THE NEl'TUNO.

925

THE

NEPTUNO.

SULLIVAN'll. THE NEl'TUNO,

etc.

(Di8t'l'ict Oourt, 8. D. New York.

April 4, 1887.)

1.

8EAMEN-,PERSONAL INJURIES-DEFECTIVE TA()KLE:

A vessel and her owners are liable to seamen .for injuries caused by the use of weak and dangerous tackle by the order of the ship'li officers, after notice of its defects. '
'

2. SA.M:l!l-CABE SUTEn-,RuI!TURE.

The ,libelant, a weakly lad of 18, was tending the sling in the hold while the elld was unloading. The iron hook, by which the tackle was attached to the yard above, broke, and ,the sling fell upon the libelant, injuring him se· verely; causing, as, alleged. ",rupture near each groin. The hook broke in consllquence of a,flaw. which was indicated by its appearance, and was pointed out to the mate. HeliJ" that the vessel was liable; but. upon disputed evidence ssto the -lad's previous condition, $600 besides expen,ses was allowed.

In Admil:alty. , K. Rill, Wing &; Shoudy, and H. Putna'¥J'1" for libelant. Sidnt!Y Chubb, for claimant.
BROWN, J. On the thirtieth of March, 1886; the British steamer Neptuno, being at the port of Graytown unloading cargo, the libelant, a youtJh 18 years old, was directed by the mate to tend the sling at the hatch. between-decks. While engaged in this work, a load of about 300 pounds,which had been hoisted by the tackle nearly up to the mainyard, fellupon him, and knocked him insensible. On being picked up, his right forearm was found to be fractured, one of the bones of the right hand was broken, and a se,rious rupture disclosed in each groin. I think the evidence shows that the captain ofteredhim hospital treatment at Graytowll, but the libelant preferred to come to New York with the ship. When the, steamer arrived. here, on the sixteenth of April, he was still weak,andl;liflabled. He could not turn his arm. On the 20th. while the master's arrangements for procuring him admission to the Long Island hospital were still, incomplete,' the libelant being then ashore with the ma8ter, !W'ho was then actually engaged in perfecting those arrangements foradm.i;ssion, some friends took the libelant in charge, and obtained his entry·into the same hospital on the 22d. Under these circumstances, I cannot regard the libelant's conduct as amounting to desertion exonerating the ship. The bones of the arm, being in very bad position, had to be refractured and resl'lt. The operation was entirely successful, and the libelant was discharged on the twenty-fourth of July with the free use of his arm. He still suffers from the hernia. The fall of the load arose from the breaking of the hook at the end of the tackle by which the sling was raised. Some negligence of the winchman and fellow-servant is suggested, in allowing the tackle to be carried. too far. The evidence, however, is not sufficient to allow the breaking

of the hook to be ascribed to that cause. Several witnesses state that the hook, before it was used, was known to . be imperfect; that it showed a plain flaw in the bottom of the curve, at the place where it broke; that, before it was used, the mate's attention. was caIIed·,to its insufficiency, and that he directed it to be used, saying that there was no other. The mate has not beencal1edasa witness, though apparently without any fault of the ship; and there is no contradiction of this testimony. The break at the place of the yisiQle flaw, tinder the comparatively light weight of 300 . is. clear proofof its total.unfitness for such uses. The vessel is therefore liable, not merely for the wages of the seaman, and the cost of thfl treatment in effecting his, cure, so far as cureis possible, according to the usual maritime rille, (O#Y OJ Alexandria, 17 390;) but for the actual damage occasioned to the seaman through the negligence or tort of fheship, and of her own(\rs) irinot providing suitable and safe apparatus for unloading, and 6nac\X>unt of the lise 'of a weak and dangerous implement, after clear notice, by the direction of a superior officer, who for that purpose represents the owners. The Rheola, 19 Fed. Rep. 926; The Edith Godden, 23 Fed. Rep. 43; 3 Desjardins, Droit Com. Mar. § 725, p.298; Courde May 31, 1886; Alarionv. Valen8i, 2 Rev. Int. du Dr. Mar. 130. with the truss furnished, amount to The hospital charges, $104. ASide from the hernia, the libelant seems to be now nearly as well as before the acciden t. The chief difficulty is in determining whether the libelant had suffered any previous rupture. The master and one passenger testify that soon after the injury, when Severe rupture was visible on both sides, the libelant stated that that was an old matter. The libelant says that is incorrect; that he had no previous rupture whatever; and that he did not know at the time what that meant. The rupture after the accident was such as to require the use of a truss immediately, which the captain procured. His companions on board never saw any sign of rupture before, and it is certain that he used no truss before. At the same time, it seems hardly possible that the master, and a passenger who is disinterested,should have been wholly misled as to the libelant's answers. The only possible explanation is that the libelant did not understand the inquiries put to him in his then suffering condition. On the other hand, he was a weakly lad: was shipped asa boy at 35 shillings per month; and he did no hard work. Even if he was suffering froDlsIight rupture before, it is certain that this accident very greatly aggravated it. Under the circumstances of doubt that attend the case, and it appearing that but little Was due to hiIn for wages, I allow the sum of $104, above named, for hospital charges, and the sum of $600 for his injuries, fot which a decree may be entered. with costs.

'rHE l.IZZIE M. DUN,;

927

THE ,'MARtY

N. ,HOGAN,;!

BOOPEBll.THE MARY

N.

HOGAN.

(Di8trict Oourt, E. D. New York. March 28, 188'7.)
TOWAGE-PROPER CHANNEL-UNKNOWN Rocx--INJU:B.Y TO Tow.

The evidence indicating that,tlle ;tug, when towing libelant's boat. was proceeding in a pl'oper channel,8'.nd that 'the 'cau'seof the accident was the presence of a rock up to that time unknown, upon which libelant's boat struck, liabJe fOJ: the damage.

, ' " .. ,Deady & Goodriph, CJafJiptt.¢r for .

,

' libelant. ·

del?ision o,r this case turns upon the question 0,£ libelant's.ve¥eI, while being towed by the :M'ry N., Hogan, was towed upon arock locatedin,.the island and Lp.wrence point, l?n in the cha11point and the middle grou;ud, :in whic,h channel, as all agl'ee, there has been found since this accident a dangerous rock hitherto unknown. If the tug-boat took the libelant's boat, from the el,),St to ,west, channel" so close to the buoy that the libelant's. boat struck a hick on the middlegrov.nd, the liability of tlIe tug woul4 be clear, for such a course would1:le improper and dangerous. But if the libelant's boat, being safely in the East channel, and, while proceeding up the in the usua1 course, struck ona',rock in the channel, then the ,tug is not liable; as all concede that, the EaliJt channel was a pr()perch,annel, and the existence in it of any rock waS unknown prior tqthis Upon this question of fact, my opinion is with claimant., I entertain no, dou'bt,upon the evidence, that the tug the accident in the East channel, and not crossing middle ground. lj,nd that tpe CR\Js¢of the sinking of the ,libelant's boat:Was the presence in),he channel' of to that 'time 'wholly unknolfnto apy one, ana not any on the part of the tug. , The libel must be dismissed, and with costs.

THE" LIZZIE

"

M.

DUN. 1

THE LIZZlE M.DuN.

(DiBtrict Oourt. E. D. New York. March 28; 1887.)
1.

SEAMEN-WAGES-DESERTION-INTENT--DETENTION BY CIVIL AUTHORITIBB.

Where IL seaman went ashore without intention to desert, and while on shore woo detained by ILtlthorities as a witness, and meantime his vessel left the port, l.eiJi" that this did not constitute a desertion.

':Reported by Edward G. Benedict, Esq., of the New York bar.

2. SAME-EFFECTs-DEPAltTURE OF VESSEL-EFFECTS LEFT ASHORE-Loss-

When the vessel deplu-ted, tbie masl;oriIeft the seaman's clothes on shore. The latter, not knowing of their disp osition, did not recover them, and sued . the vessel for their vallUli. ,llelltJ!t-hia.t the'vessel was npt liable.

LIABILI'l'Y OF VESSEL. ,

Alexander Ash, for HornbloWerOc,

.:

In Admiralty. : ' " ' \ " ( . ., .

",'-'

',"

·

: ;;

BENEDICT, J. The libelant Was taken as seaman' on a coasting voyage without signing articles. In course of the voyage the vessel arrived in Washington, when the libelant,wenf., ashore desert, and while in a saloon on shol'lhVaEithken by,thepdliceas a witness against the saloon keeper, and imprisoned eight days in a'house of detep.ti9n.. ;MeanwhilE! the port. The master, who 1Vas *.ot 'of the seatnan's whereabouts,when toeai!', left libiHant1sdothes for'hi'm at near where' the vessel to have 'known ot'the 'dispbsitic;>p made Of ,,;ent 4e su pposed the to gone, ahd. h6t ftndlO'g vessel there; 'he took .other employment, and now seeks Wi of reBseI up to the time he left the'vessel alld for the 'value 'M his ,' " ,, ". The astoihe wages is'desertioh. But do not ili,ake 'o'?t a dese'rtion. 1'0 this chse 'the sections 4520 atid,4521' these' pr9visi?xls;, from of act of,1uly 20,1790, (1 St. at 13l,} were by the act of June infdfce.' U. S.v. Bain, Fed.' Rep. 192.' Undllrthe-se < provisiorts, the'libelant; not having signed articles, could without ihcdrr1bganyforfeiture of wages, andcotild rehover forsuuh time as' he did' duty on the vessel" abd at the est wages giVen in Baltifuorewithi'nthreemohths before thiJ time heshippe'd"besHles $20 penalty., I 'He has' not sued for' the penalty, nor c1aimeCIany'higherrate the rate atwhibhhe agreed, viz. , $18 per month. His right to recover wages time he left at that rate is clear; The balance dUe him at that rate is $33.30, and.,for that sum he may have a ' " , As to the clothes, I do not see that the vessel can be held liable for them. They were not used 'on board the vessel, and if the act of the master in delivering them to the ship-chandler under the circumstances amounted to a conversion, which I think it did not, still the ship would not be liable. The decree must be for $33;30, and as no tender is set up or proved, costs must follow the decree.

a.

o

END OJ' VOL't1M1ll

So.