were complied with. 15. United States Department of Labor, Safety and Health Regulations for Long-shoring, Section 1504.93(c)(d) and (e), provide that before employees are permitted to enter or work in stowage spaces in which there is a possibility of oxygen deficiency, or in which explosive, poisonous, noxious or gaseous cargoes have been carried or are stowed, the employer must first ascertain from the officer in charge of the vessel the conditions of the place of work with respect to atmospheric contaminance, and when it is ascertained that the atmosphere in which the employees would be working is immediately dangerous to life or the atmosphere becomes immediately dangerous to life, no employees shall be permitted to enter or remain in the work place until the condition has been made safe. The regulations further provide that when it is ascertained that the atmosphere in which employees would be working would contain gaseous contaminants not immediately dangerous to life, or if it becomes so contaminated during cargo handling operations, no employee shall be permitted to enter or remain in the work place until the atmosphere is made safe or the employees are protected by suitable respiratory protective equipment in accordance with the requirements of Section 1504.102(a) and (b), United States Department of Labor, Safety and Health Regulations for Longshoring.. 16. It is commonly known by chemists and biologists and by students taking these courses in college and by many laymen that deterioration of protein products and organic matter commonly produces hydrogen sulphide gas and that such gas in sufficient concentration is highly lethal. When fish scales and fish solubles in salt water are allowed to rot for several days in the hot sun in mid August, it should be a matter of common knowledge that such condition would probably produce hydrogen sulphide gas in dangerous concentrations if the water and solids are contained in an enclosed space. Hydrogen sulphide gas kills human beings by paralyzing the central nervous system. It is breathed through the nose and the first nerve that is paralyzed is the olfactory nerve so that the higher the concentration, the less likely that the victim will smell the gas and have any warning. Hydrogen sulphide gas will remain in its pure state for an indefinite period. 17. On the morning of August 11, 1968, employees of the Protein Products plant and some of the crew members of the Fishing Vessel NOVELTY, which had come to the plant with a catch of minnows for discharge at the plant, prepared to unload the vessel. Two of the plant employees were in the hold of the vessel preparing to push the fish cargo toward the stand pipe for pumping out of the vessel. Within seconds after the pumps were started and water was run into the hold from the 6 inch line, previously described, these two employees fell over onto the mass of fish. A great deal of excitement ensued and in the attempt to rescue these two men, four other employees of either the vessel or the plant fell into the hold. One, Lawrence Finley, was rescued by means of a hook which was used to pull him out. The five decedents died in the hold. One of the decedents, Stephen Richmond, leaned over the hold to see what was going on and was overcome by the gas coming from the hold and fell into the hold on top of the other employees. Two of the employees, including the vessel’s cook Clyde Parrish, got a whiff of the gas coming from the hold and fell backward on the deck. These two employees survived. 18. The cause of the deaths of claimant’s decedents and the injuries suffered by Parrish and Finley was the injection into the vessel’s cargo hold of lethal quantities of hydrogen sulphide gas which had formed in the recirculation lines while the lines contained sea water and fish solubles over a period of several days or weeks prior to August 11, 1968. A sample of the water scooped from the hold approximately two hours after the disaster contained more than 500 parts per million of hydrogen sulphide gas and it is probable that the hold contained hydrogen sulphide gas in quantities in excess of 1,000 parts per million at the time that the gas was first injected into the hold. No safety regulations had been promulgated by either Protein Products Corporation or Consolidated Machines, Inc., or its predecessor Dan B. Vincent, Inc., from the time the plant commenced operation to the date of the disaster. No safety programs had been initiated by either company. A kit, containing a small device for the detection of hydrogen sulphide and allowing the individual user to determine the concentration of the gas, was readily available in the area at a cost of approximately $66 per kit. Neither the plant nor vessel had acquired any hydrogen sulphide detection kits nor did they acquire or have on hand any respiratory equipment. The original plant manager, Charles B. Davies, resigned as plant manager in about April, 1968. He was replaced by David Kalashian. Kalashian took the job of production manager sometime prior to the time of the accident and the responsibility for plant management at the date of the accident is not clear. The company had had several changes in management. Certainly, the management at the time of the accident was not properly trained and equipped by Protein Products Corporation to competently manage the plant and to adopt and promulgate proper safety procedures as required by the Florida State Board of Health. Neither the officers of Dan B. Vincent, Inc. or its successor, Consolidated Machines, Inc., during the design phase of the plant, nor the officers of Protein Products Corporation during the construction and operational phase of the plant made any competent or substantial inquiry to determine the risks or hazards inherent in the fishmeal rendering process or to determine the extent or concentration that hydrogen sulphide gas would be produced from the rotting of fish under conditions such as existed at the time of the accident and for several days prior thereto. CONCLUSIONS OF LAW 1. Dan B. Vincent, Inc., the predecessor to petitioner Consolidated Machines, Inc., as the designer of the Protein Products plant, and Protein Products Corporation, the owner and operator of the Protein Products plant, had a duty to inquire of competent and substantial experts into the risks and hazards inherent in a fishmeal rendering process and in particular into the risks and hazards which might be incurred by the rotting and deterioration of fish solubles in water, particularly salt water. This they failed to do. 2. The knowledge of Daniel A. (Ashley) Vincent, the designer and engineer of the Protein Products plant is the knowledge of Consolidated Machines, Inc. His knowledge as Vice President of Protein Products Corporation is also imputed to Consolidated Machines, Inc. His failure to inquire and to learn what should have been learned of the hazards of the formation of hydrogen sulphide gas by the rotting of fish at the Protein Products plant under conditions that prevailed on August 11, 1968, is imputed to Consolidated Machines, Inc. and limitation is denied. Limitation must be denied on the additional ground that the vessel was docked at her home dock and her owner, therefore, had the means of knowledge of the facts which caused the deaths and personal injuries here involved. 3. The cargo hold of the F/V NOVELTY in which the five claimants’ decedents died and Finley and Parrish suffered personal injury was unseaworthy at the time of the disaster by reason of the fact that it contained hydrogen sulphide gas in rapidly lethal quantities, the inhalation of which by claimants’ decedents and the personal injury claimants caused the deaths and injuries complained of. These deaths and injuries were suffered as a result of an unseaworthy condition of the hold of said vessel. This unseaworthy condition was caused by the activation of unseaworthy equipment, i. e., an unseaworthy recirculation hose attached to the vessel by Protein Products. Since the duty to furnish a seaworthy vessel is absolute and nondelegable, Consolidated Machines, Inc. is liable for the ensuing unseaworthy condition of the hold of the F/V NOVELTY. 4. Petitioner, Consolidated Machines, Inc., is liable for failing to use due care in the design and in the supervision of the construction of the production line at the Protein Products plant which proximately contributed to the deaths and personal injuries complained of. 5. Protein Products Corporation is guilty of failure to use due care in the construction and operation of its plant and of the failure to warn claimants of the condition prevailing on August 11, 1968, which failure to use due care resulted in the deaths and personal injuries complained of. 6. Consolidated Machines, Inc. and Protein Products Corporation violated the provisions of Section 1504.93(c)(d) and (e), United States Department of Labor, Safety and Health Regulations for Longshoring, and have failed to carry their burden of proof that such violation not only did not but could not have caused the deaths and personal injuries complained of. 7. Protein Products Corporation warranted to petitioner Consolidated Machines, Inc. that it would perform its services in a workmanlike manner in unloading the F/V NOVELTY and breached this warranty and shall indemnify Consolidated Machines, Inc. for the damages resulting to Consolidated Machines, Inc. from the deaths of the four employees of Protein Products Corporation and from the injuries sustained by the surviving employee of Protein Products Corporation and for Consolidated Machines, Inc.’s attorney’s fees and expenses resulting from the defense of said claims. 8. Petitioner Consolidated Machines, Inc. and Protein Products Corporation are jointly and severally liable for the damages resulting from the death of crewman Stephen Richmond of the F/V NOVELTY and for the damages sustained by Clyde Parrish, the surviving crewman of the F/V NOVELTY. The damages resulting from the death of crewman Stephen Richmond and from the injuries sustained by crewman Clyde Parrish shall be borne equally by Consolidated Machines, Inc. and Protein Products Corporation as between Consolidated and Protein Products. KRENTZMAN, District Judge. BACKGROUND This case is before the Court in a petition for limitation of or exoneration from liability filed by Consolidated Machines, Inc. Seven persons, i. e., James C. Johnston, as personal representative of five estates, those of Joseph K. Winter, Francis L. Winter, Francis Webb, Kenneth Smith and Stephen Richmond, on behalf of the beneficiaries of such decedents, and Lawrence Finley and Clyde Parrish, the latter two of whom claim personal injuries as a result of a marine casualty, filed claims in the limitation proceeding. Damages for death are claimed on behalf of the beneficiaries of the decedents, under the Jones Act and under general maritime law for Stephen Richmond, and under the general maritime law for negligence and unseaworthiness on behalf of the other decedents. Damages for personal injuries are claimed by Parrish under the Jones Act and general maritime law, and by Finley under the general maritime law for both negligence and unseaworthiness. Judge Joseph P. Willson, Senior Judge of the Western District of Pennsylvania, sitting by assignment on this Court, entered his amended findings of fact and conclusions of law on the liability questions. Judge Willson found for the claimants on the liability issues and determination of the damage issues was, by agreement of the parties, reserved for trial to this Court. Such trial was concluded in August 1972. At that time, as a result of the decision in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), there were more questions than answers concerning the measure and extent of compensable elements of damage. Claimants for those who died sought almost every element of damage that has been found compensable in a wrongful death action, whether maritime or non-maritime, pecuniary or nonpecuniary. The issues are complex and resolution thereof of importance to the parties. Counsel requested and were given opportunity to submit supplemental memoranda of law. Moragne, supra, overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), held that an action for wrongful death based on unseaworthiness is maintainable under federal maritime law, but left the shaping of the new non-statutory action to future cases. Attempts so to do have been valiant, and helpful in this and other circuits. Intervening decisions of the district courts and the Fifth Circuit Court of Appeals in the development, change and re-change on questions of .allowable damages and methods of computation thereof, and the resulting supplemental memoranda of the parties, while of assistance to the Court, necessarily delayed the issuance of these findings. Court congestion and the intruding necessity of court attention to an escalating criminal docket contributed thereto. To date, these issues have been too long undecided. The Court has before it Judge Willson’s findings on liability as to the cause and circumstances of this marine casualty. Among them were these: “17. On the morning of August 11, 1968, employees of the Protein Products plant and some of the crew members of the fishing vessel NOVELTY, which had come to the plant with a catch of minnows for discharge at the plant, prepared to unload the vessel. Two of the plant employees were in the hold of the vessel preparing to push the fish cargo toward the stand pipe for pumping out of the vessel. Within seconds after the pumps were started and water was run into the hold from the 6 inch line, previously described, these two employees fell over onto the mass of fish. A great deal of excitement ensued and in the attempt to rescue these two men, four other employees of either the vessel or the plant fell into the hold. One, Lawrence Finley, was rescued by means of a hook which was used to pull him out. The five decedents died in the hold. One of the decedents, Stephen Richmond, leaned over the hold to see what was going on and was overcome by the gas coming from the hold and fell into the hold on top of the other employees. Two of the employees, including the vessel’s cook, Clyde Parrish, got a whiff of the gas coming from the hold and fell backward on the deck. These two employees survived.” (Finding # 17) “18. The cause of the death of claimants’ decedents and the injuries suffered by Parrish and Finley was the injection into the vessel’s cargo hold of lethal quantities of hydrogen sulphide gas ‘(Hydrogen sulphide gas kills human beings by paralyzing the central nervous system. It is breathed through the nose and the first nerve that is paralyzed is the olfactory nerve so that the higher the concentration, the less likely that the victim will smell the gas and have any warning.)’ ”. (Finding # 18) “1. On August 11,1968, Stephen Richmond was an assistant engineer, a member of the crew of the fishing vessel NOVELTY, and Clyde Parrish was a cook, a member of the crew of the same vessel. Joseph K. Winter, Francis L. Winter, Kenneth Smith, Francis Webb and Lawrence Finley were employees of Protein Products Corporation and at the time in question in this case were engaged in the capacity of longshoremen unloading a cargo of fish from the F/V NOVELTY. (Finding # 1) The Court and counsel in this case have noted and considered almost sequentially the following: Dennis v. Central Gulf S. S. Corp., 323 F.Supp. 943 (E.D.La.1971) Aff’d. 453 F.2d 137 (5th Cir. 1972); In Re Sincere Navigation Corporation, (E.D.La.1969) 295 F.Supp. 610 (1970), 317 F.Supp. 1 (La.1971), 327 F.Supp. 1024 (La.1971), 329 F.Supp. 652, 529 F.2d 744 (5th Cir. 1976); In Re Farrel Lines, 339 F.Supp. 91 (E.D.La.1971); Gaudet, Admx. v. Sea-Land Services, 463 F.2d 1331 (5th Cir. 1972) Aff’d. 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). The Gaudet decision in the Supreme Court appeared to settle most of the questions of the law, but in the meantime an ancillary question as to whether or not a trier of the facts should take into account future inflationary or deflationary trends in computing future lost earnings appeared. See: Johnson v. Penrod Drilling Co., 469 F.2d 897, 906 (5th Cir. 1972) Reh. grntd. en banc 478 F.2d 1208 (5th Cir. 1973), 510 F.2d 234 (5th Cir. en banc 1975); Canal Barge Co., Inc. v. Griffith, 480 F.2d 11, 28, Note 116 (5th Cir. 1973), 480 F.2d 11, 34 denying petition for rehearing but staying issuance of mandate (5th Cir. 1973), 513 F.2d 911, 912 petition for rehearing granted, stay of mandate vacated. (5th Cir. 1975). The apparent answer to that question in this circuit at this date is that inflationary trends should not be taken into consideration. In Re Complaint of S/S Helena, 529 F.2d 744. (5th Cir. 1976). This Court has received evidence, heard argument of counsel and considered memoranda and supplemental memoranda as to the damage issues and being advised finds and concludes as follows: 1. The general maritime law, as explicated in Moragne, governs this case. In Re: Complaint of S/S Helena, supra. Under that case and other applicable cases of the Fifth Circuit Court of Appeals, the appropriate persons or entity may recover where applicable and merited in the case for the following elements of damage: (A) For those who died: (1) Reasonable funeral expense; (2) Conscious pain and suffering before death; (3) Loss of future earnings; (4) Loss of society; and (5) Loss of services. (B) For those who survived: (1) Past and future medical expenses; (2) Past and future conscious pain and suffering; and (3) Past and future loss of earnings. The Court finds that said Joseph C. Johnston, as personal representative, is the appropriate person to recover for all beneficiaries of each of said decedents. 2. The term “society” embraces a broad range of mutual benefits each family member receives from the other’s continued existence, including love, affection, care, attention, companionship, comfort and protection. To preclude double recovery, recovery of loss of consortium includes loss of society. See Gaudet, 414 U.S. at 585 and at 589, 94 S.Ct. 806. Thus, a widow, parent, brother, sister, or child may be compensated for loss of society as so defined. 3. Under the general maritime law, damages are not recoverable for grief of the family for loss of a loved one. It is distinguishable from mental anguish and loss of society. Gaudet, N. 17 at 585, 94 S.Ct. 806. 4. In determining the extent of loss of future earnings the Court should consider decedent’s actual earnings at time of death, his work habits and his prospects for advancement. Possible future inflationary or deflationary trends should not be considered. Earnings should be projected over the decedent’s work life expectancy, which would normally be age 65, but as to certain persons and certain occupations might be longer. If projection of earnings, as such, terminates at age 65, amounts shown by the evidence to be normally expected thereafter, such as social security benefits, should be added. Since portions thereof which would have been spent for decedent's personal use would not have been available to survivors, a percentage for that purpose,, computed after consideration of the habits and practices of the decedent during his lifetime, should be deducted from the gross amount determined. Where yearly estimated earnings are not clearly above the reach of the middle income scale, no deduction should be made for state or federal income taxes. While determination as to loss of future earnings must be based on the evidence and should not be speculative, it is clear that the trier of the facts, in this case, the Court, must make judgment decisions and that such determination cannot be made with complete mathematical precision. 5. The net loss of future earnings should be apportioned among the dependent survivors of each of the decedents as loss of contributions and support on the basis of the evidence as to need, practice and entitlement. 6. The loss of the personal services of a decedent to and for his family, such as required maintenance to the home, managing the financial affairs, etc. are compensable, if sustained. The actual value thereof should be computed for the reasonable life expectancy of the decedent. 7. Certain of the plaintiffs seek awards for a decedent’s loss of future expectation of life and for loss of expected inheritance.. The first is not a recoverable damage and I find that in this case as to each decedent an award for the second would be too speculative and for that and other reasons, are not merited and will not be made. 8. Post award pecuniary damages should be discounted or reduced to present value. The reduction factor is to be determined by the Court from all the available evidence. I find that under the economic issues governing this case, a discount rate of 5 percent is proper. In this case the date of death was August 11, 1968. The date of award will be considered to be August 11, 1972. 9. Prejudgment interest is discretionary with the Court for these claims. In order to compensate the parties fairly and justly the Court will allow prejudgment interest on these claims from the date of award, August 11,1972, at the straight rate of 6 percent. 10. At the time water was run into the hold of the vessel from the 6 inch line Francis Webb was in the hold among the fish, and Kenneth Smith was either on the ladder on the way down from the deck into the hold, or on the floor of the hold near the ladder. Mr. Webb fell almost immediately and made almost no conscious movement thereafter. Mr. Smith attempted to climb the ladder and say something but fell off the ladder; neither man survived. As Judge Willson found, “A great deal of excitement ensued”, in attempts to rescue Messrs. Webb and Smith. As might be expected, under the circumstances, the testimony of the eye witnesses to the tragedy is neither clear or always consi