each cause. In the first case the libelant recovered, and in the other case the libel was dismissed, with costs. The clerk has taxed a bill of costs in each case as if the causes were separate actions. To this the proctor for libelant in the second case objects, and insists that there is but a single action, that the libel in the second case is a cross-libel filed' under the 53d rule, and that there was but one cause; consequently that notices of trial could be served only in one cause, depositions taken only in one cause, and other services rendered in one cause only. My opinion is that the practice in this case has prevented these libelants from taking the ground that there was but a single cause. The second cause has been conducted as a separate cause from beginning to end, and the legal fees for services which have been rendered in each case must be taxed in each case. If a cross-libel in I'em can in any case be filed under rule 53, (see case of The Bmtol, 4 Ben. 55,) this libel was not filed as a cross-libel. The two causes have been conducted as separate causes from the outset. The second libel was filed us an original libel, and a bill of costs may be taxed in each case. As the causes were heard together, but one proctor's docket fee should be allowed.
THE TAMMERJ,ANE. LAMBOS '/;. THE TAMMERJ,ANE.
(DIstrict Court, N. D. California. October 5, 1811L)
SHIPPING-PERSONAL INJURIES TO SEAMEN-DANGEROUS PRFJMISB8.
A seaman who was ordered to go into the hold, instead of waiting for a ladder, as he was told to do, and notwithstanding there were cleats upon a stanchion extending from the main deck to the between-deck, which afforded him a safe and easy descent, swung himself through the main hatch, and stepped upon the cover of the of the between-deck, which, having been left resting against the stanchion, and not being fastened, as it usually was, turned, and caught him. It was not shown how the cover happened to be left in suoh a position. Held, that DO negligence was shown for the ship was liable.
B.une-MEDICAL EXPENSES-END OF VOYAGE.
The. seaman, having been well cared for and treated during the voyage, could Dot recover expenses incurred in consequence of such injuries after its termination and his return to the port of discharge.
In Admiralty. Libel in rem to recover damages fOf personal injuries caused by the alleged negligence of the master. Wm. Hoff Oook, for libelant.' Androa Prank, for claimant. Ross, J. This is a libel in rem against the bark Tammerlane, her tackle, apparel, and furniture, to recover compensation for an injury BustainEld by the libelant on board the bark while in the dischargeof bis duties as seaman, and for alleged neglect and maltreatment of thill Qfficers thereafter and for medical expenses incurred by him after the
termination of the voyage. At the argument of the cause it was conceded that the allegations in respect to the neglect and maltreatment of libelant subsequent to the accident were not sustained by the evidence. The claim for damages against the vessel growing out of that cause is therefore eliminated from the case, and there remain for consideration bilt two questions: First, whether the negligence by which the accident . happened entitles the libelant, by any recognized principles of maritime law, to compensation from the ship or her owners for the injury; and, secondly, whether the obligation of the ship to CUTe the libelant of the injury extends beyond the termination of his contract of service and his return to the port of discharge. The first of these questions was carefully considered by Judge BROWN in theaase of The City of Alexandria, reported in 17 Fed. Rep. 390, and the conclusion there reached, after a review of the authorities, that, by the nlaritime law, ancient and ·modern; a seaman, in case of an accident received in the service of the ship, is entitled to medical care, nursing, and attendance, and to cure, so far as cure- is possible,at the expense of the ship, and to wages· to the end of the voyage, andlio more; that this right of the seaman is without reference to any question of ordinary negligence of himself or his associates, and is neither increased nor dimiilished by the one or the other,-the only qualification ·arising from the willfl1l and gross misconduct of himself or associate, in which case the expense may be charged against the wages of the wrong-doer. Accordingly, in that case, where the cook, who was the libelant, went dowldhe fore-hatch in the morning before light, by the direction of the steward, and was hot sufficiently notified of the half-open hatch below, and, in consequence, fellthl'Qugh, and was injured, and was subsequently treated and cared for at the ship'sE'xpense, and received bis wages to the end 'of the voyage, and thereafter' filed a lib.el to recover for permanent Injuries,' the libel was dismissed. The case for the libelant there was much 'stronger than here; for in the present case the accident to the libelant was caused hr large part, if not entirely , by his oWhcarelessness. It oecuned on a whaUng voyage, and, being orone Wilbur, to go from the main deck into dered by the the hold for some purpose, the libelant, in doing so, swung hituself down through the main hatch into the between-decks, and stepped upon the edge of the forward half cover of the hatch of the between-decks, which thereupon turned, and caught him, inflicting the injury of which he complains. The cover was raised at the time, and rested against the stanchions extending from the main deck to the between-decks; .but it was not fastened, as it usually was. How it happened to be left unfastened on this occasion does not appear. There were cleats upon the stanchion, to be used in going from the main deck to the between-decks, mid a ladder was also:sometimes used for the same purpose. The case further shows, however, that the men in going below not infrequently adopted the means used by the libelant in the'presentinstance, which was doubtless more expeditious, but not so sa-fe. The cleats upon the stanchion were for the very purpose, and afforded a safe and easy way,
of going down. ,Moreover, in this particular instance, it appears that Wilbur instructed the libelant to wait until he got a ladder for him, and, as Wilbur turned around to get the ladder, libelant swung himself down, placing his feet upon the upturned hatch, with the result already stated. That in doing so libelant was guilty of negligence does not admit of doubt. No negligence is shown OIl the part of the ship or its owners, unless they are to be held responsible for the fact that the cover was not fastened; for good and safe means for going below were provided, at least by the cleats upon the Rtanchion. As has been said, it does not appear how the cover happened to be left unfastened. If it be assumed that it was by reason of the neglect of some of the ship's company other than the libelant, still such assumed fact would not entitle the libelant to recover against the ship or its owners. "By the maritime law," said Judge 'BROWN in the case already cited, "the mere ordinary negligence of the seaman, though that be the sole CaUse of the accident, makes no difference in his right to be cured at the ship's expense, and to his wages to the end of the voyage. And, as his own negligence does not debar him from these rights by the maritime law, so, conversely, these rights are in no way extended, though his hurts have arisen by the negligent acts of others of the ship's company. In effect, the maritime law makes no account of mere ordinary negligence in such casE's. More or less negligence is, in fact, to be expected; and the rules, long established, as regards the relief to be nfforded, are irrespective of such negligence, whether by the seamen or others. When the owners perform all that can be reasonably done on their part, by the proper equipment of the , vessel for the voyage, and the selection of competent officers and a sufficient crew, no reason exists in natural justice for holding them or their vessel answerable for the accidents to soomen which happen during the voyage, beyond the limits which the maritime law has established." Another case in point is that of Lloyd v. The Theresina, 31 Fed. Rep. 90, where the libelant, who was, a stevedore, stepped on the cover of a scuttle in the deck of the ship, when the cover tilted, precipitating libelant through the scuttle into the hold, causing an injury, for which suit was brought. The evidence indicated that the scuttle was a proper one, vf a kind in common use, and that the accident was probably due to a temporary misplacement of the cover, the canse of which did not appear. The court held that no negligence on the part of the ship-owner WflS proved, and dismissed the libel. In the present case I think the libelant is not entitled to recover compensation for the injury snstained by him. It is insisted, however, that he is entitled to recover $25 for medir,al expenses incurred by him after the termination of the voyage, and his return to the port of discharge. The service for which this charge is made' was an operation upon one of the libelant's kidneys, rendered necessary, as is claimed, by the injury he received. The proof to sustain this claim is by no means satisfactory; but, assuming that the diRease of the kidney was occasioned by the injury he received on board the bark, it does not follow that the medical services rendered him are
a proper charge against the vessel. The rule seems to be that the obligation of a vessel to support and cure seamen taken sick or receiving injuries in the service of the ship does not extend beyond the termination of the seaman's contract and his return to the port of discharge. Neritt v. Clarke, Olcott, 316; The Atlantic, Abb. Adm. 451,476; The Oity of Alexandria, su!)raj The J. P. Card, 43 Fed. Rep. 92. That the.libelant was well cared for and treated during the voyage is shown by the evidence, and was conceded at the argument. The libel is dismissed, at libelant's costs.
et al. v.
(District Court, N. D. California.
October 5, 1891.)
SEAMEN-WAGES-BREACH OF CONTRACT BY MASTER-ExCESSIVE LOADING-DESERTING VESSEL IN FOREIGN PORT.
The English merchant shipping act, 1876. in section25, requires British ships, with certain exceptions, to be conspicuously marked with longitudinal lines, showing the position of each deck above the water line. Section 26, Bubd. 3, requires the owner entering his ship outward from any port of the united kingdom to insert in the form of entry delivered to the collector the distance in feet and inches of each of these lines from the plimsol mark; and subdivision 4 authorizes the collector to refuse to enter the ship outwards unless this regulation is complied with. By subdivisions 5 and 6 the same statement must be inserted in the shipping articles before they are signed by any member of the crew, and also in the official log-book. Subdivision 7 provides that a ship thns marked shall be kept so marked until her next return to a port of discharge in the united kingdom. Held, that the seamen of such a vessel are directly interested in maintaining the load-line as indicated by the plimsol mark, and that to load her a foot and a half deeper, against their protest, constitutes such a breach of their agreement as will justify them in leaving the ship in a foreign port. Where seamen, upon the advice of the British consul, thus left a vessel in the port of San Francisco, and it appeared that she was loaded with a cargo for Chili, which was then in a state of insurrection, that her movements were uncertain, and her probable return to England remote, and that she was under bottomry, and liable to be sold, the United States district court will take jurisdiction of a libel for wages, especially when so requested by the British consul, notwithstanding that the wages were payable only in England, and that the English merchant shipping act, 1854, § 190, provides that no seaman engaged for a voyage which is to terminate in the united kingdom shall be entitled to sue for wages in any foreign court, unless discharged with the sanctions therein prescribed, and with the master's written consent, or proves such ill usage as to warrant a reasonable apprehension of danger to his life if he remain on board. ance will be made for their passage home, but they will be awarded wages to the time they left the vessel, with $10 each as general damages for breach of the contract.
It appearing that all the seamen found employment on other vessels, no allow,
SAME-LIBEL FOR W AGES-JURISDICTIOl< OF FOUEIGl< COURT.
In Admiralty. Libel for seamen's wages and their transportation home. Andros & Frank, for libelants. E. W. 1VlcGmw, for claimant.