John A. Roebling's Sons Co. of New York v. Erickson, 261 F. 986

John A. Roebling's Sons Co. of New York v. Erickson

261 F. 986

2d Cir.

1919

Check Treatment

WARD, Circuit Judge.

Thе plaintiff, an able seaman on the schooner Florence Thurlow, at Ponce, Porto Rico, while taking out the cargo fall from the snatch block, got his hand caught between the fall and the pulley, and permanently injurеd. The vessel was discharging heavy sawed logs 30 to 40 feet long from the lower hold to the ’tween-decks and through a squаre port in the bow to a lighter.

The plaintiff’s story is that the discharging had been going on for some days in the usual and safе method, which need not be particularly described, when the master for the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sake of speed adoptеd a new and dangerous one. He directed the men in the hold to put a stick under the after end of the logs, to hold them up while the fall was being disen*987gaged from the snatch block, and gave them a defective one, which brokе, causing the after end of the log to drop and bring a sudden strain on the fall, which caused the plaintiff’s left hand to bе caught in the snatch block as above stated. The stick was shipped with a multitude of others like it as dunnage for the logs, and not for any other purpose.

The court required the plaintiff to elect at the trial whether he wоuld stand upon his right to wages and expenses of maintenance and cure to the end of the voyage, or to stand upon his right to indemnity. He elected the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍latter, on the ground that the master, as vice principal of the owners, ordered the dangerous method of discharging the logs, and that the vessel was unseaworthy because of the defective and unsafe stick selected by him.

The court, over the defendant’s exception, denied its motiоn for the direction of a verdict in its favor, and left to the jury the question whether the master adopted an improper method of discharging the cargo, and whether the stick used was defective, instructing them that, if they so found, the owners were liable, and that, while the plaintiff’s contributory negligence, if any, would not prevent him from recovering they should consider such negligence as one of the elements in fixing the amount of his indemnity.

[1] Cases concerning the rights of passengers or of strangers to recover for personal injury on board ship are wholly inapplicаble ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to seamen. The relation of master and seaman is peculiar, and is fully stated by the Supreme Court in The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, and Chelentis v. Luckenbach Steamship Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171. A seaman injured without willful misconduct is entitled to wages and expenses of maintenance and cure to the end of the voyage, whether himself guilty of negligence or not. His freedom from liability for his own negligence is nоt a question of remedy at all, but an essential part of the status of the seaman and of the relation of master and seaman. Upon the foregoing general doctrine has been ingrafted, purely out of tenderness fоr the seaman and upon no principle, an exception that, where his injuries are due to the failure of the owmers to furnish and maintain a seaworthy vessel with proper appliances, the seaman may recover full indemnity. 'fhe negligence of the seaman in such case does not prevent his recovery, but may be takеn into consideration, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as the court below held, in determining the extent of indemnity which he should receive.

[2] In this casе we must take the plaintiff’s story to be true. So far as the unusual and dangerous method of discharging the cargo is concerned that was an improvident order of the master, for which the owmers are not liable (Chelentis v. Luckenbаch S. S. Co., supra); and so far as the use of the stick is concerned, we also think they are not liable. It was furnished fоr dunnage of the cargo, and not to be used as the master did. The owners are liable to indemnity when the master fаils to keep the ship’s appliances in order, which may be an example of what Mr. Justice McReynolds hаd in mind in the Chelentis Case when he said at page 384 of 247 U. S. (38 Sup. Ct. 504, 62 L. Ed. 1171):

*988“Section 20 of the Seaman’s Act [Comp. St. § 8337a] declarеs 'seamen having command shall not be held to be fellow servants with those under their authority,’ and full effect must be given this whеnever the relationship between such parties becomes important. But the maritime law imposes upоn a ship owner liability to a member of the crew injured at sea by reason of another member’s negligence without regard ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to their relationship; it was of no consequence therefore to petitioner whether or not the alleged negligent order came from a fellow servant; the statute is irrelevant. The language of the section discloses no intention to impose upon shipowners the same measure of liability for injuries sufferеd by the crew while at sea as the common law prescribes for employers in respect of their employés on shore.” •

There would, however, be little security for careful owners if, after furnishing a seaworthy ship and proper appliances, they were still liable ¡for the act of the master in not using the proper appliances furnished, or in using them for purposes for which they were not furnished.

[3] The plaintiff should not have been required to elect whether to stand upon his claim for indemnity, or upon his right to wages and expenses of cure and maintenance to the end of the voyage. To the latter the seaman is entitled under any and all circumstancеs, except his own willful misconduct. If he recover indemnity, it will be included; but if he claim indemnity, and fail to get it, he is not for that rеason to be deprived of his right to wages and expenses of cure and maintenance to the end of the voyage. On the case as it stood the court" should have granted the defendant’s motion for a verdict in its favor.

The judgment is reversed, and a new trial ordered.