| U.S. Circuit Court for the District of Southern New York | May 13, 1909
This is an action by a servant against his master to recover damages arising from the alleged failure of the latter to use reasonable care to furnish the former a safe place in which to work. It is not alleged that the master contracted to furnish a safe place. Such a contract would be most extraordinary. It is alleged that the defendant^failed in the performance of its duty as master to furnish a safe place. When the contract of employment was entered into, the law governing the relation of master and servant imposed that obligation. The duty arose out of the relation created by the contract, but it was a duty imposed by law. Failure to fulfill that obligation was a failure in the performance of a duty, and not a violation of contract. Failure to do a duty is negligence; and an action for damages for failure to perform a duty is an action of negligence — an action founded in tort, and not in contract.
The action being founded in tort, the liability of the defendant must be determined by the law of the place where the accident causing the damage sued for took place. This accident occurred upon the high seas, upon a German vessel, carrying the German flag. The law of Germany, therefore, governs the case. Consequently the German statute, substituting fixed and certain liability for injuries in place of responsibility for negligence, and compliance therewith, constitute a good defense to this action.
The demurrer to the defendant’s separate defense is overruled, with costs.