ployer is never responsible for an injury sustained by his servanir or employe, in consequence of the negligence of nfellow-servant, so. long as the employer exercised due diligence in the employment and retention of the latter. But this partial rule has been so modified in the national courts, and those of many of the states, that "where a servant is authorized and required by his employment to furnish or provide suitable material or appliances for the work in which his fellow-servants are engaged, whether under his special direction or otherwise, and one of them is injured by reason of his neglect or omission in either of these respects, the common master or employer is responsible in either case." Gilmore v. Northern Pac. By. Co., 9 Sawy. 563; S. C. 18 Fed. Rep. 869; Hough v. Railway Co., 100 U. S.213; Chicago, M. li St. P. By. Co. v. Ross, 112 U. S. 377; S. C. 5 Sup. Ct. Rep. 184; Northern Pac. Ry. Co. v. Herbert, 116 U. S. 647; S. C. 6 Sup. Ct. Rep. 590. And it is very doubtful if the decision in Couch v. Steel would now be followed in England; especially in the face of the British shipping act. passed in the same year, giving to a fourth of the crew of a vessel a right to have a survey. and making unseaworthiness a suffipient excuse for desertion, or a refusal to join the ship after signing the articles. 1 Kay, S. & S. 575. But admitting, for the occasion, that this court ought to folhw the ruling in Couch v. Steel, in a suit by a British seaman against a , British vess,el, it is not in point.- The circumstances are different. In that case it did not appear toat the owner had knowledge of the unseaworthiness of the vessel; but in this one there was actual knowledge on the part of both the master and the mate of the unsound and unseaworthy condition of the vessel in the particular of this rope, coupled not only with willful negligeuce, but wanton indifference, on the part of the former. It is admitted that the lnaster stands for and represents the owner while in charge of the vessel, and, in my judgment, the mate, when not in the immediate presence of the former, does also. The Ohand08, 6 Sawy. 548; S. 0. 4 Fed. Rep. 645. The point of contributory negligence is the one most insisted on by the defense. Considerable testimony was taken on the question of what is the purpose of the crane-line, and whether it may properly be used as a foot-rope. The crew of the vessel, and others who had been to sea as seamen and mate, testified that it was used. when convenient, as a foot-rope. Several masters of British vessels in this port swore that it ought not to be used as a foot-rope. The master, while stating that it is not primarily a foot-rope, iu effect admitted that it might be and was so used, with care, by holding on to the stay or shroud with one hand, or, as he aptly put it, the man keeping "one hand for himself and the other for bis owner." The evidence and argument of the defense concerning the libelant's use of the crane-line assumed that he stood thereon with both feet. and pulled at the sheet with both hands, thus putting both his weight
and strength on the rope, without holding on to anything. But there is no evidence in support of this assumption. The only evidence on the subject is the testimony of the libelant. He says that when he found the lower end of the sheet was foul, and would not come up. he concluded that the hooks 011 the end of it were fast in the jib. halyard on the port side of the vessel. The bark was going about, and dispatch was necessary, and so, for the purpose of loosing the sheet, he went out on the crane-line, as nearly directly over it as he could, and, holding on to the shroud with one hand, shook the sheet with the other for the purpose of loosing the hooks, when the line gave way, and precipitated him to the deck. The libelant impressed me favorably. His manner was modest, and his speech moderate, and he spoke as one telling the truth. In addition, his story in this respect is intrinsically probable. Any seamen would know that, if the hooks were fast, pulling on the sheet, and particularly in the line from the side of the vessel to the foretop, was not the way to loose them; and that the proper method was to get directly over them, as near as pas· sible, and shake them loose, as an angler would his hook when caught on something in the bed' of the stream. Substantially, this is the libelant's account of how he went on the crane-line, and what he did there. In The Ghandos, 6 Sawy. 547, S. C. 4 Fed. Rep. 645, speaking in the light of the evidence in that case, which was limited, and from no other knowledge 01' information, I said, substantially, that the crane·line is not primarily a foot-rope, but intended to keep the stays steady; that it is often used by seamen in going from the top to cast off the stop on the foretop·gallant halyards, but that it is considered an insecure footing, and one that ought not to be used without other support, or more than ordinary caution. On further acquaintance with the subject, and particularly from the evidence in this case, I am satisfied that this statement of the purpose and use of this rope in the equipment and conduct of a vessel is somewhat narrower tban the fact, as known and practiced by seamen. 1 think the crane-line is very commonly used to step or walk on, and even to do light work on,-sucb as to pass a rope,-but not to stand and heave and haul on; but, generally, with one hand on, or arm or leg around, the shroud or stay, as a security. And such was the use made of it by the libelant. Indeed, the use he made of it would not be considered negligent, even under the view taken of the matter in the case of 'l'he Ghando8. In tbat case the libelant, a heavy man, went up the forerigging, and onto the crane·line, in the night, to cast off the stop on the foretop-gallant halyards, aud, instead of holding on to the shroud or stay in any manner, sat or stood on the line with all his weight, while using both hands to loose the stop, when the line parted at the hitch neal' the stay, and he fell. It is also suggested that the libelant might, with care, have observed the faulty condition of the rope before going on it. But the
line gave way at the shroud, and the chafing of the seizing, as it rubbed against the outside of the shroud, would not be apparent to one coming onto the line from the opposite side thereof, as the libelant did. In conclusion, in my judgment, the libelant was not guilty of contributory negligence in going out on the crane-line when and as he did, but his fall therefrom, and the injury sustained thereby, are directly attributable to the unsound and unseaworthy condition of this rope, resulting from the willful negligence and wanton indifference of the master in the premises. It only remains to be considered what damages the libelant is entitled to recover. According to the articles, he is in his thirty-first year. His occupation is that of a seaman, at which he can probably earn $150 a year besides his living. He will not be able to do duty as a seaman again; but he can work at any common labor where he can have a smooth, flat surface to stand or walk on. Assuming that his power to earn money is permanently diminished one-third by the injury, I will allow him $1,000 on this account, and to this add $500 as a compensation, in some measure, for the bodily and mental suffering he sustained during the four months which elapsed between the date of his injnry and his removal to the hospital, and the cost and expense of maintaining this suit for redress. It is admitted in the answer that the sum of $70.70 is due the libelant on account of wages. Although the voyage for which the libelant shipped does not terminate in this port, but in the United Kingdom, still it is practically at an end. The man is yet on crutches, and will be unable to do a seaman's duty when he can walk without them. He has been sent to the hospital by the master, at his own request, which, under the circumstances, is equivalent to a rescission of the contract. It is also better for the owners that he be paid his wages, and allowed to leave the vessel, and thereby absoLve it from any further responsibility on his account. To this amount of $1,570.70 there probably ought to be added the sum of $500, in consideration of the neglect and indifference with which the libelant was treated by the master after his injury. Instead of going forward every day, as he should have done, and looking after the man's leg, and doing what he could to make him comfortable, he contented himself with one or two visits, and occasional inquiries of the cook and steward; and was even cruel enough, on some occasions, to have the man hobble aft, without a crutch, to see him, and get a dose of castor oil. According to his own statement, the master did not visit the libelant after the accident until the next day, but whether early or late he does not state. But, under the circumstances, I prefer to err in fixing the amount of damages against the libelant rather than in his favor. 'rhe libelant is entitled toa decree for $1,570.70, and the costs and disbursements of the suit.
(District Court, N. D. New York. October 9,1886.)
COLLISION-TUG AND Tow-NEGLIGENCE-RECOVERY AGAINST ONE OR BOTH VESSELS.
When a collision is caused by the negligence of two vessels, proof that the disaster could have been prevented by one of them is not sufficient to exculpate the other. The entire may be recovered from one vessel, though both be in fault, if one only is served.
In Admiralty. George Clinton, for libelant. S. B. Porter, for claimant.
COXE, J. The owner of the canal·boat S. H. Fish brings this action against the steam-tug Troy to recover damages occasioned by her negligence in causing, or contributing to cause, a collision between the canal-boat and the steam-tug Hambler. In the libel, which was filed July 13, 1880, both tugs were made parties, and the collision is there attributed to their joint negligence. For some reason, not fully explained, the Hambler was not served with process, and is now, beyond the jurisdiction of the court. On the morning of the first of November, 1879, the libelant employed the Troy to tow his canal-boat, from a point in the Erie canal near Baker's dock, to the Niagara elevator, on the Buffalo river, where she was to take in a cargo of wheat. The route lay through slipi No.1 and the Erie basin. The channel in the basin at this poiIit, owing to a sunken barge and shallow water opposite the slip, is about 238 feet wide. On the day in question three vessels were lying at the southerly cornel' of the slip, projecting into the basin some 85 feet; thus reducing the width of the channel to 153 feet. Two vessels of about similar dimensions were lying abreast at the northerly corner of the slip. The canal boat was about 97 feet in length, the Troy 48 feet, and the line between them 7 feet, so that the distance from the stem of t,he tug to the stern of the canalboat was 152 feet, or but a foot less than the width of the channel between the vessels and the sunken barge. The Hambler, a larger tug than the Troy, was proceeding, at the usual rate of four miles an hour, down the Erie basin, when the Troy, with her tow, headed west, and going at the rate of three miles an hour, emerged from the slip. The Troy proceeded on her course; and, when she was within a short distance of the sunken barge, the canal-boat, which then was moving directly across the channel, was struck by the Hambler on her port side, 1t>rward of amidships, and nearly opposite the forward hatch. The blow caused her to sink soon afterwards.
by Theodore M. Etting, Esq., of the Philadelphia bar.