!rHE EGYPTIAN MONARCH.
THE EGYPTIAN MONARCH. ROBERTS
THE EGYPTIAN MONARCH.
(District Oourt, D. New Jersey. November 17, 1888.
ADMIRALTY-JURISDICTION-CONFLICT OF LAWS.
A _proceeding in 1'em by It seaman for personal injuries received on board an English vessel. while within English territorial waters, is governed by the law of England, though libelant is a naturalized American citizen. The jurisdiction of the high court of admiralty of England does not extend to a claim for damages by a seaman for personal injuries received on board an English ship while within the body of a county of England.
SAME-ENGLISH HIGH COURT-SHIPPING-PERSONAL INJURIES.
MASTER AND SERVANT-FELLOW-SERVANTS.
A second mate, who superintends the reeling in of servant with a seaman engaged in turning the reel.
is a fellow-
In Admiraltv. Libel by John Roberts against the British steam-ship Egyptian Monarch, Royal Exchange Shipping Company, claimant, for damages for personal injury. A. B. Caldwell and Cha8. Blandy, for libelant. E. B. Conver8, for claimant. .
WALES, J. This is a proceeding in rem to recover damages for injuries sustained by the libelant, a seaman on board the. Egyptian Monarch, on her voyage from England to the United States, in the month of July, 1886. The libelant, a naturalized citizen of the United States, had shipped as an able-bodied seaman. The vessel left the Milward docks, in the port of London, on July 14th, being towed out into the river Thames by a attached to a two-and-a-halfinch wire hawser, which was a part of the tackle of the steam-ship, and fastened at the other end to the aftdeck of the Monarch. At the time of the accident the vessel was going down the river, but was still within the limits of the port of London. The libelant, with another member of the crew, was reeling in the hawser, which had been cast off by the tug, and triced up along-side of the Monarch. One end of the hawser was fast to the reel, a horizontal drum between two uprights, passing thence out through the after-quarter chock j and along the ship's side forward to her waist, where the other end was made fast by a hempen line to the mi.dship davit, so that the bight of the hawser just touched the water. The second mate superintended the work of reeling. Under his direction the boatswain's mate paid out the hawser from the davit by means of the line, and the men at the reel wound it up. During this operation the hawser was paid out more rapidly than it was taken up on the drum, in consequence of which the bight sank into the water at the vessel's stern and was caught by the propeller, which reversed the motion of the drum, causing the handle at which the libelant was working to fly back, and inflict on him serious bodily injuries. of The libelant alleges that the accident occurred through the the second mate, and seeks to hold the owners of the ship liable. There
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is not much dispute over the facts. The ship was well equipped. There was no defect in her machine:ry, or ip the appliljl1ces or means, by which the hawser was being taken tn. The second mate and the boatswain's mate were competent and experienced men, and the work in which they and the libelant were engaged, at the time of the accident, was being done in the regular course of the navigation of the ship. There was nothing unusual in the character of tl}e work, which belonged and was incident to the ordinary duties of the officers and crew. The defenses are (1) that the accident having occurred on board of an English ship while in the territorial waters and witbinthe body of a county of England, the law of Engla:nd must gO\·ern the case, and that by that law the libelant has no lien enforceable in admiralty; (2) that both the officers who were engaged in the work with the lib'elant were fellow-servants of the latter, and neither the ship nor her owners are liable. The law of the ship's home is applied by comity to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves; their liens for wages, and mopes of discipline. The Bra.niford Oity, 29 Rep. 373. And thi8 rule will not be affected by the fact that one 'or more of the are citizens or subjects of different countries. In The M. Moxham, 1 Prob. Div. 107,114, it was held (citing Reg. v. Ander8on, 1 L. R. Cr. Cas. 161) tllat a seaman, having entered into articles to serve on board an English ship, so long as he remained on board that ship was in the same position an English subject would have been. In ,the celebrated case of Phillip8 V. Eyre, L. R. 4 Q. B. 225, 238, which was an action for assault and false imprisonment on the island of Jamaica, Lord COCKBURN, in delivering the judgment of the court on a demurrer to the plea, said: "The rule which obtains in respect of property and civil contracts, namely, that an act, unless intended to take effect elsewhere, shall, as regards its effect and incidents, if a conflict arises between the lex loci and the le!XJfori, be governed by the former, appears to us to be applicable to the case of an act occasioning personal injUry. To hold the contrary would be attended with the most iucollV6nient and startling consequences, and would be altogether contrary to that comity of nations in matters of law to Which effect, if possible, should be given." In The Scotland, 105 U. S. 24,29, the supreme court of the United States held the same doctrine. Speaking. through Mr. Justice BRADLEY, it said: "In administering justice between parties it,1s essential to know by what law. or code, or system of laws, their mutual rights are to be determined. When they arise in a particular conntry or state, they are generally to be determined by the raws of that state. These laws pervade all transactions which take place where they prevaij; and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British ships, and the iryjured party shOUld seek relief in onr courts. we would administerjustice according to the BritiSh law, so far as the rights and liabilities of the parties werEi" concerned, prOVided it was shown what that law was." $ee, also, The Olga, 32 FEld. Rep. 329, and Whart. Confl. Law, § 475. lex loci, it is generally admitted, governs the duties, and rem-
THREGYPTIANMONARCH. edies of seamen, unless modified by treaty stipulations. The Belgenland, 114 U. S. 355,364, 5 Sup. Ct. Rep. 860; The John Ritson, 35 Fed. Rep. 663. In The Ma.ud Oarter,29Fed. Rep. 156, the rule ofcamity, as thus defined, was applied in the most liberal manner. There the libelants claimed a maritime lien against a British vessel for advances and supplies while in a British port. Under the maritime law of the United States advances and supplies of like character would not create any lien; "but," says Judge NELSON, "this vessel is a British vessel, and subject to British law. Under the circumstances it is the duty of the court to administer and apply the British law exactly as it would be applied if thevessel were in an English court. * * * As the lien would be enforced against this vessel in an English court, it can, as between the parties here, be enforced in this court." It is clear,therefore, in the light of the authorities just cited, and which could be multiplied, if necessary, that, under the application of the rule of comity, the right of the libelant to redress must be governed by the law of England; and what that law is in relation to cases of this kind abundantly appears from an examination of the English books. The industrious research of his proctor has nut produced any antJIority to show that the law of England has ever recognized the existenceofa. maritime lien for personal injuries such as are alleged to have been received by the libelant, under the circumstances and in the manner set forth in his libel. On the other side, the conclusion is successfully as" tablished that the English courts have not only ignored the creation of any lien under such circumstances, but that they have expressly denied it. In The Public Opinion, 2 Hagg. Adm. 398, a collision took place in the river Humber, 20 miles up from the sea, but within the body of a county. Sir CHRISTOPHER ROBINSON, J., said: "That since the statutes of 18 Rich. II. c.5, and of 8 Hen. VI. c. 11,it h'aS been strictly held that the court of admiralty cannot exercise jurisdiction in civil eRseS,or causes of action arising infra corpus comitatus. * * * No case has beeJ:1, found to support such proceedings, and I think I can venture to say that none bas occurred witbin a pretty long experience which Ihav6 had in the practice of this court." . This decision· was rendered in 1832. The admiralty court act (1861) 24 Viet. c. 10, extending the jurisdiction of the high court of admiralty, provides, by section 7, that the said court shall have jurisdiction over any claim for damage done by any ship, whether within the body of a county or upon the high seas; but it has been held that theword "damage," as used in the statute, was not intended to apply to injuries done to the person, but is solely applicable to mischief done to property. Smith v.Brmpn, (1871,) L. R. 6 Q. B. 729; The Vera Cruz, 10 App.Cas. 59. Lord COCKBURN, in Smith v. Brown, supra, commenting on the. distinction between damage done to property and injury to the person, says that the distinction is not one of verbal criticism, b.ut of a substantial character,.asappears from the fact that this distinctive phraseology haa been observed in subsequent statutes relating to the same or analogous subjects·.
On the part of the libelant it is contended that this defense is a mere question of remedy,and that he is entitled to redress in this court, irre, There would be force in spective of any local restriction in this position if the form of action only was in dispute, but the objection to the present proceeding lies deeper, and concerns the substance of the law. This is not the case of a process of attachment. to compel the appearance of a defendant. The libelant sets up a charge against the ship of a specific Hen, and asks for a decree of condemnation, and sale to satisfy his claim. If he is not asserting a right of property , pro tanto, in the ship, he assumes the right to hold her as security for the payment of whatever damages may be awarded to him. In other words, he is suing for the enforcement of a lien which does not exist under the law of England, where his personal injuries were received, and where, if at all, the lien must have been created or recognized in order to entitle him to a decree of condemnation in this court. He may have a common-law remedy, but the proceeding here is in rem, and is to be treated according to the law and practice of admiralty courts, and is not a remedy afforded by the common law; it is it proceeding under the civil law. The Moses Taylor, 4 Wall. 431. It is only when a maritime lien arises that it can be enforced· in admiralty. The Ouy of Panama, 101 U. S. 462. Who are fellow-servants? There can be no controversy over the rule -now long settled,both in this country and in England-that, where several persons are engaged in the same employment, and one of them is injured by the negligenceof another, the master or employer is not liable, provided always that he is not negligent in their selection or retention, or in providing adequate materials and means for the work; it being implied in the contract of service that the servant takes upon himself the risks arising from the negligence of his fellow-servants in the same employment. Railroad Co. v. Ross, 112 U. S. 383,5 Sup. Ct. Rep. 184; Wilson v. Merry, L. R.1 H. L. Sc. 326; .'!forgan v. Railway Co., L. R. 1 Q. B. 149. Admitting, then, that the libelant was injured throngh the negligence of the second mate, and that he was himself without fault, yet, if this officer was his fellow-servant, the ship and her owners are exempt from liability. It will be seen by an examination of the English cases cited and commented on by Mr. Justice FIEI,D, in Railroad 00. v. Ross, supra, that the second mate and libelant would be considered asieHow-servants, on the ground that they were in the same common employment, and engaged in the same common work under that common employment. Conflicting decisions on this question may be found in our own courts,-federal and state,-but numerous and respectable authorities among them classify the subordinate officers of a ship as fellow-servants with the memopinion is bers of the crew, who are subject to their orders. The that, when the master is on board, the subordinate officers and seamen are fellow-servants. U. S. v. Huff, 13 Fed. Rep. 630; Halverson v. Nisert, 3 Sawy.562; Olson v. Olyde, 32 Hun, 425; The Oity oj Alexandria, 17 Fed. Rep. 390; Loughlin v. State, 105 N. Y.159, lIN. E. Rep. 371; Malonev. Pran8portation Co., 5 Biss. 315; The E. B. Ward, Jr., 20 Fed. Rep. 702; Benson v. Goodwin, (Mass.) 17 N. E. Rep. 517. In The Oity of Alexan-.
THE JAMES H. PRE!>TICE.
dria, and in Malone v. Tramportation Co., the court go to the extent of holding that a ship-owner is not liable for injuries received on board a vessel by one of the crew through the negligence of any of its officers, provided the ship is well equipped, and the officers are competent; this rule being founded on the principle that subordinates must be deemed to have ent.ered upon the service with the understanding that they took their chances of negligence or carelessness on the part of others engaged in the same employment; and it is also held that the analogies of the municipal law do not always apply to accidents happening among officers and crew on shipboard. The foregoing review of the law, as applicable to the evidence, sustains both defenses, and there must therefore be a decree entered dismissing the libel.
et al. v.
(Diatrict Oourt, E. D. Micltigan.
MARITIME LIENS-MATERIALS FURNISHED-PRINCIPAL AND AGENT.
S., sole owner of a barge, contracted with B. to repair and improve ber. While the work was going on he agreed to sell a half interest in her to K., and further authorized K. to superintend the work, and to settle the bills therefor. He subsequently conveyed to him his half interest.. Libelants. knowing nothing of the contracts with B. and K., and supposing K. to be a part owner, furnished Inmber to the contractor B., which K. inspected and promised to pay for. Held, that S. had so conducted himself as to lead libelants to believe that K. was authorized to bind the vessel. and that they had a lien for the amount of their bill. Under a statute giving a lien for materials "furnished" in and about the building and repairing of water craft it is sufficient to show that the materials were ordered for and delivered to or near the vessel, though it appeared that a part of them were subsequently diYerted, and used for other vessels. The act does not require proof that the materials were actually incorporated into the vessel sought to 1?e charged.
SAME-USE OF MATERIALS.
In Admiraltv. Libel for material furnished. On libel for"lumber furnished the steam-barge James H. Prentice, a domestic vessel, while being repaired at Detroit, in March and April, 1886. The following delimse was interposed by Lewis D. Sanborn and John Kelly, claimants, viz. : That in January, 1886, Sanborn, who was then sale owner, made a contract with one Beaudry to build a cabin upon and double deck the Prentice, furnishing all work and material necessary for that purpose, for $3,850; that about January 10th Beaudry began work under his contract, and continued the same until April When he abandoned the job, leaving it incompleted, whereby Sanborn suffered