(Dt8trtct Court, S. D. New York. December 11,1889.)
OOLLtStOlf-INroRtES. TO PASSENGBRS AND SBAMBN-LmEL-PARTIIilS.
Seamen and officers are fellow-serVants, as respects the detsils of navigation on board ship. ll;llQh takes the risk of the other's negligence, and has no claim for against bis own ship or her owners for collisions occasioned tbereby. On collisionoy the faults of both vessels, when both are before the court, the damages l;Ilust be apportioned between them; and the seamen on board one vessel can reo cover onlyhalf their damages against the other, because they are disabled by their relation to their own ship and her owners from any recoverY against the latter, direotly or indirectly.
SAxB-MBASUBB OF DAMAGB TO PUSBNGBR.
Passengers. recover fUll damages, the one.half of which 18 4educted from the amount payable to the other vessel for her own .
BAME-:MEASUBB OF DAMAGE TO SBAMEN.
On claims of seamen for personal injuries. for being thrown into the water by collision, only the actual damage from physical lDjury, or consequent lou of em· ployment, should be aIlow.ed.
Goo. A. Blatk, for petitioners. R. D. Benedi,ct, for respondent.
BROWN, J. The petitioners, of whom five were seamen, and two others government inspectors on the dredge Queen, applied to the court after an interlocutory decree holding the City of Ale:tandria and the Queen both in fault fO,r the collision between them, (31 Fed. Rep. 427,) to be made co-libelants, in order to recover for their loss of personal effects and for personal injuries. No sufficient ,reason to the contrary appearing, the application was grunted. 1. PersOnal Effects. Two of the petitioners have given no evidence as to their claims. The others I find lost personal effects of the values following, there being little strict proof. beyond estimates, of actual present value: Edgar E v e r e t t , . . · e 70 00 60 00 Wehstf'r Brown, 100 00 Clifford Kelsey, NorOlanChisam, 1500 A. P. -. 110 00 James D c , r r e l l , - ' 45 00 James GodWin, 80 00 , Daniel N. Cozzens, 150 00 2. Personal Injuries. Without proofofsome substantial harm, some incapacity for their prdinary work,or some expense incurred, no damages for alleged personal injuries should be awarded to seamen. Without this, the allowance of damages for being thrown into tbe water, and for alleged fright, would in this class of cases, I think, be specially impolitic
·and dangerous. Cozzens, one of the governmept inspectors, was not on board at the collision. The evidence does not show that Chisam or Godwin received any material injuries. The following sums are believed to be a fair compensation for the actual loss or damage to the other seamen, respectively I having reference to the actual damage caused them, or incapacity for work, which as to most of them waS,IlS the evidence shows, very slight: To Dorrell, · $10000 .Brown, 50 00 Sherrick, 30 00 20 00 Everett, ·· To"Kelsey, the other government inspector, who bad DO. duties . on board as a seamen, alldwas DOt in the employ of the owne1'S of. dredge, 250 00
3. The· two government inspectors are entitled to judgment for the fullaums above awarded them. A ;recovery of the full amount is also claimed. for the other petitioners, who were seamen1 as against the City of Alexandria,although the Queen, on which the petitioners were employed, .was also held in fault. Such, doubtless,. would he the! rule in a comDlon-law action aglliinst the City of Alexandria. alone, bepause the common law does not recognize any right of contribution as between wrong-doers. ' The Bernina, L. R. 12 Prop. Di'V.58, 83,93, L. It,.13 App. · Cas. 1, was 'adjudged as a commonclaw action,anq on that ground. But ·the Tu1e in this country is o.therwise in admiralty: causes ",hen both vE:!isels are before the court. . Th.e damage mllst t:henbe tween the. two vesselsinfault,The,Ala,bama, 92 U,S. 695;7'/14 Hl/:dBon, 15 Fed. Rep. 164. Here both vessels are before the court; tbe Qu,een, in the person of the libelant company, which, as the owner, is ;11lQovering a large sum for half of·Qar.damages.. If full damages were recoverthe able by the seamen, as co-lipelants, against the City of latter vessel, upon the authority of many cases,would be entitled to oft'set one-half. that sum against the amount recoverable by the panY,as Owner of the Queen. The sum payable to,the petitioners would be treated just as sums paid by the City of Alexandria for cargo belong·ing to third persons on board either vessel would be treated,.. .Half that damage would be charged against the Queen, .and that would by so much diminish the amount recoverable by the ownera of the Queen against the City of Alexandria. The Elea1wra, 17 BIatchf. 88,105; Leonard v. Whitwill, 10 Ben. 658; The Farnley, 8 Fed. Rep. 629; The Bristol, 29 Fed. Rep. 875. If, therefore, the relation of the seamen qn the Queen to her owners ia $uch that theyhay-e no legal claim for damages against .her ·owners,those owners cannot be required to account for half that claim to the City (jf Alexandria; nor is the latter vessel op that acc()unt to be charged with either more or less than she would; otherwise be .charged · with, viz., one-half the petitioner's damages; and the petitioners Inust lose what they are legally·. disabled froQI claiming against. or ber ownere. R.l0'Q,;B.,piv. 546. ,SuchJs tht rule '!#'JJ:W
New York, 25 Fed. Rep. 149, where the point was considered at some length. 'fhe same rule was followed 'also in the case of The Columbia and The Alaska, 27 Fed. Rep. 704. That judgment was affirmed in the circuit court, (33 Fed. Rep. 107,) and afterwards in the supreme court, (130 U. S. 201,9 Sup. Ot. Rep. 461.) It has also been applied in other cases, as in Leonard v. Whitwill, 19 Fed. Rep. 547, where the amount of personal. effects was considerable; and in The Saratoga, 37 Fed. Rep. 119, which was also affirmed in the circuit court. The remarks made by me in the limited liability case of Briggsv. Day, 21 Fed. Rep. 730, are not followed here. ' It doe!l not appear by whose individual fault the Queen became chargeable. The negligence for which she was held was in having too long a hawser in a dense fog, ina fair-way, and in not giving any wh;stle or other signal to indicate her presence in a very dangerous place. These faults arose in the details of navigation,-a work for which all the ship's company were alike employed, in their several grades. As to such details the seamen, as fellow-servants, took the risk of each other's negligence. The case of Rauroad v. R088, 112 U. S. 377, 5 Sup. Ot. Rep. 184, was not intended, I think, to apply to cases like this. The railroad company was there held liable to the engineer because the conductor in determining the running of the train, and time of starting with reference to other trains on the same road, (in directing which the negligefice arose,) was held to be acting as the representative of the owner, and not merely as a fellow-servant. But in the case of Quinn v· Lighterage Co., 23 Fed. Rep. 363, the latest maritime case in which the question of negligence in tellow-t:tervants has been discussed in the circuit court of this district, the owners were held not liable, although the negligence by which the libelant was injured was the immediate act of the master of the ship, viz., his premature order in setting the winch in motion; because that act was not one that he had done in his character as the representative of the defendant, but was an act that any other co-servant in the same employment might have performed. "The true inquiry!" says WALLACE, J., "is whether the character of the act of the captain was one which it was incumbent upon the defendant [the owners] to see properly performed." The same view is reaffirmed in Railmad 00. v. Herbert, 116 U. S. 642, 647, 6 Sup. Ct. Rep. 590. Applying those cases to,the present, the owners of the Queen are not answerable for the seamen's losses. It would be absurd to say that the ownersowe-d a duty to the seamen that too long a hawser should never be used, or thafsignals in a fog should be properly given by their own vessel. These details belong to the ordinary work of navigation, and to the men employed to conduct it. As to this work, the owners owe no duty to the officers or seamen to see it properly performed. The duty lies the other way, viz., from the ship's company to the owners. None of such acts, moreover, belong to the master to do as the alter ego or special representative of the owner, as in the R088 Case. They may be all performed, and for the most part usually are directed and performed, by others than the master. Though there are many acts in the care and
management of the ship, and of thc voyage, in which the master acts as the representative of the owners, and performs the duties and functions of the owners, such as the maintenance of the ship and her apparel in a safe and seaworthy condition, procuring repairs and supplies, freighting the ship, arranging her her times and places of sailing and stop- . ping, and the discharge of all the general duties and legal obligations of the ship to the seamen, for which acts, if negligently performed, the owners are responsible to the seamen injured, they are not responsible for negligence in the mere details of the ordinary work of navigation on board the ship; because these acts are not at all duties of the master as the alter ego or representative of the owner, nor are they acts as to which the owner owes any duty to the seamen. As to third persons, all the ship's company represent the owner in the work assigned them, and their negligence makes the owner liable. As between themselves, no one more ihan another, in the ordinary work of navigation, represents the owner, or performs an owner's duty, and therefore each takes the risk of the other's negligence. In the case of The Bernina, both in the court of appeal and in the house of lords, it is said that no recovery could be had by the seaman against his own vessel. Per Lord BRAMWELL, L. R. 13 App. Cas. 14; and per Lord ESHER. L. R. 12 Prob. Div. 83. Such, as above stated, has been the practice of this court in numerous instances, and should be followed until some different rule is prescribed in the appellate courts. The judgment will therefore provide that the city of Alexandria pay to the petitioners, the master and seamen, the one-half only of the sums respectively assessed and allowed to them as their damages; and to the two inspectors the whole amount, respectively, allowed to them; the onehalf of the latter amounts to be offset and deducted from the amount recoverable by the owners of the Queen for the 108s of the dredge.
(DI.81lr£ct Court, S. D. New York.
COLLISION-D..uUGES-COST OJ' VESSEL.
November 25, 1889.)
In assessing damaj!;es on total loss by collision, though the cost of construction is competent evidence where no market value is ascertainable, the whole cost should not be given as damage where the vessel could be duplicated for a less sum, and the cost testified to includes various changes and improvements. S. SAME-Loss <1F PROFITS-PERSONAL CONTRACT. Upon a total loss, though compensation is allowed for the profits which would have been realized upon an exIsting charter of the vessel, because the charter is itself thereby lost, this rule does not apply to profits on a personal contract In which any other fit vessel might be used. '
The libelant used three dredges in carrying out a contract wft.h the government for excavating "820,000, more or less, cubic yards of material" in Gedney's channel' and, afror one dredge was sunk, continued the work for 60 days thereafter, they were stopped by the government upon the excavation of 304,000 cubic yards.