262 F. 951 | 2d Cir. | 1919
(after stating the facts as above). If defendant, as master, had been constructing a house, instead of operating a ship, and plaintiff (the servant) had fallen from a defective scaffold, instead of from an unguarded deck, the resulting injury would have conferred both a common-law right and a common-law remedy, and such right would (or might) have resulted from breach of a contract recognized, if not created, by the common law.
At the time of this accident, however, plaintiff’s relation to defendant resulted from a maritime contract, viz. his hiring as a seaman.
The argument fails both on authority and reason, for (1) it is opposed to the ground of decision in Chelentis v. Euckenbach, etc., Co., supra; and (2) it involves a misuse of the word “seaworthiness.”
(1) Chelentis claimed to have been injured by obeying a negligent order; this plaintiff alleges injury because an order was negligently omitted. If (as held) section 20 had no application to Chelentis, it has none here, because it is still immaterial “whether the master and seaman are fellow servants or not”;, maintenance and care remain the full limit of the controlling maritime law.
(2) Every allegation of fact made by plaintiff has been assumed, yet we hold that no jury could on such facts declare the ship unsea-worthy.
Seaworthiness is a relative term; a vessel may have that quality in port, and yet be wholly unfit for rough water (McLanahan v. Universal, etc., Co., 1 Pet. 170, 7 L. Ed. 98); and to say that this ship was unseaworthy because she had no handrail up, while lying alongside a wharf discharging cargo, is merely untrue.
The contention confounds seaworthiness and safety, if not seaworthiness and comfort; and the facts presented require only reference to Hedley v. Pinkney, [1894] App. Cas. 222, and Olson v. Navigation Co., 104 Fed. 574, 44 C. C. A. 51.
Presenting this point before a jury somewhat beclouds the. final
Judgment affirmed, with costs.