32 F. 838 -

838

.

Fll:DEl\At. Rll)l'ORTER·

'

,

'SPENCER' '0. KELLEY

and another.

«(Ji:,.cuit'(J6urt,.N.D. Ohio, E. D. February Term, 1887.) ·1.
ASSAULT

AND BATTERy-By M'.A.srBR OF 'VESSEL-LIABILITY OFOWNEB. In l>y a seama,ll' against the owner of ,a vessel, for injuries from assault committed by the :master, in order to mak,e the owner liable, it must be sliown that, in the infliction of the injury complained of, the master was act· ing within the scope of his duty, and in the exercise of his control over the '

8.

S. SAME. , Where a master of a vessel assaulted a seaman for an act of disobedience, after the emergency had passed, snd the act had been done,held, that the , master;walJ not in the line, of his duty, and the owner of the vessel would not be ,liablE! to fuesea,man fpJ,' any injury he mll,y have received.
SAME-By QAP'l'AIN-DISOBEDIlllNCE OF ORDERS.

In' a'suit for damages by a seaman against the owner of a vessel for injUries inflicted by the captain, where the seaman was in the wheel-house and refused to leave ,On the order of the. captain, or refused to change the wheel at der, or resisted him when ti:ymg to change it, held, that the master had the right to use such force as was necessary to remove him from the pilot;house, or to put the wheel in proper pO,sition; but that if he used more force thlln was reasonably necessary, or unnecessarily injured the plaintiff, the owner was liable. . had no right to assault him. ,

4.

SAME.

, If the seaman was rightfully in the wheel·house and had not disobeyed or-

ders or resisted the captain, then the

In October; 1886, the plaintiff, Edward Spencer, shipped on board a vessel called the J. H. Prentiss as a seaman, on board of which vessel, ,as the master of it, was Captain Gaines. The defendants, John Kelley and D. B. Sanborn, (Kelley alone being served; Sanborn not in court,) were at· the time the owners of the vessel. The vessel started from the harbor of Lorain on the ev¢ning of the twenty-seventh of October, and the plaintiff says that in the lake, shortly after getting out of the harbor, the master of the vessel, Captain Gaines, brutally, unpecessarily, and improperly assaulted and beat him by striking him repeatedly on the face and on the head, and throwing him down, and and cutting him on the head and face, whereby plaintiff was n;1ade senseless, and thereby greatly injured. F. J. Jc'G. O. Wing, for plaintiff. H. D. Goulder and Andrew Squire, for defendant.
WELKER, J., (among other things, charged the jury:) The relations of the seaman, the plaintiff, and the master have something to do with the rights and duties of each of these parties. The defendant was engaged in the maritime business on the lakes. He had to use his vessel through the instrumentality of agents, and, as the commander in chief of his vessel, he employed Captain Gaines, and all of the other employes on board of the vessel were the employes of the defendant as well as Captain Gaines, but they were under the control, direction, and command of the master of the vessel. If this injury had been d0ne by the carelessness of the co-

SPENCER V. KELLEY.

839

laborer of this plaintiff, working in the same capacity as plaintiff was, the owner of the vessel would not be liable; but for any negligence, or carelessness, or injury inflicted upon subordinates by the master of a vessel who had the right to control it, the owner of the vessel would be , responsible. You will readily see that in the exercise of the business of transportation on the lakes in vessels, there must be some one who is in supreme command of the vessel. It will not do to divide up the responsibility. The master necessarily has the control of all of the other employes, and it necessarily follows that all of the subordinates are bound to obey the orders and directions of the master in charge of the vessel. He is to be held responsible to the owner for the safety of the property intrusted to him; he is to be held responsible for the security of the property in his charge for transportation; he is responsible, also, for the lives andthl) health of the persons who may be employed on board of his vessel; and this responsibility being upon the master, it necessarily follows that he must have the control and direction of his subordinates in the performance of duty. It seems in. this case that the plaintiff was shipped as a wheelsrnan, and that when starting from Lorain he was put in charge, with somebody else, of the wheel, and, after they got out of the harbor at Lorain, steering down the lake, the plaintiff was in the piloto-house or the wheel.,house at the time when it is said this occurrence took place. What was done there, what the plaintiff was doing at the time, and what he had done, as you can. In the are questions of fact that you must find out next place, what the master of the vessel did on that occasion you are to settle and 'determine in the light of the proof. And when fully considered all of the evidence and found out exactly how this thing occurred, and what was done by not only the plaintiff, but by the master of the vessel, you will he prepared, then, to apply some general prin.. ciples of the law, which it is the duty oUhe court to give you that you may be enabled to determine correctly how the case ought to .be de., cided. This assault, as it is claimed, took place partly in the pilot-house Or and partly on deck. What was done in the 'piloto-house, and what was done outside are questions that you must determine from the evidence before you. This defendant, personally, had nothing to do with this transaction, but he is liable for some of the acts of his master on board of the vessel. He is not liable for every act that the master may do on board of his<vessel; but I direct you that, to make the defendant liable for the conduct of the master of his vessel, it must be shown that in the infliction of the injury complained of in this, case the master was acting within the scope of his duty as such master, and in the exercise of his control over plaintiff on that occasion. If, in the discharge of his duty, or in the exercise of this control over his subordinate, he inflicted the injury complained of, the defendant would be liable, for that class of injuries, to a recovery in, this, behalf the plaintiff for damagesslistained thereby.

840

FEDERAL REPORTER.

There is another principle: If ;the plaintiff was wrongfully in the pilot-house and at the wheel, the master had a right to order him away from the wheel, and out of the wheel-house, and if he refused to go Qut or to leave the wheel, or resisted. he had a right to use such force as might be reasonably necessary to remove him from the pilot-house and prevent him from interfering with the wheel; but. if the plaintiff was rightfully iri the wheel-house or pilot-house, and did improperly put the wheel in a wrong position so as to endanger the safety of the vessel, it was the duty the master to direct him to change it, and, if he neglected or refused to do so, the master had the right, and it was his duty, to change it himself. and if the emergency was great, without waiting to direct any other person to do it; and, if the plaintiff resisted the master in so changing the wheel, the master had a right to use such force and means as might be necessary to enable him to put the wheel in its proper poaition. If he used more force than was reasonably necessary for that purpose and unnecessarily injured the plaintiff, the defendant would be liable for such injury. In the next place, in ascertaining the amount of force that was necesr sary, if this plaintiff was improperly doing what it is claimed on the part of the defense htl was doing, in the excitement of the occasion and emergencies, you cannot very nicely and minutely measure the amount of force used by a party, whetheliit is necessary or not at the timej but you must judge, as best you can:from the emergency of the situation in which the parties were at the time, the amount of force nec-essary to be used for the purpose of carrying out the orders of the captain. If,. on the other hand, this plaintiff was rightfully in the wheel-house, and had not disobeyed any of the orders, had not resisted or neglected his duty, then the master of the vessel had no right to make an assault upon him. In the next place the master had no right to punish the plaintiff for disobedience of orders or want of the proper discharge of his duty after the acts had been done. He has no right to take the law in his own hands to punish a party for the disobedience of orders that had passed by. Other remedies must be had. But, if the master did so after the emergency had passed, he was not doing it in the line of his duty, and the defendant would not be responsible for that injury, however responsible and liable the master himself might be. If the acts complained of were done by the master after the necessity to change the wheel, or get him out of the wheel-house had passed) the defendant would not be liable for it, for the reason that it would not be in the scope of the master's duties and in the performance of such duty of the master. One thing must be considered in reference to this assault, and that is whether the two were connected together so as to be but one assault and battery; part of it may have occurred after he passed out of the pilothouse, but if.connected together, then it might be regarded as the same assault and battery as that commenced in the pilot-house, and you cannot very well nicely distinguish the exact time when the first ended and the second commenced. But, if time enough elapsed between the two so as to show that the assault that was made outside on the deck was

of

PEDERSEN V. PAGENSTECHER.

841

made by way of punishment on the part of the master for disobedience occurring befOre and when there was no necessity for it, I direct you in that respect that, although the master would be liable, yet the owner of the vessel would not be liable for such action and this injury.
Verdict for the defendant.

PEDERSEN V.

PAGENSTECHER.

York.

(piBtrict Oourt, B.

n. N6tO

November 15; 1887.)

RESULT OIl' NON-

1.

CHARTER-PAR'l'Y - STIPULATION AS TO TiME OIl' SAILING COMPLIANCE-RIGHT TO REJECT.

A stipulation.in a charter asto the time of sailing of an absentvessel.to·be furnished tothe charterer, is a condition precedent, which, if not fulfilled,entitles tM charterer to reject the vessel. The vessel under such a stipulation takes upon, herself the risks of all causes that may prevent a compliance with the condition.

2.

SAME-SAILING-WHAT CONSTITUTES.

A clause in the charter of the bark A.described her as "now 'at Bremen, guarantied to 'sail on or before December 10th." On the fourth of December, her general cargo being in, she was moved, by order of the harbol'·mastel', close to the dOCk-gate, after which she- took on balan,ce of crew,and provisions. Qn the 15th she went out to the roadstead, and aailed on the 20th. Hel4, that her move on the 4th was not a constructive sailing.

Biddle Wing,

Ward, for libelant. Putnam, for respondents.

BROWN, :r.. The libelant sues to recover damages for alleged breach of charter-party in not accepting the Danish bark Atalanta when tendered at New York to be loaded. The charter describes her as I'now at Bremen, loading for Philadelphia, guarantied to sail on or before December 10, 1886." The respondents refused to accept her because, as they-allege, she did not sail from Bremen until after December 10th. . The stipulation as to time of sailing; was a condition precedent, whIch, if not fulfilled, entitled the respondents to reject the vessel. It is not a question of fault or reasonable excuse for not sailing within the time provided. The vessel, under such a stipulation. takes upon herself the riRks of all causes that may prevent a compliance with the condition. David80n v. Von Lingen, 113 U. S. 40, 49, 5 Sup. Ct. Rep_ 346, and cases there citediHore v. Whitmore, Cowp. 784; (Jroockwit v. Fletcher, 1 Hurl. & N. 893; Weisser v. Maitland, 3 Sandf. 318. ' The proof shows that in December the vessel was loading within the dock at Bremen. On the fourth December, her general cargo being all, or nearly all, on board, she was ordered by the harbor-master to remove from that part of the dock where she was lying to some other berth. She was thereupon moved as near to the dock gate as she could get, and then took on board the balance of her crew and provisions for the voy-

842

FEDERAL REPORTER.

age. The: respondents claim that on ,the sixth. of December she was entirelY,ready for sea. She did not leave her last berth within the dock, ho,weveri,nor go out of the dock-gate, until the 15th,when she went into the outside, where she was detained by contrary winds until the twentieth of December, when she went to sea. I do not think the whole evidence fairly sustains the claim that she was prepared to sail by the sixth of December. The Friedlander sailed from the same dock on the 11th. The mate of the Atalanta iestifies that the Friedlander sailed on "one of the days I was getting ready with her cargo-when we were taking in the last of her cargo." And if the Atalanta was in fact ready to sail on the 6th, no reason appears why she did not sail. The mate's testimony indicates the contrary. It has be'enneld that similar warranties are complied with if the ship breaks and accomplishes some part of the journey, however short, with the bona fide intent of prosecuting so muoh of the voyage, though the master knew that he would be obliged shortly tocometo anchor be.cause o.f contrary and made the start in order to comply with the warranty. Cochran v. F'isher, 4 Tyrw. 424, 5 Tyrw. 496; The Francesco Curro" 4 Phila. Wkly. Notes Cas. 415; Pittegrew v. Pringle, 3 Barn. & ,Juthe case .last cited LordTENTER.DEN of the decisions is this,that jf a snip quits her mooringsand'removes,though()ulyto a short distance, being perfectly ready to proCeed 'upOifber v.oyage, 'and i$ by some subsequent occurrence detained. thil.t is '11 sailil1g; but it Is otherwise if at the time she quits her moorings and hoists Mrssils; she is not in a condition for completing her sea voyage." The facts of the present do not' bring tl1eAtalapta within 'the principle of these decisions: . The change of berth on the 4th, although brollght, he1'.a, few lengths. nallrer the through which she 'Jl?1:lst'pass, W.llB not a in the prosecl1ticin of any part of 4er, y<?yage.' She waEl P9t then, 'ready to sail; neither her crew nor necproyisions were on ,hoard..· She changed her berth, by the require:me'l1t pf the harhor-master, and was obliged to stop at some other place Within'the dock, because not ready to proceed to sea.. When she, was. afterwards ,got iead'y,whether heforeor'after the 10th, she did not." prosecute any part the voyage until the, 15th. Her previous ,of place was merely in preliminary preparation for the voycannot beheld to .aconstructive sailing prior to the 10th, aC), tq 4efeat the plain :intentiono! her. charter. '. Pittegrew v. Pringle, 3 iB.a!l1';& Adol. 51,4;, Graham v. ,Earra8, 5 Barn. & Adol. 1011j llidsdale v:N,ewrihq,m, 3;M:?-we & S. 4i?:6; Ndsonv. Balo/Lf!or,l Moody & M. 309. The 'libel must be diswissed, with c<>sts.
c

be

,';.

"" : (J

ELWELL V. TH:&GEORGIA.

843

'tDi8trict Court, E. D. Ne1J)York. October 6; 1887.).
1.

ROTT<JMRy,..".VEBSEL IN DISTliESS-FAILURE TO NOTIFY'OWNER-WHENJU&TIFIABLE,

Where no speedy means of communication, exist between the place ;where a vessel is in distress and the place of residence of the owner, it is permissi· ble for the master to raise money on bottomrywitllout first notifying tlle owner.
2.

SAME-TAKING CHARGE OF DISTRESSED VESSEL.

A sum of money was paid to a bottomry lender. who was master of anotller vessel. for allowing his mate to take cllarge of the vessel borrowingQn bottomry. On suit brought on the bond, held, while allowing, the bond, that it should be reduced by the amount 80 paid.

In Admiralty. The brig Georgia was in di/Jh::ess in the harbor of OldProvidenoo, her naed master and some of her crew having died, and the ve13sel being of supplies and without money. Money was advanced to her by libelant's assign of on request of the consul, and a new master was appointed, who executed a bottomry bond for the money so advanced. .No notice was giventlle owner 'If any intention to raise money on bottomry. The .from Nassau, N.P., being under the, English flag. All vessel the proof a/Jto ther,esidence of her nominal owner was that agent in New York had heard more than a year before tha.t he was in Matanzas, isno telegraphic communication between Old Providence and New York, where the owner's agent resided, anda letter seI,lt betweeI,l the two places' arrives in from nine to sixteen days. One hundred doBars was paid to the bottomry who was master of another for to take charge of the Georgia as master. allowing his Benedict, Taft &- Ben,edict, for libelant. Sidney Chubb, for claimant.
BENEDIC:J,',J. I am of the opinion that the objection taken .to the validity of the bottomry bond sued on, based on ,the failure to notify the owner of the intention to raise money on bottomry, is not well The circumstances proved are sufficient, in my opinion, to excuse the failure to notify the owner. I am also of the opin}on that the bond, should be reduced by the sum of $100, being the amount charged as paid to the bottomry lender for his permission to allow his mate to take charge ofthebrig as master. For the remainder of the bond,with the maritime interest, the libelant may have a decree.

IReported by

G. Benedict, Esq., of the New York bar.