THE SEMINOLE. 1 FARNHAM
(District Oourt· .E. D. New York. May 22,1890.)
1. MA.BI'ftHE LIEN-WAIVER-LACHES.
In Admiralty. . On exceptions to libel for wages. Charles E. Le Bar-Mer; for libelant. Albert A. Wray, for claimant.
BENEDICT, J. This is an action to enforce n lien upon the sharpie 'Semin()le for wages asserted to have been earned by tbe libelant, under the employment of one William Leonard, as pilot and ship-keeper from the 5th dayof July, 1889, to the 25th day,Pf January, To this JibEd theelaimant has excepted upon the ground, among others, that the claim onhe libelant is stale. Certain facts judicially known to the court seem to require a dismissal of the libel upon the ground above stated, such facts compp,lling that the libelant, by delay under the circumstances, has ",aived any lien that he may have had upon the sharpie for the services set forth in the ,Iibel. The facts referred to are as follows: The sharpie Seminole was 111 the custody of the .marshal of thisdistrict froril Jarmary 17, 1890, to March 28, 1890, in an action of pdssessioll,whefein the question arose whether one Wmiam Leonard, thislibel as owner of ,the sharpie, and employer of ope Lynch,'Yas entitled t6 the possession of the sharpie. On the. trialof the present libelant.was a witness in court, and of the controversy involved in the action, iU:id of its result, and the fact that the sharpie ":3,S in thecl,lstody of the marshal in that action. A decree was entered in the action on the 21st day of March, 1890; and on the 28th day of March, 1890, in pursuance of the decree in that action, the sharpie was delivered by the marshal to the custody of Lynch. The libelant, although now claiming to have then had a lien upon the sharpie, held his claim back until after the delivery of the sharpie to Lynch in pursuance of the decree of this court in the possessory action. But, as soon as the sharpie was so delivered, he filed this libel, and caused her to be seized again. I entertain no doubt that he should be held, by his delay under such circumstances, to lReported by Edward G. Benedict, Esq., of the New York bar.
have waived any lien agronst the sharpie that he might have had l arising out of any facts set forth in the present libel. But the case is now before the court upon exceptions, and the facts above referred to as judicially known to the court do not appear in the libel. I do not see, therefore, how, upon the exceptions alone, as they stand, the libel can be dismissed. I am, however, of the opinion that a claimant may, in an exceptive allegation attached to exceptions, bring before the court facts judicially known to the court. In this case, for instance, I think the claimant may set forth in the manner suggested the facts that the sharpie was in the custody of this court under process in the possessory actioll; that the libelant was a witness in that action, and cognizant of the proceedings; that,' in that action, Lynch was adjudged to be entitled to the possession of the sharpie; that, under such decree, possession of the sharpie was delivered to Lynch; and that this libel was not filed until after possession had been so delivered. These being facts which appear from the records of the court, and of which the court can take judicial notice without other proof than the record, I see no reason why it will not be the duty of the court, upon presentation.of these facts in such a form, to dismiss the libel without compelling the claimant to await a formal trial of the cause before presenting them to the court. I think, therefore, that the claimant may be permitted now to set forth these facts in an exceptive. allegation; and upon the filing of such an allegation the libel will be dismissed I with costs.
THE SCOTLAND. 1 OLSEN
(District Ooun" S. D. New York. May 27,1890.)
"BBJ..l(EN-LIABILI'l,'Y OF SHIP TO CARE FOR INJURED.
A sailor, in boarding his ship at Antwerp, fell and dislocated his shoulder. Although he soon afterwards informed the master of the accident, he received no attention at the time, and was not put ashore at Flushing, or at the Downs, as he requested,. at both of which places the vessel" stopped, but was taken on the voyage to New York, on going to the hospital, resection was found necessary in or· der to reduce the, dislocation, to his permanent injury. Held, that the waster had failed in the;ordinary'maritime obligation to provide for the seaman's hurts while in the service of the ship, and that the vessel was liable for the damages, which were fixed at $ 1 , 2 5 0 . ' .
In Admiralty. Action to recover damages for personal injuries. Wing, Shoudy &- Putnam and Mr. Burlingham, for libelant. Goodrir:h, Deady&- Goodrich, for claimant.
BROWN, J. The libelant l1hipped as, able seaman in January last at the port of Antwerp. While mounting the ladder to go aboard" with a
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Edward G. Benedict, Esq., 01 the New York bar.
FEDERAL" REPORTER, . vol.
dlothes' oil ;baeki,:he lost his. balance, :feU' into the water ,and, :as heclaims,dislobated, his left: shoulder:' At the muster of the men sdoh.,aft¢r l the Jlibelantdidnot a;ppear; He complained that his shoul,der was' out of joint, land that it gave h,im great ,pain, unless his arm .w&8.. held still in a.favored,posiJion.He testifies that hee:x;plained this to the captain a few hours after he got'onboard:,but was answered very roughly, and without further attehtion; that afterwards, when the .vessel.stoppedtwodays at·, Flushing,.· arid again. 8ubsequentlyat the Downs, where the vessel, was detained two weeks by bad weather, he ,requested. tocbe put ashore' for treatment, and that the captain did not tnake,any examinationGf his arm until two or three days after they had g(i)_ ,td, sea, when he declared ,that it was an old wound, and that he could ,do ,nothing for it, Some liniment :was given he was set at light: work. On arrival at New York, some two months afterwards, he went to the hospital,where experienced surgeons were unable to put the arm in place., Suhsequentlyan 'operation by resection was performed, a portion of the fibronsdeposit in the socket was removed, aboufan inch of the 'upper portion ofthe bone sawed off, and the arm thus put in place. The surgeons who pelTformedtheoperation estimated that the wound or displacement might have occurred at any time between six weeks and six :months before the An eminent surgeon. for the defense judged, from the descriptiongiv:en .by the operators, that the displacement could not be less than a year old. The defense is that there was no neglect in treatment on the part of the ship, and that the displacement was not occasioned by the fall, but was a previous injury. In the discordant testimony of the surgeons, who are perhaps equally eminent, superior weight is, I think, due to him who speaks from observation of the case itself. rather than to him who speaks from a mere description of it; particularly when, as here, the description was not made by the witnesses with a view to enable another person to judge of the age of the injury. It is scarcely credible that the libelant should have been able to palm hiIl'15elfoff as' an'able seaman, even if he had sought to do so. and to obtain a. month'l'ladvance. qf wages, if. this dislo9ation was an old injury, and his left arm was dB,ngling from the shoulder,. lnll.inly helpless or kept at his breast,and subject to pain if not held in IA precise position. His equally improbablethata person in that conto mount a ladder with a large bag on his shoul, der. Witnesses in his behalf testify, ashe does himself, that prior to this fall he was able-bodied, ·and his arm sound. The master, and the steward testify that they exaulined his shoulder a few hours after he came on board, and from the tenor of their jt is plain that the master regarded the shoulder when he examined it, whatever the date was, as dislocated. He made rio attempt, .however, to the arm himself, and he denies that the libelant asked to be put ashore. If he examined thellfm within a few hours of the fall, and believed the dislocation was old. wound, and not the result of the libelant's' fall, it is strange that .no resentment should have been expressed at the libelant's palming himself off as an able seaman; and I if not at once sent ashore, that he was
· ORISON II. THE SYRACUSE.
not at least disrn.ted in the log from the wages of an able seaman, for his palpable fraud and incapacity. In view of all the circumstances, I must sustain the libelant's version of the case, and hold that it was the duty of the master when fully notified of this injury, as he was, to afford the libelant such reasonable treatment for the resetting of the limb as circumstances afforded. There was abundant opportunity for this, both at Flushing and at the Downs. The obligation of the master in this respect was an obligation wholly independent of their relation as fellow-servants in navigating the ship. It was the ordinary maritime obligation to provide for the seaman's cure of hurts while in the service of the ship. PM Oity of Alexandria, 17 Fed. RElP. 390,395, and cases there cited; The Chand08, 4 Fed. Rep. 645; The C#y of Carlisle, 39 Fed. Rep. 807,816; Scarifv. Metcalf, 107 N. Y. 211, :216, 13 N. E. Rep. 796; The V'l.gilant, 30 Fed. Rep. 288. The neglect of this duty was negligence for which the ship is liable. In consequence of the neglect and the delay in proper treatment, the libelant has not only suffered great pain, and will be unable to do much of any work for at least six or eight months; but his arm will never recover its full strength, nor be able to be raised above a horizontal line from the shoulder. Notwithstanding the roughness of the master at first, and his great mistake in the treatment of the libelant in respect to his arm, the case affords such other evidence of the master's inherent kindness and consideration for the defendant, as respects other misfortunes of the libelant during the voyage, that no punitive damages should be given, but only such as may fairly compensate the libelant for his actual loss through the delay in proper treatment. I allow him $1,250, and costs.
(Circuit Oourt, E. D. New Yor1c. July 1,1890.)
In Admiralty. On appeal from district court. 367. Oarpenter &- Mosher,' for libelant Orison. Owen & Gray, for the Syracuse.
See 85 Fed. Rep.
BLATCHFORD, Justice. In this case let a decree be entered for the libelant for 8910.22, with interel:lt from April 10, 1889, and for his costs in this court to be taxed.