95 FEDERAL REPORTER.
If .this position be conceded, it would operate to deprive the invent· of all benefit from his patent. Hartz could neither use the inven· fOr .himself nor realize themeageJ,' benefits to be derived from nsiilg;it tor the bene:fit of the block company. We think they elect· ed t01'epudiate any right they may have had to become the assignee of thiliinvention, and that they so understood it when they stood by and saw Hartz involving himself in great expense, after themselves refusing to furnish the means to prosecnte its manufacture. DefendaIlt's plea is not snpported: The decree must be reversed for such further proceedings as may be consistent with this opinion.
THE MARION CHILCOTT et aL
(DIstrict Court, D. Washington, N. D. July 24, 1899.)'
SBAMEN-DAMAGES FOR PERSONAL INJURy-LIABILITY OF VESSIl:L.
'While the sixteenth admiralty rule protects a. ship from liability for damages tor assaults committed by her officers, she is liable for injuries inflicted on a seaman by reason of the neglect of the master to protect him from continued abusive treatment by a subordinate officer. The rule that a ship Is not liable to. a seaman In damages for Injuries resulting from negligence of the officers is not applicable when such negligence amounts to a breach of duty; as where the master falls to protect the seaman from continued violence and brutal treatment at the hands of a subordinate officer.
In Admiralty. Libel in rem by Franz Schwam, seaman, against the ship Marion Chilcott, to recover damages for personal injuries. M. M. Madigan, for libelant. E. O. Hughes, for claimant.
HANFORD, District Judge. The libelant claims damages to the amount of $25,000 for abuse and personal ill treatment alleged to have been suffered by him while serving as a seaman on the ship Marion Chilcott on a voyage from Baltiniore to Seattle. After careful cOJlsideration of the pleadings, evidence, and arguments, I am con· vinced that the libelant sUffered corporal chastisement at the hands of the illate very frequently during the voyage, which was, except on the :firSt' occasion, unnecessary, arid unjustifiable. When discharged, after the' termination of the voyage, the libelant ,was in such poor health that he was taken to the marine hospital with a permit issued to him by the captain,and he was certainly iil a nervous and weak· ened condition, in consequence of his sufferings during the voyage. There is, however, no evidence upon which to base a finding that his injuries are perIilanent. He has shown himself to be an untruthful witnel;!s, and I am convinced that hebas grossly both as to the ill treatment and its effects. There is a decided preponderance I)f the evidence against the libelant in regard to a number of important facts, and convincing proof that the greater ,part of bis suffering was caused otherwise than by ill treatment at the hands of the officers of the ship ; and for the pain and distress now referred to,
THE MARION CHILCOTT.
the ship, her owners and officers, are not in any degree responsible. .\n exorbitant demand increases the expense and burden of litiga· and a party responsible for it should share the consequence!! by having his recovery pared down. Having this principle in mind, I shall award only a comparatively small amount of damages in this ease. The sixteenth admiralty rule is a bar to a suit in rem by a seaman to recover damages for assaults committed by officers of a ship, but I hold that the vessel is liable in this case for the comsequence of con· tinued abusive treatment on the part of the first mate, which should have been prevented by the captain. It was the duty of the captain to maintain proper discipline on the ship, and to protect members of the crew from abuse at the hands of his subordinate officers: and neglect to perform his duty in that regard renders the ship liable for ehe effect of such abuse. In the case of The A. Heaton, 43 Fed. G92, Mr. Justice Gray lays down the law on this subject as follows:
"In this country It has been established by a series of jUdgments of the supreme court of the United States that a libel in admiralty may be maintained against the ship for any personal Injury for which the owners are liable under the general law, and Independently of any local statute. Accordingly passen· have often maintained libels, as well against the ship carrying them as against other ships, for personal Injuries caused by negligence for which the owners of the ship libeled were responsible. The New World, 16 How. 469; The Washington, 9 Wall. 513; The Juniata, 93 U. S. 337; The City of Panama, 101 U. S. 453, 463. The sixteenth rule in admiralty, which directs that 'in alI suits for an assault or beating upon the high seas, or elsewhere within the lLdmiralty and maritime jurisdiction, the suit shalI be in personam only,' does not affect libels for negligence. * * * No reason can be assigned the owners of a vessel should be held less liable to a seaman for the negligence of the master in a court of admiralty than in a court of common law. Courts of admiralty have always considered seamen as peculiarly entitled to their protection. * * * A seaman taken sick or injured or disabled in the servire of the ship has the right to recover his wages to the end of the voyage, and to be cured at the ship's expense. That right, indeed, grounded solely upon the benefit which the ship derives from his service, and having no reo gard to the question whether his injury has been caused by the fault of others or by mere accident, does not extend to compensation or allowance for the effects of the injury; but it is in the nature of an additional privilege, and not of a substitute for, or a restriction of, other rights and remedies. Harden v. Gordon. 2 Mason, 541, Fed. Cas. 1\0. 6,047; The George, 1 Sumn. 151, Fed. Cas. N!>. 5,329; Reed v. Canfield, 1 Sumn. 195, 199, 201, Fed. Cas. No. 11,641. it does not, therefore, displace or affect the right of seamen to recover against the master or owner for injuries by their unlawful or negligent acts."
I am not prepared to depart from the rule of limiteCl liability for injuries caused. by accidents laid down in the decision of this court in the case of The Governor Ames, 55 Fed. 327. But that rule is not applicable in a case where the negligence complained of amounts to a breach of duty on the part of the owner or master of a ship which such owner or master is obligated to perform personally,-as, for instance, the duty to see that the ship is seaworthy at the time of leaving port, and that her equipments, appliances, and apparatus which must be handled and used by the crew in her navigation are sound and fit for use, and not, by reason of decay or wear, calculated to expose members of the crew to unnecessary danger; or the duty of the master while at sea to protect the crew from violence and
95 FEDERAL REPORTER. -
brutal violation of the implied contract that such protection will ,be afforded. It is my opinion that the ship is liable in this ca&, lindl aWlwdto the libelant as his damages the sum of $100 and costs. .
STRAITS OF DOVER S. S. CO., Limited, v. MUNSON. (District Court, S. D. New York.
SHIPP,NG-TJME CHARTEl't-RETURN CARGO.
June 22, 1899.)
A charter of a stearneI' for a term of three months at a monthly hire based onhet tonnage, which gave the charterer the right to send her to any ports in certain named countries, from which it was customary for vessels to bring return cargoes, must be construed in the light of such usage, and as authorizing the charterer to make at least one complete voyage with return cargo, and he would not be compelled to return her unladen for the purpose of making delivery of her by' the expiration of the term. where she was not delayed through his fault or negligenee.
SAME-EXTRA' HIRE--RISKS OF DEI.AY.
.A charter of a vessel for a term of three months to be sent to any ports, in designated countries at the option of the charterer provided for the payment of monthly hire based on her tonnage, payable in advance, and for the same rate for any part of ll- nionth, "hire to continue until her delivery," and that, should the steamer be on her return voyage towards the port of return delivery at the time, 11-, payment of hire due,such payment should be made for the estimated time before delivery and afterwards a,Wusted. Held., that such provisions contemplated the use of the vessel by the charterer for at least one complete voyage, taking any customary return, cargo from the customary ports at the charter rate of hire, where a prolongation, of such voyage beyond the charter time was not due to any negligence. on the part \If the charterer; each party taking th,e r:isks of delay ir-om causes beyond the control of either.
In Admiralty. Libel to' compensation for the use of a vessel'after the expiration of the charter period. Convers&, ;K:rrlin; for libelant., ' '''heeler & Cortis, for respondent. ' BROWN, District Judge. The above libel was filed recover $5,362.72 clajll1eQ.,to be OWing as for the use of the stealAshfp Straits of Dover for a period of 2 nionth$ 23 days and 8 hours af,ter the expiration of the charter period. The charter.was dated July 28, 1898, and let the steamer to the respondent for the period of "three calendar months:fi'Orri Aligust 1, 1898, to delivered at Philadelphia, and to be employed in carrying lawful merchandise, etc., between any safe ports in the United States, West Indies; Mexico, CapeVel'des': Azores, and fOr north coast South America,e:tc1uding Brazil, as the charterers shalf direct." The steamer was delivered in accordance with the charier at Philadelphia:, on August 1St, was loaded with a cargo of coal for Tampico, Mexico,' sailed on Augnst5th, and arrived at Tampico on August 16th. Owing to 'extraordinary washouts on the railroad for which the coal was designed, no berth could be obtained at Tampico until October 5th. Her cargo was discharged on Odober 18th, and on that day she left Tampico 'for the port of Tuxban, where she arrived on October