67 F. 342 | U.S. Circuit Court for the District of Eastern New York | 1895
The principal question in this case is whether the defendants, as owners of the baric Rebecca Caruana, are liable to the plaintiff, a seaman, for injuries violently done to him when sick, by the master, on the high seas. The plaintiff brought suit in the courts of the state for the same injuries, and a judgment in his favor was reversed by the court of appeals as not maintainable against the defendants. Gabrielson v. Waydell, 135 N. Y. 1, 31 N. E. 969. A judgment on default was afterwards taken by the defendants in the court below for their costs. That judgment is set up and relied upon here as a bar to this suit, or a conclusive authority against it, with the statute of limitations of the state. That the judgment is not a conclusive bar is clear, for it was for costs only on default, and not upon the merits. Not being conclusive as a bar, as the cause of action did not accrue within the state, it can be nothing more than an authority of a high court entitled to great respect. As such it was based upon conclusions reached by a bare majority against a strong dissent, and in express repudiation of principles relating to agency and service held in somewhat analogous cases by the supreme court of the United States, which this court is, of course, bound to follow. Railway Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184. By the statutes of this state, actions for assault and battery are limited to two years. Code, § 384. That such statute applies to the courts of the United States sitting in the state seems to be well settled. Metcalf v. City of Watertown, 153 U. S. 671, 14 Sup. Ct. 947; Campbell v. Haverhill, 155 U. S. 610, 15 Sup. Ct. 217. So, if this was such an action, as it was not brought within two years, that statute would seem to be a bar. But the action may be considered as, and recovery has been had, rather for breach of duty of good treatment and care than for violation of the person, and as such it does not seem to be barred.
But the counsel for the defendants insists in argument that ship-masters are, beyond being the agents of the owners, officers of the law for maintaining discipline and securing safety, and that the personal treatment of the seamen by the master' on board is done in his office, and not in his agency. Many authorities, ancient and modem,—rather more of the former than of the latter,—are cited to show this official character of the master; and also that his conduct towards the seamen has always been regarded as within his office by the absence of any statement of liability of the owners on account of his agency for it. Cleirac, 8; Molloy, 322; Pardessus, 81; 1 Boul. P. Dr. Com. 383; Abb. Shipp. 163; 2 Pars. Shipp. 391; 1 Mande & P. Shipp. 127; MacL. Shipp. 121. Sunday v. Gordon, 1 Blatchf. & H. 574, Fed. Cas. No. 13,616, which was brought against the owners, and in which they were held not to be liable, for damages for wrongfully bringing the plaintiff off from the coast of Africa, and for wages afterwards, is cited as being nearest to this. In it Betts, J., said:
“If the libelant was tortiously Drought off from Africa, that was exclusively the act of the deceased master. There is no evidence that he was authorized to obtain by hiring, force, or stratagem negroes on the coast, for the purpose of bringing them to this country, or that the owner afterwards approved of the act; and the owner accordingly would not be chargeable for any act of trespass, false imprisonment, or kidnapping perpetrated by the master.”
This act of the master, from which the owners were so exonerated, was begun wholly outside of the ship, and was perpetrated upon one not connected with the ship, but who was wholly outside of the business of the ship, and of the master’s agency or