Gabrielson v. . Waydell

Gray, J. The question, brought up by. this record, is whether the owners of a vessel can be made liable in damages for the willful and malicious act of their captain in assaulting and injuring a seaman while upon the high seas. The learned trial judge, in denying the motion to dismiss the complaint,, proceeded upon two grounds: namely, that the captain was the representative, or alter ego, of the owner and was not a, fellow-servant with the plaintiff; and that the willful and malicious nature of the captain’s act constituted no ground for an exception to the liability of the owners, if the act was performed witMn the general scope or course of Ms employment. Therefore, he left it to the jury to decide whether, in what, *5 he did to the plaintiff, the captain was acting in the line of his duty. I think this appeal should prevail. There was no conflict in the evidence and it proved a willful assault by the captain of the vessel upon one of the seamen; which nothing in the evidence, or within any principle of the maritime law, justified as coming within a proper, or an intended, exercise of authority. For its occurrence the owners cannot be held responsible, in my opinion, either upon sound reasoning, or upon any sufficient precedent; and the trial judge should have dismissed the complaint. I concede, fully, that we should, in determining this question, be guided by the principles of the maritime law. The plaintiff’s employment was, of. course, a maritime contract. It is matter of familiar knowledge that about the mariner, the maritime law throws a protection greater than is extended by the general rules of the common law to him who is employed in a service upon the land. This distinction arises, very naturally, from the difference in the nature of a mariner’s life and employment; which subject him to hazards and hardships and tend to make him heedless in character. So the maritime law is peculiarly solicitous of his rights and watches over his more unprotected condition. Thus, for instance, it is strict in requiring shipping articles and liberal in interpreting them for the seaman’s interests, in the presence of unfair, or inadequate provisions. It obliges the owners to provide a seaworthy vessel; it requires that the vessel shall be provided with proper appliances for the seaman’s safety and with adequate and proper food for his sustenance; and it imposes the duty of providing for his medical care and attendance in case of sickness or wounds. From the seaman a faithful and strict performance of his' duties is required, and, because of the responsibility devolving upon the master of the vessel for the successful conduct of the voyage, considerable latitude in disciplinary powers, is allowed to him; though no cruel or excessive punishment is sanctioned. In rendering to the seaman that care and in performing those duties toward him which *6 the law exacts from the owners of the vessel, the captain for such purposes represents them and a neglect of his, in such respects, is visited upon the owners. This liability follows from the situation of the parties. The owners are not in charge of the vessel. They remain upon the land and employ a master for the vessel; as well to carry out them assumed, or implied, obligations to the members of the ship’s company, as to perform the undertaking of conducting the craft successfully upon its voyage. The delegation of powers .to the master of the vessel comprehends their exercise in all such ways as the safety of the vessel and the welfare of its company render needful, or expedient. While in those respects, which demand of the owners the rendition of certain duties towards the crew, the master of the vessel must and does represent them and, by his failure or neglect, will entail consequences upon them for the breach of the obligation, he is, notwithstanding his representative and superior position, hut a servant; employed with the others of the ship’s company upon the vessel in the service of its owners. The scope of the service varies, as the position of the individuals employed differs; hut, relatively to the general undertaking, they are fellow-servants engaged in one common employment. In Scarff v. Metcalf (107 N. Y. 211), which was an action by a mate against the owners of a vessel to recover damages for negligence in omitting to provide him with adequate medical attendance and care, the plaintiff’s recovery was sustained in this court upon the ground that there had been a neglect of a duty imposed by the maritime law. Such a duty has always been recognized and was prescribed in the laws of Oleron and Wisbuy. What that case decided, with respect to the liability of the owners of a vessel to a seaman for a neglect of the captain, was that it existed whenever his neglect concerned something as to which a duty rested upon the owners under the principles of the maritime law; which, by force of the situation, could only he discharged through the agency of the vessel’s master. Its effect is to hold that in matters relating to the owners’ duty to the seaman, which the *7 captain must perform, liis neglect could not be regarded as merely that of a fellow-servant, but as the neglect of the owners. Oases which relate to the rights of passengers, or third persons, I do not consider as precedents, and several of that nature have been referred to. In the one class of cases the passenger’s contract for transportation entitles him to protection against the negligence or assaults of the employees of the carrier. In the other class strangers have the right to hold the owners liable for the consecpiences of a willful act of the captain performed while engaged in the prosecution or execution of the owners’ business. The cases of Hunt v. Colburn and Luscom v. Osgood (1 Sprague, pp. 215 and 82) related, as to the first, to the wrongful dismissal of an officer; and, as to the second, to the right to compensation for a minor’s services; and I cannot see in them precedents for the decision of this case. Ebr is the case of Sherwood v. Hall (3 Sumner, 127) an authority. That was an action for the shipment by the master of a vessel of the minor son of the libellant, and he recovered a certain amomit of wages and something for expenses and losses. The master there was the agent of the owners in shipping seamen to be employed on their vessel. The responsibility for the wrongdoings of the master of a vessel rests to a certain extent only upon the owners, and that extent is reached when the performance of the act complained of cannot be seen properly to come within some principle of the law of agency. The agency of the captain for the owners would include all those acts which are fairly embraced within the scope of his appointment, and which would be in the line of his duty; but when he injures his men by misconduct or assault, that would seem to be as much one of the risks which they assumed in entering the employment upon the vessel, as it would be one in the case of an employment in a concern upon the land where the control and superintendence had been committed by the proprietor to a manager. It is impossible to regard a wanton assault upon a seaman by his captain *8 as something within any intended authority, or within the scope of his employment. He outruns his authority and commits an act which the owners will not be presumed to have assented to. I believe that by no extension of the principles of the law of master and servant, the general somce of the law of principal and agent, could the blame be imputed to the owners of the vessel. It should at least appear that the act of the captain was required by the pressing emergencies of the occasion, and not that he had indulged his passions by a vindictive treatment of the seaman. In the cases of Dias v. The Privateer Revenge (3 Wash.C.C.262) and of Ralston v. The State Rights (Crabbe, 22), the distinction is recognized between the acts of a master of a vessel done while engaged in the course of his duty in the prosecution of the owners’ business and those wholly outside of-the scope of his employment. In the one case, the illustration was of a piratical seizure, and in the other, it was of the commission of a crime by the captain; neither of which acts can be imputed to his owners, or be intended to come within the employment or authority committed to him. In Wilson v. Rankin, (6 Best & Smith, 208), which was an action to recover insurance moneys, the question turned upon whether the authority of the master of a vessel was of such a general nature as to subject the owners to the consequences of his having stowed the cargo in violation of the statute. Judgment was rendered for plaintiff, and Cookbubm", C. J., in delivering the opinion of the court, used language quite applicable here. He said that “ it is a well-established distinction that, while,a man is civilly responsible for the acts of his agent, when acting within the established limits of his authority, he will not be criminally responsible for such acts, unless express authority be shown, or the authority is necessarily to be implied from the nature of the employment, as in the case of a bookseller held liable for the sale by his shop-man of a libellous publication. Bnder ordinary circumstances, the authority of the agent is limited to that which is lawful. If, in seeking to carry otit the purpose of his employment, he *9 oversteps the law, he outruns his authority and his principal will not be bound by what he does.” And again he said that te no authority can be implied in the master, in the discharge of his duty, to do that which, with reference to this part of his duty, was a violation of the law.” What was the act here complained of, if not a willful and unjustifiable assault ? It was not disciplinary, for the idea of discipline does not Suggest a personal attack with blows and kicks; and incompetency, or inability, does not justify punishment. (Payne v. Allen, 1 Sprague, 304.) It was certainly within the category of those offenses for which the United States Statutes have prescribed the punishment of fine or imprisonment. (U. S. Eev. Stat. § 5347.) It was of a criminal nature, and, hence, not intended by the law to be within the scope of the employment of the captain, nor within the authority committed to him. Conceding all that we should to the force of the established principles of maritime law in determining the question of liability here, we cannot say that the general rule at common law is interfered with in its application to the case; or that those principles of tli^ maritime law establish any different rule. There is no question but that the powers of a captain •of a vessel are very extensive by virtue of his peculiar position. His great responsibilities and the general interests of •commerce invest him with much discretionary power. His is the agency to which the law looks for the fulfillment of the obligations resting upon the vessel’s owners; and for his shortcomings and wrongdoings, when occurring in the performance of his duty or in the scope of his employment, those owners must be liable. The more extensive powers and wider control exercised by the captain enlarge the field of service and necessarily heighten the responsibility of the owners to passengers, servants, or strangers; but, after all that can be said, where is the warrant for holding them liable for the consequences of acts which are in utter departure from the execution of a duty ? He has absolute command over the seamen in matters pertaining to their duties ; but his command does *10 not extend over their persons beyond the infliction of usual and necessary punishment in cases of disobedience or infraction of rules. We are then brought to the consideration of the rule of liability which would be applied to this* case under the law as settled by this court, and there we will find the rule is not respondeat superior. We find that for an injury, resulting to-an employee from the willful neglect, or tortious act of another, who is engaged in a common employment with him, the master is not liable at the suit of the injured employee. He has performed his duty when he has furnished to those who-are employed by him a reasonably safe place, appliances adequate to the purposes of the employment, and when he has appointed as fellow-servants in the undertaking proper persons, competent for their positions. After that, for what may happen from the risks of the employment, or from the negligence and torts of fellow-servants, he will not be responsible. In the early case in this court of Keegan v. W. R. R. Co. (8 N. Y. 175), Ruggles, Ch. J., stated the general rule thus: “Whenever the injury results from the actual negligence or misfeasance of the principal, he is liable as well in the case-of one of his servants as in any other. But where the injury results from the actual fault of a competent and careful agent (as may sometimes happen) the fault will not be imputed to the principal when the injury falls upon another servant as it will whére the injury falls on a third person, as for instance on a passenger on a railroad. In the case of a passenger the actual fault of the agent is imputed to the principal on grounds óf public policy; in the case of a servant it is not.” There is no evidence in this case that the owners failed in a compliance with any obligation to their employees in the ship’s company, in the selection of a proper and competent, captain; and were they to be accountable for his loss of temper or misconduct toward the other employees % I think not. The proposition that the master of a vessel is not a fellow-servant of the seaman is predicated upon the difference in. *11 their grades, and it has received the support of a decision in the United States Supreme Court, in the case of Chicago, etc., R. R. Co. v. Ross (112 U. S. 377), upon which case subsequent decisions in the federal courts have been based, which are referred to in the respondent’s brief. The opinions in the cases of “The Titan ” (23 Fed. Rep. 413); “The Sachem" (42 id. 66); and of “The A. Heaton ” (43 id. 593), which are referred to by the respondent, were expressly rested upon the Boss case. Spencer v. Kelley (32 Fed. Rep. 838), which seems to give some support to the respondent’s contention, was at nisi frius. The trial judge’s remarks in his charge, if susceptible of the meaning attached to them, have no support, unless in the Boss case. He certainly refers to no authority. The Boss case was decided by a mere majority of the justices and is of questionable authority. It is without weight in this state, and has been distinctly disapproved in Loughlin v. State (105 N. Y. 159). Judge Andbews, speaking there of the responsibility of employers for injuries sustained by servants from the negligence of co-servants, remarked: “In harmony with the general principle that the character of the act is the decisive test, it has been repeatedly decided in this court that the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule, nor make the master hable.” The learned judge, referring to the citation of the Boss case, said it was “ in conflict with the course of decisions in this state and elsewhere.” That case and many prior decisions of this court, to some of which Judge Andbews refers, have settled the rule that the liability of the master for a servant’s injury, received while in his employment from the act of another servant, does not depend upon the grade or rank of the offending or negligent servant. The liability of the master to his servant in such cases does not depend upon the *12 doctrine of respondeat superior. That doctrine has no application and if a servant, under guise of exercising the authority conferred upon him, willfully and maliciously does an injury to another servant, the servant’s master is not liable. As to such a matter the relation of master and servant affords no ground for an action. (Sherman v. Rochester, etc., R. R. Co., 17 N. Y. 153; Hofnagle v. R. R. Co., 55 id. 610; Malone v. Hathaway, 64 id. 5; Crispin, v. Babbitt, 81 id. 516; Loughlin, v. State, supra.) In every case, it is the character of the act which causes the injury to a fellow-servant that determines the question of the master’s liability, and the • dividing line may be found in the willfulness, or in the neglect, which caused it. It was said in Wright v. Wilcox (19 Wend. 343) that the master is not accountable for every mischievous act of the servant, which he is enabled to commit in consequence of the general relation; and Lord ITenyoh remarked in McManus v. Crickett (1 East. 106): “ When a servant quits sight of the object for which he is employed, and without having in view his master’s orders, pursues that which his own malice suggests, he no longer acts in pursuance of the authority given him.” The law may be regarded as settled in the English courts, for a number of years, that the master is not liable to a servant for an injury occasioned by the negligence of a fellow-servant, although he be a vice-principal or the manager of the concern. (Priestley v. Fowler, 3 M. & W. 1; Wilson v. Merry, L. R. 1 H. of L. Sc. 326; Howells v. Lansdore Steel Co., L. R. 10 Q. B. 62.) There is a very recent case, quite in point, decided by the English Court of Appeal. In Hedley v. Pinkney & Sons Steamship Co. (L. R. Q. B. Jan. 1892, 58), that court decided, reversing a judgment recovered below, that shipowners were not hable in damages for the death of one of the crew of a steamship, occurring by reason of the captain’s negligence, in a matter pertaining to the care of the ship. It was there held that the captain and men were fellow-servants, engaged in a common employment, and for the injury result *13 ing to the one from the negligence of the other their master was not liable. Reference was made in the opinions to the case of Ramsay v. Quinn (Ir. Rep. 8 C. P. 322), where a contrary view was taken by the Irish Court of Common Pleas as to the liability of the shipowners and as to the relations of the captain and seamen, and the Court of Appeal refused to accept or to agree with that decision as authority. Kay, L. J., in his opinion in the case, said, in referring to Wilson v. Merry (supra), which was a case where a miner was killed through an explosion caused by the negligence of a manager of the mine: “ I see no difference between that case and the case of a captain of a ship and one of the crew.” I think there is no reason for applying any different rule of law in this case than that recognized in our own and in the English courts. However great may be the powers of a captain of a vessel, and however absolute his control,' these considerations do not furnish a reason for holding his owners responsible for his malicious conduct towards the other seamen. They are all working together in the same undertaking and are in a common service, and his misconduct is one of the risks the seaman assumes. I am not satisfied that there is any principle of the law which intends, or -that any consideration of public policy demands, that the owners shall come under any obligation to indemnify a member of the ship’s company against such negligent or tortious acts of the captain. I deem it, too, somewhat significant that no case is referred to in the Admiralty or United States Circuit Court reports prior to the decision in the Boss case (supra), where the owners of a vessel have been sued for the captain’s tortious acts, and my own examination has revealed none; though I find many cases where the captain has been sued for damages. For instance, in Thomas v. Lane (2 Sumner C. C. decided in 1834) the captain was sued and held as jointly liable with a mate for the mate’s tort. In Forbes v. Parsons (Crabbe, 283, decided 1839); in Fuller v. Colby (3 Woodb. & Minot, 1, decided in 1846); in Jordan v. Williams (1 Curtis C. C. *14 69, decided in 1851), and in Payne v. Allen (1 Sprague, 304, decided in 1855), the libels were against the captain for personal wrongs from his acts of violence and ill-usage. I am quite unable to perceive any reason for holding the owners of this vessel responsible for the mere passionate and vindictive act of their captain. The complaint should have been dismissed by. the trial judge on the motion of their counsel. The judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.