249 F. 165 | N.D. Cal. | 1918
Libelant, a seaman and fisherman, shipped at San Francisco for a voyage to Alaska, there to work during the fishing season, and was injured on the return trip by falling from the lower topsail yard; the fall being due to the carrying away of a manrope to which he was clinging while at work handling the sail. The manrope was there for the sole purpose of affording to the seamen at w'ork on the yards a safe and convenient appliance by which to sustain and steady themselves. It was a circular loop of rope" affixed to the jackstay by means of seizing. The seizing gave way under the strain put upon it by libelant, and be fell to the deck, sus - taining grave and painful injuries.
The manrope being there for the very purpose for which it was used by libelant, it is not easy for the court to see upon what theory be is chargeable with negligence in having used it. The seaman is entitled to a safe appliance, and this one, at the time of the accident, was not safe. Libelant is not an unusually heavy man, and the manrope was not subjected to an unusual strain.
The vessel was an old one, and- had been lying in Oakland creek for seven or eight years before the voyage on which libelant was injured. Preparatory to this voyage the owner gave orders and furnished materials for the complete overhauling of her rigging, most of which was in bad condition. Whether these orders were carried out
The shipowner owes to the seaman a positive and nondelegable duty to set that the ship is seaworthy, and that her equipment is in condition for safe use, when she starts on her voyage; and while in the present case the owner furnished materials, and gave instructions that all the gear be overhauled before the vessel left here for die north, and also furnished materials for the proper repair of the gear during the voyage, yet it is not certain that his directions were obeyed as to this manrope before the ship sailed, and it is certain that nobody paid any attention to it afterwards. That it was unsafe is proved by the fact that it carried away. It was not the fault of libelant, as it was not his duty to see that the gear was in proper condition. It was the fault of the owner, if the vessel left here with the gear in poor condition, or of the first officer, if the gear became unsafe on the trip north, or while exposed to the weather during the fishing season.
If the fault were that of the owner, he is liable. If the fault were that of the first officer, he is still liable, in my judgment, because, under the Seamen’s Act, the first officer is not to be regarded as a fellow servant of the libelant, but as the agent of the owner, in so far as the security of the vessel’s gear is concerned.
The libelant’s injuries are not permanent, but he lost some time while unable to work, and was put to the expense of $240 in effecting a cure. He also suffered a great deal of pain. Bor all of these I think $1,200 a not unconscionable award. There is also' a claim for wages, which is admitted.
A decree will be entered for $391.55 for wages, and $1,200 for damages, together with costs. On this decree will .be credited $300 already received by libelant for wages since this action was begun.