:390
.
{
';raE CITY OF ALEUNDRIA. '
(District Co'v:rt, S.D.. New York. "1.
July 3,1883.)
ADMIRALTY"':"'SEAMEN-PERSONAL INJURJES-1\IARITrME LAW.
The naVigation of a ship constitutes one common employment, for which all the ship's company are employed. Neither the vessel nor her owners, therefore, would be liable, according to the principles of the municipal law, for injuries happening to a seaman through the negligence of any of his associates . in the performance of their ordinary duties. SAME-SnIP LIABLE FOR EXPENSE OF NURSING AND l'tiEDICALATTENDANCE.
8.
By the maritime law, ancient and modern, a seaman, in case of any 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, and no more. This right of the seaman is without reference to any question of ordinary negligence of himself or his associates, and is neither incrcased nor diminished by the one or the other; .
t
SAllE-EFFECT OF NEGLIGENCE.
6.
SAME-GROSS i\IISCONDUCT.
The only qualification arises from the willful and gross misconduct of himself or associates, in which case the expense may be charged against the wages of the wrong-doer. . SAME-CONSEQUENTIAL INJURIES ·
7.
.If after ,the seaman is wounded the officers of the vessel neglect to furnish pr'Jpertreatment, semble, the vessel may be held for consequential injuries. OF EXCESSIVE DAMAGES-LIBEL DISMISSED.
'Where the libelant, the cook, went down the fore hatch 'in the morning before light, by the direction 'of the steward, and was not sufficiently notified of the half-open hatch below, and inconsequence fell through and was injured, and was subsequently treated and cared for at the ship's expense, and received his wages to the epd of the voyage, and thereafter filed, this libel to recover $10,0:)0 for permanent injuries, held, that the libel'should be dismissed.
In Admiralty. James Flynn, for libelant. A. O. Salter and R. D. Benedict, for claimants. BROWN, J. The libel in this case was filed to recover $10,000 damages for personal injuries received on board the steam-ship City of Alexandria in falling through the fore hatch between-decks into the hold, on the twenty-fourth of November, 1879. The libelant was the chief cook on the steamer, on a voyage .from New York to Vera byway of Havana. One of the persons on board having died, the cqok was told, on the evening of November 23d, to go to the ice on the following morning- and superintend the packing of the ·On the 24th he was called, a little after 4 A. M.,by th"e and told that the men were waiting for him below. He .· ,by :We to go down. by., way of the fore. hatch, WhlCli was open. A permanent perpendicular ladder ran. from the
THE CITY: · " · '" . '. ',' 1.. · .'
OF :ALEiANDRIA· _. _.' · ',. _. . .· -
'391 rl
forepart of the hatch to' the forepart c! the hatch ately u6low it. As the libelantwent down this ladder,as'directed, the steward testifies that he told him "to lookout," or "to look out for the hatch;" he is 110t quite certain which. Two men had previ. ously gone down in the same way, and had a light between-decks; but the light, at the time the libelant went down the ladder; had been placed behind a skid 'having a solid bottom, so that the hatch was in the shadow. The libelant testified that it was dark, and that he could not see as he wellt down. After reaching the foot of thti ladder he carefully felt at the bottom with his feet, and finding good footing started to go towards the starboard side of the ship, and mediately fell through the hatch into the hold below, and received considerable personal injury. He was cared for at the expense of the ship, and his wages paid to the end of the voyage. He now sues for additional compensation for his permanent injuries and consequential damages, on the ground of the negligence of the officers of the ship in leaving the hatch open through which he fell, as well as for negligence in sending him below in the darkness without proper notice of the open hatch beneath. The claimants contend-Pirs't, that there was no negligence on the p9.rt of the officers or the steward of the ship; and, second, that if there was, neither the ship nor her owners are responsible for consequential damages, either by the maritime law.or by the common law, as thenegJigtnce, if any, arose from the acts of co-employes in the same employment or lllldertal:ing. 1. The evidence in' regard to the notice or caution given to the libelant as he went down the ladder is conflicting. The libelant denies that any caution whatever was given to him, or any light offered. As chief cook he had charge of the ice-house, and was the proper person to superintend the packing of the body in ice. He was customed to go to the ice-house throngh the forecastle, and not through the fore hatch, which, at sea, was usually closed. On the day previous the steamer had touched at an intermediate port, and landed some cargo through the hatches; and on the day following she was expected to arrive at her port of discharge. In the fore hatch be" tween-decks a piece of machinery was left sticking up, and the cover of the hatch, it appears, waaplaced over the port side of the hatch up to the projecting piece of machinery, and covered the part of the hatch at the foot of the ladder, but left an op6n space on the starboard side, through which the libelant fell. The cook had ordinarily nothing to d:l with the hatches, and was not aware tbat the hatch below was partly uncoya:·ed. TIle men who had descended before were cautioned, and also had a light with them,as above stated. Considering the emphatic testimony cif the libelant, that he l'eceived no notice whateYer, in connection with his fall, I think it probable that the steward is mistaken as .respects his caution .to canfoundingit,perha:ps',witlrthe' notice pre;viciusly gi,ien to the other
392
FEDERAL REPORTER.
men, or at least that his caution to the libelaut. was not sufficiently explicit to apprise him of the danger from the half-open hatch below; such as' ought to have been given to one who was not accustomed to go down to the ice-closets in that manner. 2. Assuming, therefore, that there was negligence in the steward in ordering the libelant to go through the hatch without suitable notice of the danger below, the negligence was, nevertheless, that of an employe 01' feHow-workman in the same general undertaking or employment, for which, upon the well-settled principles of the municipal law, neither the vessel nor her owners would be liable. Whatever negligence there was,--whether in leaving the hate lies uncovered, or in not notifying the libelant as he went down,-was negligence on the part of those on board the ship, and in no way traceable to the owners themselves. It was neglect of the officers or men aboard in the performance of their ordinary duties; a neglect against which the owners could not possibly guard. Those who engage in a common employment take upon themselves all the natural ancI risks and perils incident to the performance of their duties. Among these are the perils arising from the carelessness or negligence of others who are engaged in the same employment; and it constitutes no exception to the rule that the several persons employed are not in equal station or authority, or that one servant is injured through the negligence of another, who is his superior in station, to whom he owes obedience. Hough v. Ry. Co. 100 U. S. 213; Wilson v. Merry, L. R. 1 Sc. & Div. App. 326; Allen v. New Gas Co. 1 Exch. Div. 251; Malone v. HathawrlY, 64 N. Y. 5, 9; Fuller v. Jewett, 80 N. Y. 46. The navigation of a ship from one port to another constitutes one common undertaking or employment, for which all the ship's company in their several stations are alike employed. Each is in some way essential to the other, in furtherance of the common object, viz., the proRecution of the voyage. Each one, therefore, upon the principles laid down in the common-law courts, takes the risk of any negligence in the performance of his duties by any of his associates in the common employment; and on common-law principles, therefore, the libelant's claim could not be sustained. 3. This claim, however, is brought in a court of admiralty by a libel in rem against the vessel; and in such a case the ql1estion is not properly whether the analogies of the municipal law would or would not sustain such an action, but whether by the maritime law a lien exists upon the vessel for such a claim. The libelant's employment was a maritime contract; the injury for which compensation is claimed arose upon the high seas. The true question, therefore, is, whether the negligence through which the accident happened entitles tile libelant, by any recognized principles of maritime law, to compensation from the ship or her owners beyond that which he has already received. The facts do not present the question, to what extent the owners might be liable in damages for any actual negligence of their
THE CITY OF ALEXANDRIA.
893
own, or of others in their employ, in the proper outfit or equipment of the vessel, or for her unseaworthy condition when sent out of port; for no negligence or insufficiency in these respects appears. The question here relates exclusively to their responsibility for injuries through the alleged remissness of some of the ship's company in the perform..nee of their respective duties on board, and in the course of their or"· dinary employment. The liability of seamen to injuries of this kind is as old as navigation, and multitudes of essentially similar cases must have occurred almost every year from time immemorial. It would seem to be incredible, therefore, that the sea-laws, ancient and modern, should not have indicated tl18 extent of the liability of the vessel or her owners for such injuries·. The obligations of the vessel and her owners have, in fact, been define 1 in nearly the same language in both the ancient and modern authorities. By article 6 of the Laws of Oleron it is provided: "If by the master's orders and commands any of the ship's company be in the service of the ship, and thereby happen to· be' wounded or otherwise hurt, in that case they shall be cured and provided for at the costs and charges of the said ship." Similar is section 18 of the Laws of Wisbuy; and by article 39 of the Laws of the Hanse rrowns it is provided: "If any seaman is wounded in the ship's service, he shall be cured at the charge of the ship; but not if he is wounded otherwise." In Curt. Rights & Duties of Seamen, 109, 110, it is said: "The seaman is entitleLi to he cured of all sickness or injuries orenning while in the ship's servke." "All that the rule requires is that the sickness or injury should not he occasioned by his own fault." "The rule is lImited to the cure of the or injuries. and does not include any compensation or allowance for the elfccts of tile injury."
1n none of the laws, or in the recognized authorities en mario time law, is there allY indication of liability of the £hip or her owners for such hurts or iaj uries beyond the expenses of the care, attendance, and cure of tbe seaman. In Ileed v. Cantie[rl, 1 Sumn. 195, 202, the limit of the ship's liawas considered by STORY, J., in which he says: bility in such "The law embo,lip'I n its very formUlary the limits of the liability. The seaman is to be cured. at the expense of the ship, of the sickness or injury Sustaineu ill the ship's It mllst be sustained by the party while in the ship's service, an,l he is not to receive any compensation or allowance for the effects of the injlll".v. But so far, and so far only, as expenses are in-" curred in the cure, \\"h" her they are of a meuical or other nature, for diet," lodging, nursing, or oll,pr a'lsistance, they are a charge on, amI to he horne hy, the ship. The or other injury may occasion a temporary or permanent di'lahility; hnt that is not a gronnd fur indenYlity froll1 the owners. They are liable only for expenses necessarily incurred for the cure, and when the cnre i3 l'ornplptp'l-at It'ast, so far as the ordinary meuical means exowners are freed frull all further liability:' .
391:
, In the .case or· The. Atlantic, Abb. Adm. 451, where a sailor had been hurt by a fall from the main topsail yard, the limit of the ship's liability again came under the careful consideration of BETTS, J. The general rule is there stated by him that the mariner is entitled to be cured of sickness and wounds received in the service of the fihip. The word "cured," he says, is not to be taken in an absolute sense: "That would involve impossibilities. Diseases and injuries so incurred are frequently in their nature, and in their di"ect consequences, incurable. An exposure to unusual labor or privations on the voyage may induce maladies permanent or irremediable in their character. Thus broken limbs or bodily debility, resulting from services in the ship, are very often the sailor's heritr age for the residue of his life."
He refers to the discussion of the subject by STORY, J., in the case of Reed v. Canfield, Sllpra, and concurs therewith so far as it goes, adding that the case did not determine whether the cure required during the voyage is to be continued after its termination. After referring to the provisions of various codes, he says: .·, 'fhe term' cure' was probably employed originally in the sense of taking
cha1'ge or care of the disabled seamen, and not in that of positive healing, The obligation of the ship to the mariner would then be co-extensive in duration with that of the mariner to the ship. Natural reason would seem to point to that limitation, it being the one consonant to the relation in which the law places the parties to each other, and by which it measures their pIivileges 'and liabilities under a shipping contract.. "This rule may undoubtedly be subject to variations. 'Vhen a course of medical treatment, necessary and appropriate to the cure of the seaman, has been commenceu, and is in a course of favorable termination, there would be an impressive propi"iety in holding the ship chargeable with its completion; at least, for a reasonable time after the voyage is ended or the mariner is at home. So, also, in case due attention to his necessities has been unjustly omitted by the ship abroad, or his case has been improperly treated, the courts may properly enforce against the ship this great duty towards disabled mariners, even after her contracts are terminated, upon the ground of a failure to perform towards them the obligation in the shipping contract. See Brown v. Oc:erton, 1 Spr.462. These particulars, however, are not stated as ingredients in the present case, but are referred to in illustration of the doctrine involved in'some of the authorities, and to show they are not inconsistr ent with the general principle thataseaman has no claim upon the ship or her owner for the cure of his sickness or disabilities after his contract has terminated, and he is returned to his port of shipment or discharge, or has been furnished with means to do so." .
Two years pre;,iously the same general subject had come before Judge BETTS iIi the case of Nevitt v.'Clarke,Olc. 316, where he examined, with his accustomed learning, the question of the, continuance of the liability of the shi{T in case the injured seaman's cure was illcompleteat the end of the,voyage, and held that the ship's responsibility ended with. rt16 voyage;, _. , theease. of The Ben .Flint, 1. Abb: (U,S.) 126, the subject is reviewed by illr: Jus.tie.e. Mlf..LER, and the conclusion arri:ved
THE 'CITY OFALE"XAN'DllIA.
395 i
at that; 'in the absence of misconduCt or neglect on the part of tho, officers, the obligation of the vessel ends with the voyage. ':,,' .:' In the cases above cited, it is true, the claim wa:s only' rorex· penses of sickness or cure, or claims for wages during the period of illness, and not directly a claim for compensation for injuries result-' ing from the negligence of others on board the ship; ·but thE} pro-' visions of the various codes, ancient and modern,and the decisions in the reported cases, obviously proceed without reference to question whether the hurts received by the seamen were received· by what might be called mere acoident, or tlll'ough any remissness or ordinary negligence, either of himself or of any others of the ship'!> company, in the performance of their accustomed duties. The only' seamen's right of recovery is where recognized qualilication of the injuries have arisen from his own gross !lnd willful misconduct, (Thc Neptnne, 1 Pet. Adm. 142; The Ben Flint, supra,) in which case, and also if the injury arose from the willful wrong of another, the expenses to which the ship is put may be deducted from the wrong-doer. Laws of O1eron, § 6; \Vishuy, § 18; 1 Malloy, 35L Misconduct or neglec-t by the officers in the treatment of' the sea· man, after he has been wounded in the service of the ship, becomes ri. different and additional cause of action against the ship, because a legal obligation to him then arises to afford suitable care and nursing; and if this be neglected the ship may be held to consequential damages. Brown v. Ot'erton, 1 Spr. 462; CrOltCllCr v. Oakman, 3Allen, 185; M06Cly v. Scott, 14 Amer. Law Reg. 599. Beyond this I finel no authority in the ancient or modern codes, in the recognized text. books, or the decisions on maritime law, for the allowance of consequential damages resulting from wounds or hurts received on board ship, whether arising from ordinary negligence of the seaman himself, or of others of the ship's company. Considering the frequency of such accidents, and the lasting injuries arising from them in so many cases, the absence of any authority holding the vessel liable, beyond what bas been stated, is evidence of the strongest character that no further liA.bility nnder the maritime law exists. , The law pel-taining to seamen is, in many respects, essentially ferent from that relating to employment on land. This bas arisen necessarily from the peculiar circumstances of service at sea, and rests partly upon the ancient customary law, and partly upon numerouS statutory provisions. Together they constitute a body of· maritime law, according to the recognized authority of which the liability of ship-owners must be judged. On this subject, in the'case of Reed Canfield, supra, Judge STORY remarks: d
"It has been suggested that a seaman at home cannot be entitled to any claim against the owners of the ship for injUries received in the ship's service, any more tlum a ffillChflnic or manufacturer at home.. for like injuries iii the service of his employer. If the maritime law ,were tlie same in alt respects with the common law; and if the rights aI1l1 duties-ofcseamen"w('l'(,
806
REPORTE&
measnred in the same manner as those of mecl1an'cs and manufacturers at home, doubtless the cases would furnish a strong auaJugy. Rut the truth is that the maritime law furnishes entirely different doctrines upon this, as well as many other subjects, from the common law. SeallIen are in some sort coadventurers upon the voyage, and lose their waj:{es upon casualties which do not atrect artisans at home. They share the fate of the ship in cases of shipwreck and capture. Tiley are liable to dilferent of discipline and sufferings from landsmen. The policy of the maritiule law, for great and wiSE> and lJenevolent purposes, has lJuilt up peculiar righl:->. !.rivileges, duties, and liahiiities in the sea service which tlo not belo:lg to hO.lIe pursuits. 'fhe law of the ocean may be said in some sort to be a universal law, gathering up and binding together what is deemed most useful for tile general intercourse anll navigation and trade of all nations. 'VllOever IIl,ard of salvage being allowell for property on land? 'Whoever hearll of any civilized nation which denied it for salvage services at sea, or on till' sl'a-l'oast.? It is impossihle, therefore, with any degree of security to reason from the doctrines of the luere municipal Calle in relation to purely !l01Up JI "'snits, to those more enlarged principles which guide and cOlltrol the of the maritilll e la w."
In cases of accidents like the present, the l1l'0visions of the maritime law applicable to the rights of the parties. are altogether different from those of the municipal law in regard to similar accidents on land. By the latter, the person injured, if chargeable with contriuutory negligence, wonld recover nothing; he would not be entitled to wages while disabled, nor to be nursed anll tended at his employer's charge. By the maritime law, the mere ord;nary negligence of the seaman, though that be the sole cause 01 the accident, makes no difference in his right to be cured at the shi /s expense, and to his wages to the end of the voyage. And as his OWIl npgligence 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 acconnt of mere ordinary negligence in such cases. More or less negligence is in fact to Le expected, and the rules long established, as regards the relief to Le afforded, are irrespective of such negligence, whether by the sral1l:ln or others. When the owners perform all that can be reasonably \.(llle on their part by the proper equipment of the vessel for the voyage, and the selection of competent officers and a sufficient crew, no Trason exists in natural justice for holding them or their vessel tln,,\'erable fur the accidents to seamen which happen during the VI',\"' .e, beyond the limits which the maritime law has established. III t Ids case there is no charge of any remissness on the part of the O\\lIers, and the injury arose from causes in no way undertheir control. There is no ground ill reason, therefore, for holding them or the \"es-el liable; and tho maritime law affords no sanction for any claim to compensation beyond that already received by the libelant, in dlle medical care and treatment, and wages to the end of the voyage. Tile cases of '1'/·.: Clzaudos, 4: FED. REP. 'G-l5, t;;) 1; The 1\Iarcella, 1
· THE BERMUDA.
897
Woods, 302; The D. S. Cage, Id. 401; Thompson v. Hermann, 47 Wis. 602, [So C. 3 N. W. Rep. 579,] cited by the libelant's counsel, though containing some expressions based upon the municipal law apparelltly favorable to the libelant's claim, are in no way in conflict with the conclusion to which I have arrived upon the facts in the present case. The libel is dismissed, with costs.
TilE BERMUDA.
(Disfrt(J1 Court,8. D. New York.
June 9,1883.)
1.
4233-RULES 19,22,23. Where the steam-tug E. B.; having two large ballast logs in tow, In_hell to her side, was proceeding from Jersey City to Brooklyn, and the steamer il. was following her astern ,md somewhat to the eastward, and their courses converged by an angle of about two points, the steam-tug being on the starhoard bow of the B., and the latter ran over and sank the tug, the tug- having kept her course, ',eld, that the situation was either that of an overtaking vess:'l, or the fifth situation in the Inspector's Hules, and in either view hy rules 19 and 22 of section 4233 of the Hevised Statutes the steamer was hound to keep out of the way, and that the collision was Wholly the fault of the latter. 2. l:)AME-WANT OF LOOKOUT-FAULT. Though the tug had no proper lookout, held, on the facts, that this fanlt in no way contrihnlerl to the collision, and therefore was illsuillcient to charge the tug with half the loss. COLT.Tl'lTON-FIFTH SITUATION-SECTION
In Admiralty. TV. R. Beebe and TV. W. Goodrich, for libelants. Butler, Stillman d; IIubbard, for claimants. BROWN, J. This action was brought to recover to the steam-tug Edith Beard, which was sunk through a collIsion with the Bermuda, on the tenth of September, 1880, at a point between Ellis island and Castle William. The tug had left the Pavonia ferry with two large ballast logs in tow, lashed upon her port side, and described as 80-ton logs, bound for Merchants' Stores, Brooklyn. The Bermuda is a large steam-ship, which had left her wharf at 4 P. M., and was proceeding down the middle of the Hudson river out to sea, and was Bomewhat to the eastward and astern of the tug. The COHrl;e of the tug was about two points further to the eastwarJ. than the course of tha steam-ship. According to the evidence of the latter, when they were about two lengths apart two whistles were given, to which no answer was made by the tug. The wheel of the steamer was star.boarded, but not in time to avoid the tug, which was struck upon her port quarter and sunk immediately. The courses of the two vessels were converging by an angle of n.hout two points; if the situation is to be considered as the fifth situatiOn,