Langaas v. The Barkentine "James Tuft"

Estes, J. This is- a libel in ádmiralty in rem filed on be>lialf of a seaman on board tbe barken-tine “James Tuft”, for damages in the sum of ten thousand dollars for personal -injuries sustained on board said barkentine, through tbe alleged negligence of the master thereof. The complaint also asks for general relief. The facts appear to be these-: On tbe 16th — 422 — clay of July, 1902, the libellant shipped on board the said barkemtine for a voyage front Newcastle in the Colony of Australia to Honolulu in the Territory of Hawaii, leaving Newcastle about the 19th day of July, of said year; said vessel was in charge of and managed and controlled by one August Friedberg, acting as master thereof, and who was a part owner in said vessel to the extent of a thirty-second interest therein. Before leaving Newcastle, a yard spar and also, one other spar were placed aboard the vessel and lashed amidships. After-wards and before the accident occurred one of these spars was moved forward while the other remained in the original position. Some eighteen days out' from Newcastle, the libellant was ordered to “tighten upi the: weather braces of the nlainyard and to make square fkei yard.” He was standing near the rail preparatory to doing this, and was working at the braces, when a heavy sea washed over the rail, threw him down on the deck and this yard spar lifted up by the heavy sea came down on the foot of libellant, when another sea coming, be was thrown further under the spar which caane down heavily on his knee, and finally falling on the thigh of the libellant broke it, causing in the technical language, of Dr. Cooper, a medical expert introduced by libellant, “a fracture of the upper third of the femur of the right leg.” Libellant was pulled out from under the- spar and taken to the forecastle first, where rude splints were made ready and his limb set by the Captain with, what little knowledge he had. He was afterwards removed to the. cabin of the second mate and a box was made in which to place the limb so that in the words of the libellant “it would not roll.” There libellant remained until the vessel reached Honolulu some thirty two days later when he was taken to the United States Marine Division of the Queen’s Hospital where he has continued to remain for the period of nine months and a half, not yet being discharged from said hospital.', During; this period of time, he has undergone two: severe surgical operations, after one of which he remained in bed six weeks, and after' the second operation three months, both being necessitated by the condition of the thigh, as a result — 423 — of the injury. The Captain of the vessel after paying the libellant what he deemed the balance of wages due him for the voyage and placing him in this hospital, left Honolulu and' sailed for Puget Sound and did not return to. Honolulu until at or about the lime of the commencement of these proceedings,, having been on one other voyage since the accident and having-no one of the original crew with him excepting his present first mate. The libellant as a result of the accident is a cripple walking with great difficulty and even then only with the aid of a cane. The right leg is deformed and fully three inches shorter tiran the other one- When the accident occurred, the vessel was 1T00 miles from Newcastle, 770 miles from Auckland and 1500 miles from the Island of Tahiti. On the twelfth clay out after the accident occurred, the vessel was within sixty miles of Tahiti and enjoying fine weather. They were at this time nearly three weeks’1 sailing distance away from Honolulu, as it took nineteen clays to reach this port. It is not claimed that libellant contributed at all to his injury. Under the pleadings and proof in this case, two questions are presented. Eirst, as to whether the injury to. libellant was clue in. the first instance to the negligence of the captain of the vessel by tlie improper placing and insecure lasbing of the spars* a part of tire apparel of the vessel, for which negligence the owner is liable; and second, as to the neglect of the captain of the vessel after the injury occurred to libellant, in not putting in to the nearest port on the Island of Tahiti for surgical aid for him. Among tlie duties which the owner of a vessel owes to its. crow, are to see1 that the vessel is seaworthy in all particulars; that it is provided with all the necessary appliances for the safety of the ship and of the men; that the ship is properly manned) and provided with proper food supplies; and further that in ease of sickness or injury of any member of the crew, that he shall he given proper care and medical attendance. Eor a failure in the performance of any one of these duties, the owner of the ship is liable. — 424 — I do not think under the evidence produced in this case, that there has been shown any neglect of any of these positive duties «on the part of the owner of thei barkentine1, except the last, .that requiring, proper care and medical attendance. There is no allegation or proof of any incompetency among the officers; no allegation or proof of any neglect in providing the usual number of men required to- man the vessel, and none of any uneeaworthiness in any particular. It is true these spars were placed aboard the vessel at Newcastle1, but it appears from the weight of the evidence that it is usual and customary to place ■spars of the character described on board sailing vessels to be used in case of emergencies. There is some doubt in my mind as to whether these spars were1 properly fastened or securely lashed to the decks. The libellant testified that on the day before the accident occurred on© of these spars had been moved forward, 'and. that by such removal the center lashings of the remaining spar were taken off, whioíí spar was then only fastened at either end by lashings secured to ring bolts attached' to the main and after hatches, leaving the center loose. This testimony is contradicted by that of the captain and the present first officer of the ship, both of whom claim that the fact that the spar raised as far as the lashings would allow7 it was due to tbe heavy seas and the slackening of the rope occasioned by the constant wetting. It is common knowledge that water will cause ro'pe to stretch. The weather had been bad and on the day of the accident w7as very stormy with high seas, which swept the deck. The ship had 1800 tons of coal on board while its measurement was only 1000 tons. The vessel was therefore loaded to her full capacity. I do not feel at all certain as to there being any negligence on the part of the captain or other officers of the ship in respect to causing the injury. I am inclined to believe that tire accident was th© result of the perils of navigation, and resulted from one of the risks incident to libellant’s employment for which the vessel is not liable: In tbe case of the City of Alexandria, 17 Fed. 390, in an action for damages for injuries sustained by a seaman who, in endeavoring to obey a,n order, fell down an open hatchway, — 425 — and. who claimed his injuries were due to the negligence of the ship’s officers, the Court held: “"Whatever negligence there was, — whether in leaving the hatches uncovered or in not notifying the libellant 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......The navigation of a ship from one port to another constitutes one common undertaking or employment, for which all tire 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 prosecution 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.” Olson v. Oregon Coal & Navigation Co., 96 Fed. 109; Id. 104 Fed. C. C. A. 292. In this latter case, both in the District Court and upon appeal to the Circuit Court of Appeals, it was held, “That while it is true the master of a ship is a. servant of a higher grade: than that of a seaman, and represents the owner in respect to the personal duties and obligations which the: latter owes to' the seaman, still in all matters pertaining to the navigation of the ship, the master and the seaman are fellow servants engaged in one common employment and each assumes the risk of the other's negligence in the discharge of the duties incident to such common employment.” Gabrielson v. Waydell, 135 N. Y. 1; Scarf v. Metcalf, 107 N. Y. 211; Loughlan v. State, 105 N. Y. 159; City of Norwalk, 55 Fed. 98. It may be that some qualification of this rule should be made, where, as in this ease, the master is a part owner of the vessel, but I do not deem it necessary to discuss that point, as it is not in any view decisive of the case, believing as I do that there was — 426 — no such negligence shown, as would entitle thei libellant to damages for tire injury primarily d'omiei Mm. But whatever' I may hold a® to the failure of libellant to sustain his claim, for damages against the sMp by reason of the negligence of the ship’s officers in causing the injury, which was not madei clear, there is no doubt whatever but what he is entitled to damages for the gross negligence of the captain in failing to put into the nearest port ait the time of the injury or as soon thereafter as it was possible! to do so, to- get proper surgical aid for this man. This was thei positive duty of the captain of the vessel, irrespective of any sacrifice of time or risk to cargo, “it was a burden wMch the law imposes.” Brown v. Overton, 1 Sprague 462, Fed Case No. 2024; The Iroquois, 113 Fed. 964; Whitney v. Olson, 108 Fed. 292; The Troy, 121 Fed 901. The maritime law is sensitive as to the rights of seamen and rigorous in providing for their protection. When injured in the service of the ship, or disabled by illness while in such service, they are entitled to be cared for and cured if possible at the expense of the vessel; and where that duty is not performed and the seaman suffers from the’ neglect, the ship is liable in damages for the suffering and pain caused by such failure. Couch v. Steel, 77 Eng. Com. L. 402; Brown v. Overton, 1 Sprague, 462; Fed Cases No. 2024; Tomlinson v. Hewett, 2 Saw. 278; Whitney v. Olson, 108 Fed. 292; The Troop, 118 Fed. 769. But what are the uncontradicted facts in this case ? The captain admits the injury; he knew the man’s thigh was broken; he admits that he attempted to set it. He must have known of the dangerous probabilities that might ensue through lack of proper surgical atendanc© therefor. Even if thei thigh had been set properly it would b© almlost impossible for the bones to knit on ship boiai’d owing to the constant movement of the vessel. The captain testified that at the time of the accident, “the ship was in latitude 44-55 south; longitude 168-30 w. which would bo from Auckland approximately 770 miles.” That they were some 1500 miles from Tahiti, and “1700 miles from Newcastle.” It may be true that it was too rough and stormy, as he stated, logo back to Auckland o-r to Newcastle, but the Island of Tahiti — 427 — was directly in, the line of this vessel’s voyage, and on the twelfth day after the injury, tire vessel was, as testified to by Captain Eriedberg, within “60 miles of thei Island of Tahiti,” and 'they were then enjoying what he calls “fine weather.” The libellant all this time was lying in his berth with his leg enoased in a wooden box, subject to further injury by the shaking -up, due to the constant movement of the vessel. Honolulu was over two thousand miles away, but no attempt was made by the captain to make this near port of Tahiti although he had still before him a three weeks sail to. Hawaii. Papeete, on the. Island of Tahiti, a well known and settled. French colony, was 'within a few hours’ run of his vessel, where it was reasonably certain lie could have obtained surgical attention for this injured man. It is common knowledge that there are many medical men, and both civil and naval surgeons, at Papeete*, which is the commercial emporium for the products of the South Sea- Islands. (See Annuaire de Tahiti of 1892, a government publication). Yet in defiance of the established rules of tire maritime law and the commonest dictates of humanity, the captain of this vessel instead chooses to carry this maimed seaman on through these tropic seas for nearly three weeks longer deprived of the medical attention which he was entitled to have under the law, and which was practically within his reach. The fact that libellant did not complain or insist upon his rights in this particular, can make no difference as to what the duty of the captain of the ship was in the premise®. The Iroquois, 113 Fed. 964. Thirty-two days after the injury the ship, reached the port of Honolulu, where libellant was taken ashore and placed in the Hnited States Marine Division of the Queen’s Hospital where he has lain ever since suffering from this injury, and from the pain incident to two severe surgical operations upon the injured leg, which have kept him. confined in that hospital for nine months and a half, nearly five months of that time lying in bed, unable to walk or do anything to help himself. The leg is deformed and three inches shorter than the other leg, and libellant is permanently disabled thereby from following his chosen, vocation of a seaman, for he is deprived of the — 428 — power of free locomotion, walking only with great, difficulty and them only with the aid of a. cane. According to Dr. Cooper, a well known and reputable surgeon of Honolulu, introduced aa an expert witness, he is permanently injured, although there is a possibility that by undergoing still another surgical operation, the deformity of the leg might be decreased a little and the leg rendered more serviceable, but which operation would cost something like $500. But tire cause of the present condition of the leg, in the language of Dr. Cooper1, is due to “the hone’ being allowed to’ go without proper surgical treatment.” It seems reasonable to suppose that if the captain of this ship had done his duty and taken libellant into Papeete on the Island of Tahiti, he might have been saved the present hopeless condition of his leg, and have been able to have bad such treatment as would have enabled him to use the leg in his work as a sailor. In any event, he would have been spared some of the suffering and pain which he has endured for the past eleven months since the injury occurred. There is no contradiction of the fact that libellant was a strong, hardy seafaring man of twenty-three when he signed aboard this ship. He is now so far as his vocation goes, a physical wreck. He has mo education which would aid him in doing work other than manual, and he is now deprived of the power to do the latter, at least along the linas he had chosen and which brought him an adequate return. Pie was earning from twenty to thirty dollars a month as an able-bodied seaman; some twenty dollars a month while in the services of the vessel on which he was injured. I am forced to believe that bis present condition is due to the neglect and misconduct of the captain of the barkentine in failing to take libellant after be bad been wounded in the service of the ship-, to the nearest port for medical aid. Por this neglect, libellant lias an additional and different cause of action against the vessel, because a legal obligation to' him had arisen to afford him suitable care and nursing; In the absence of this, tbe ship is liable in consequential damages. The City of Alexandria, 17 Fed. 390. It is competent for this Court, under the prayer — 429 — for general relief in the libel, to afford him such damages. The Troy, 121 Fed. 901. There has been no laches on the part of libellant in bringing this suit. The vessel has been without this jurisdiction since the libellant was brought therein, and he has been in the hospital ever since. As soon as this vessel returned to this port, libellant instituted bis action, which is within duel time. The Slingsby, 116 Fed. 227. I do not think that the sum of $2500 is an unreasonable amount to allow libellant in full of all damages of every kind in view of all the circumstances of this case; and that sum is allowed him, together with costs of suit. Let judgement be entered accordingly.