criminate between them Rato the extent of the negligence of each and the share of the result produced by each." Moak. Undo Torts, 280. These considerations of general application in the law courts of the land lose no force in determining what justice and equity require in the admiralty courts. From which it is easy to see that, while the negligc:il1ce of the libelant cuts him off from the right to compensf.ttion, the negligence of the respondent does not stand excused. Which may be taken to mean that the libelant can recover nothing as compensation, and that the respondent or claimant in this case shall pay the expenses. Libelant was laid up in the hospital 40 days, and thereby lost that many days' work, which at that season was proved to have been worth $7 per day in his occupation as a screwman, amollnting to say $280. There is no evidence as to 8urg(lOn's fees, or medicines, or nursing, except that $40 was paid for libelant's admission to the hospital, making with the labor lost the sum of $320. 'This amount with the costs of thiti case will be decreed against the claimant as the ship's sbare of the expenses resulting from an injury to which the ship contributed through the negligence of her master and officers. 'I'o allow th.e libelant more would be to compensate and reward negligence, and in my opinion would not be in accordance with the exercise of a conscientious discretion, in applying enlarged principles of justice and equity. It would approach very near to judicial liberality. Under the evidence in the case the libelant is not so badly injured but what he can earn support for himself and family, and there is nothing in evidence to show that either is likely to become a burden on the community, so that there is no reason to mulct the ship in the interest of the general public. A decree will be entered for libelant for the sum of $320 and costs.
(Circuit Court, E. D. Louisiana. April 11, 1884.
In cases of marine tort courts of the admiralty are not bound by the common and civil law rules governing cases of contributory negligence, but will, in the exercise of a sound discretion, give or withhold damages according to principles of equity lind justice, considering aU the circumstances of the case. The _Iorer, ante, 135, followed.
2, SAME-LIABILITY OF SHIP-CONTRIBUTORY NEGLTGENCE.
Where the ',ihelant was injured severely thro'lgh the negligence of the ship. his own negligence contributing thereto, so much so that without his contributory negligence he would not have been injured at all, held that while equity will not justify his being rewarded for his negligence at the expense of the Sllip,
1Reported by Joseph P Hornor, Esq., of the New Ol'leans bar.
equity and good conscience will permit that the ship sha.ll be held responsible for its negligence resulting in injury to the extent of paying for the direct care, attention, medical services, and expenses required for the injured party, not as compensation for the injury, but as required by deceney and humanity from a party without whose fault there would have been no injury.
Under the facts of this case, and the libellant undoubtedly believing tnat he was entitled to compensation, and prosecuting in good faith, costs were taxed against the claimant.
Admiralty appeal. Geo. L. B1'ight, for libelant. J. Ward Gurley, Jr., for claimant. PARDEE, J. The libelant complains that he was a seaman on the Wanderer; that there was on the steamer a ladder leading from the upper deck to the steerage, and to the lower deck; that this ladder was always fastened to the lower deck so as to prevent it from slipping; that the ladder and the cleats that fastened it were removed, and that the ladder was put back without cleats or fastenings of any kind; that when he was going down this ladder the ladder slipped, he fell, suffered great pain and injury by the fall, injured his groin and testicles, so as to unfit him for work for at least six months. He charges that his injuries resulted from the carelessness of the master and owner of the vessel in not properly securing the ladder. The answer denies that libelant fell or was injured as alleged, and alleges that the ladder was at all times properly secured, and had never been removed; that the libelant had no right to go down the ladder, and if he did go down the same it was not in the line of his duty; and that the libelant's injuries, if he was injured, were not caused by the neglect or carelessness of the respondent. From the evidence it seems clear that the ladder in question was not properly secured on the day libelant alleges he received injury by its falling. It had been secured prior to that time, but in repairing some pump underneath, the ladder was removed, and by the time it was replaced the proper cleats at the bottom had disappeared. The evidence on this point is uncontradicted, except by the master of the ship, and his testimony in relation to the cleat is inferential and negative in character. That the ladder slipped and fell when libelant was going down it, and that he was injured thereby, depends entirely upon the evidence of libelant himself. No person saw him go down or come up, saw the ladder fall, or saw it replaced. At the time he neither called for assistance nor reported to anyone that he had fallen. That night he told a comrade he had fallen with the ladder, and complained of severe and painful injury. It seems that he tinned on duty for several days, when the mate, seeing bim limping, inquired what was the matter, and was told by libelant that he had fallen down with the steps in the steerage, and then the mate made entry of the complaint in the log. It seems that the master was first informed, and by libelant, of the alleged hurt, when the ship
arrived at Belize, but he swears he had no idea that libelant had fallen down a ladder until the ship returned to New Orleans, when his owners told him that such a claim was made. . The character and extent of the alleged injury depends also to a degree upon the unsupported evidence of libelant. One of his comrades, three or four days after the alleged injury, saw that he bad a large and painful swelling and bandaged it up. The surgeon in oharge of the hospital at Belize, where libelant went for six days while the Wanderer remained in port, testified that he treated libelant for acute orchitis; that he could not tell what caused it; that he was discharged cured; and that he did not think any permanent injury would result from his affection, and that in his opinion he would have been able to resume work in a few days after being discharged. "Orchitis is inflammation of the secreting structure of the testicle. It occurs sometimes spontaneously in an acute way. It is the malady of the testicle seen in cunnection with mumps, and is most apt to result from local injury. The pain in .orchitis is intense and often of a peculiar sickening character. A chill may precede its outbreak. The natural terminations are in resolution, atrophy, or abscess. The first two occur in the spontaneous variety of orchitis and in that seen with mumps. Abscess is not often seen, except after local violence." See Wood Household Practice, vol. 2, p. 528. The surgeon's testimony and certificates in the record show recovery, but say nothing of atrophy or abscess in the case of libelant. The libelant swears to a swelling of the testicle, to continuous pain, and to inability to work as a sailor; but that he had declined to go to the hospital here, was being treated by no physician, but was being treated by a druggist internally and externally, and that he was laboring a little at stevedoring, hooking on the tubs and driving the steam winch. According to the medical authority quoted supra, the natural termination of the libelant's complaint should be recovery, a shrinking or wasting away of the organ, or an abscess. He repudiates a l'ecovery; but he is silent as to atrophy or abscess, neither of which, had it happened, could have escaped his attention. As to whether the libelant had any right to go down the ladder into the steerage the evidence is conflicting, the preponderance being against the right. He was not sent there on any duty; the ship's stores were there, and the regulations of the ship prohibited the crew from going there unless sent on duty. The libelant contends, and is supported by three several witnesses, that the crew were compelled to go there for fit drinking water, the supply from the deck pump, which had recently been repaired, being oily and uufit, and that the habit and necessity of the crew to go therefor water was well-known to and not forbidden by the officers. This is denied by the captain, first mate, seClond mate, and steward. It does not seem probable that enough oil would be likely to be used about the pump, which was what is called a pitCl1er pump, to affect the water for any time, and that
fact not be generally known on the ship. There is IrO doubt under the evidence that water from the pump on deck was continuously used for drinking and cooking on that voyage. On thewhole showing it seems that the most favorable case that can be- made for the libelant is that he was injured severely through the negligence of the ship, his own negligence contributing thereto, so much so that without his contributory negligence he would not have been injured at all. As this court has just held, in the case of The Krplorer, ante, 135, in cases of marine tort, courts of the admiraltyar-e not bound by the common and civil-law rules governing cases of contributory negligence, but will, in the exercise of a sound discretion, give or withhold damages according to principles of equity and justice considering all the circumstances of the case. The libelant's case under the proof is not a strong one, either as to :nis actually having been injured, or as to the extent of his injury. The fault of the ship was accidental. It is not equitable to reward a person who has helped to injure himself. The libelant is a laboring man, without means. He was a sailor aboard a ship at the time he received injury. Considering the manner in which he received injury, his service at the time and his estate, while equity will not justify his being rewarded for his negligence at the expense of the ship, equity and good conscience will permit that the ship shall be held responsible for its negligence resulting in injury to the extent of paying for the direct care, attention, medical services, and expenses required for the injured party; this not as a compensation for the injury, but as required by decency and humanityfrom a party without whose fault there would have been no injury. It seems, however, in this case that libelant was sent to the hospital in Belize, where he remained until pronounced cured; that he returned to the ship, and thereon to this port, was required to do no work, and received his pay for the entire time of the trip. That on his arrival here he was offered by the ship further hospital treatment, which he declined. The treatment he received was without expense to him, and he proves in this case no expenditures for care, attention, medical services or medicines. If any such expenses had been proved they would be allowed. There remains to determine responsibility for the costs in the case. These are also within the jurisdiction of the court. The libelant undoubtedly believed and will probably always believe that he was entitled to compensation from the ship for his injury, and to that extent the prosecution has been in good faith. It is known to the court that he prosecuted his case in the district court in forma patlpe1'is, and the on the bond of his proctor, record shows that he comes to this who, undoubtedly, believed that his client's case had merit. Under the facts found in the case as to the ship's negligence and these circumstances as to costs; it would seem fair and just that the costs
should be taxed to the claimant. The decree of the district court dismissed the libel, but decreed no costs. The decree of this court will be entered dismissing the libel, but directing the claimant to pay costs.
(Circuit (Jourt, E. D. Louisiana. March 27, 1884,1
CHARTER-PARTY-COMMENCEMENT OF LAY DAYS.
Charterers had furnished cargo and asked and received bills of lading on December 7, 1880; and furnished more cargo on December 9th and again on December 11th, on which last day the ship was first fully prepared to receive cargo at all hatches. Held, that the action of libelants in furnishing cargo and receiving 'bills of lading therefor on December 7th ought to estop them from denying that the lay days for loading had then commenced.
Where the charter provided that .. eighteen working days, 8undays excfJlted," should be allowed, that provision shows that custom was not to control, and the exception of Sundays was the intent and meaning of the parties as to what should be considered working days, and therefore" rainy days" could not also be excepted. A technical viOlation of the charter-palty, otherwise fully executed, would not entitle either party to claim the full penalty naDled in the contract.
SAME-TECHNICAL VIOLATION OF.
Admiralty Appeal. E. W. Huntington and Horace L. Dufour, for libelants. James R. Beckwith, for claimant. PARDEE, J. The original libel demands the recovery of $23,000, the estimated amount of freight under charter-party, penalty for alleged violations of the charter-party, to wit: (1) That the master of the ship claimed and exacted demurrage to which the ship was not entitled; (2) that cargo was stored in improper places, thereby causing loss to libelants by forcing them to provide additional cargo for the ship; (3) that the master refused to give draft, as per terms of the charter-party, for amount of excess of actual freight, as per bills of lading, over amount fixed by the charter-party; (4) The supplemental libel alleged that the steam-ship was liable to the libelants in the sum of $3,163.45, for advances, difference of freight, and commissions; (5) and for the further sum of $1,162.50, amount of demurrage illegally exacted. 1. As to the matter of demurrage, the charter party provides as follows:
"Eighteen working days, Sundays excepted, are to be allowed the said freighters (if the steamer be not sooner dispatched) for loading, and to be discharged with aU possible dispatch, as customary. And ten days on demur1Reported by Joseph P. Hornor, Esq., of the Ne w Orleans bar.