211 F. 224 | E.D. Pa. | 1914
On November 21, 1910, the claimant, William Dougherty, was in the employ of the ThompsonRockhart Company as the master of a barge or scow, and in the course of his service suffered an injury on that day. Asserting the negligence of the company, he brought suit in the common pleas of Philadelphia county, but proceedings for limitation of liability were afterwards begun in the district court, and the dispute was thereby transferred to the federal tribunal. No other claimant or creditor has appeared. Several preliminary steps have been taken, but they need not be referred to; it is enough to say now that the parties and their witnesses ap
The first question in order of importance is whether the company is chargeable with negligence. The facts are as follows:
The Thompson-Lockhart Company is a Pennsylvania corporation, and none of its officers was directly connected with the claimant’s injury. The tug “J. McAteer” and the scow were both owned by the company, and were engaged as a tow in carrying rubbish down the -Schuylkill river for the city of Philadelphia. Both vessels were properly manned and equipped. Dougherty, who was the master of the scow and had been so employed for about three weeks, was the only person on board that vessel; no further help being usual or necessary. Toward noon on the morning in question the tug and the loaded scow were proceeding down the river bound for a point on the eastern shore near Penrose Ferry Bridge; the tide being ebb and the day fair. The scow was lashed to the port side of the tug in the usual manner, being held in place by lines at the bow and the stern, and moved, by a running or towing line that was made fast more nearly amidships on both vessels. All the lines were provided with the usual eye or loop at one end. The eyes of the bow and the stern lines were laid around cleats on the deck of the scow, and the loose ends were made fast upon the deck of the tug. ' The eye of the running line was similarly adjusted, but upon the deck of the tug, and the loose end was fastened around a cleat on the deck of the scow. When the lines were not in use, the bow and the stern lines were hauled in upon the tug, and the running line was hauled in upon the scow.
The claimant sought to establish the unrestricted liability of the company by attempting to prove that the master of the tug was a man of intemperate habits, and that the company continued to employ him with knowledge of such habits. Moreover, he charged and attempted to prove that the master and crew of the tug were under the influence of liquor on the morning in question, and this fact, of course, would have had much pertinence. In my opinion, however, neither attempt was successful. No doubt the master uses liquor occasionally—and so used it at that time—but the evidence did not establish either his intemperate habits in general or the use of liquor on November 21st, and nothing whatever was proved that would prevent the company from taking advantage of the acts of Congress limiting the liability of shipowners. But of course, if the claimant failed to establish the company’s negligence—and in my opinion he did so fail—the question of limitation is no longer of importance.
“4. Tliat the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, bnt is entitled to maintenance and cure, whether the injuries were received by negligence or accident.”
“1. That the vessel and her owners are liable, in case a seaman falls sick or is wounded in tbe service of tbe ship, to tbe extent of bis maintenance and cure, and to bis wages, at least so long as tbe voyage is continued.”
See, also, the recent case in this circuit of The Mars, 79 C. C. A. 435, 149 Fed. 729.
Under the evidence, I think an allowance of $500 and interest should be made. The claimant was in the hospital for three months, where he was maintained and cared for free’ of charge. But he could not work for about nine months longer, and he has spent money for medicine, crutchos, and an artificial foot (once renewed), and still owes for boarding during the time he was under disability. A decree may therefore be entered for $500, with interest from November 21, 1911, and costs.