HOUGH, Circuit Judge
(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. *952The scope and effect of such contract is defined and regulated solely by the general maritime law, which is a different system of jurisprudence from the common law, and neither subordinated to nor controlled thereby. Cf. Southern Pacific Co. v. Jensen, 244 U.S. 205" court="SCOTUS" date_filed="1916-02-28" href="https://app.midpage.ai/document/southern-pacific-company-v-jensen-98958?utm_source=webapp" opinion_id="98958">244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086" court="SCOTUS" date_filed="1916-02-28" href="https://app.midpage.ai/document/southern-pacific-company-v-jensen-98958?utm_source=webapp" opinion_id="98958">61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900.
[1] Assuming that the master of this ship negligently omitted to place the handrail, and that there is a causal connection between such negligence and plaintiff’s injuries, he is entitled, not to “indemnity” for the consequences of that negligence, but to “maintenance and cure” — i. e., “care.” The Osceola, 189 U.S. 158" court="SCOTUS" date_filed="1903-03-02" href="https://app.midpage.ai/document/the-osceola-95840?utm_source=webapp" opinion_id="95840">189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760" court="SCOTUS" date_filed="1903-03-02" href="https://app.midpage.ai/document/the-osceola-95840?utm_source=webapp" opinion_id="95840">47 L. Ed. 760; The Bouker No. 2, 241 F. 831" court="2d Cir." date_filed="1917-03-20" href="https://app.midpage.ai/document/the-bouker-no-2-8803108?utm_source=webapp" opinion_id="8803108">241 Fed. 831, 154 C. C. A. 533. This is the result of the maritime law, and that this action was brought on the common-law side of the court' below makes no difference. Plaintiff chose a common-law remedy, hut the choice neither changed the máritime rights of the parties, nor created a new right. Chelentis v. Luckenbach, etc., Co., 247 U.S. 372" court="SCOTUS" date_filed="1918-06-03" href="https://app.midpage.ai/document/chelentis-v-luckenbach-steamship-co-99203?utm_source=webapp" opinion_id="99203">247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171" court="SCOTUS" date_filed="1918-06-03" href="https://app.midpage.ai/document/chelentis-v-luckenbach-steamship-co-99203?utm_source=webapp" opinion_id="99203">62 L. Ed. 1171.
[2] But since by the law maritime a seaman is entitled to “indemnity” (which may be taken as equivalent to “damages”') for injuries received through the “unseaworthiness of the ship” (The Osceola, supra, 189 U. S. at page 175, 23 Sup. Ct. 483, 47 L. Ed. 760" court="SCOTUS" date_filed="1903-03-02" href="https://app.midpage.ai/document/the-osceola-95840?utm_source=webapp" opinion_id="95840">47 L. Ed. 760), it is now urgqd that section 20, Seaman’s Act March 4, 1915, c. 153, 38 Stat. 1185 (Comp. St. § 8337a), requires a holding that it was at least for the jury to say whether this ship was not unseaworthy, as a result of the negligent absence of handrails; for such negligence being that of an officer, who cannot (under section 20) be regarded as plaintiff’s fellow servant, the case is the same as if defendant owner had personally made the deck unsafe for plaintiff’s lawful purposes.
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" court="SCOTUS" date_filed="1828-02-12" href="https://app.midpage.ai/document/mlanahan-v-the-universal-insurance-company-85573?utm_source=webapp" opinion_id="85573">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 *953issue, which is whether section 20 has changed or sought to change the general maritime law. That it does not was decided in the Che-lentis Casé.
Judgment affirmed, with costs.