Scarff v. Metcalf

Barnard, P. J. : There was no error in the declaration by the judge in his charge to the jury, that the acts of the captain were the acts of the owners. Conceding that there may be such a charter made by the owners to the captain as will make the captain an independent actor in respeet to the ship, the evidence does not show it. “ I had an agreement with the owners to sail freight on what is known as shares, that is, I to have half the gross stock of earnings of the vessel and pay for the victualing and manning of the vessel and pay the tonnage out of my part of the earnings. Under this agreement the captain had bought the supplies and hired the men. It was an arrangement for compensation of captain and crew by the ■owners. There is no appearance of an independent command. He was the owners’ captain with power to hire his own crew, but the vessel and her owners were never without liability to them for their wages. There was no period, but a letting of an owner on shares.” (Kenzel v. Kirk, 37 Barb., 113.) This is especially so when the seamen shipped in ignorance of any agreement between the captain and the owners. The question of the duty of the captain is well settled. It is the imperative duty ■of the captain or master, if he knows of the seaman’s danger and how to remedy it, to procure such treatment as will restore the seaman on land or on shipboard. With this rule of duty the case is an extreme one against the master. The seaman had an aneurism in the leg. At first the captain supposed the difficulty would yield to ship treatment. A doctor was called in and he was told it needed a surgical operation to restore the plaintiff. He asked the captain to send him to a hospital at Sagua La Grande, where the vessel was and where there was a hospital. The captain refused. He was told it would not be safe to take the plaintiff to New York unless he could arrive at that port in twelve days. The captain still refused to send the plaintiff to the hospital or to permit him to see the United States consul. It was twenty-seven days before he arrived at New York, and then it was too late. The plaintiff lost his leg by necessary amputation. When the master refused the plaintiff’s requests the plaintiff was helpless in his birth on shipboard. Certainly the master failed in his duty. The resulting damages followed of course. If the plaintiff had gone to the hospital and been cared, [205] tbe damages would liave been tbe cost of tbe cure. When a helpless man is suffered to lose bis leg, it would be no measure of compensation, based on reason, to give wages only while be was sick. The plaintiff bad tbe right to protection from sickness and disease, and be was dependent for this protection upon tbe sole power of tbe master. Tbe non-performance of tbe obligation was a tort SO' far as to entitle tbe plaintiff to compensation for tbe injury which resulted therefrom. Tbe verdict is not excessive and tbe judgment should be affirmed* with costs. Pratt, J., concurred. Judgment and order denying new trial affirmed, with costs.