Kalleck v. Deering
37 N.E. 450
Mass.
1894
Check Treatment
Holmes, J.

This is аn action of tort for personal injuries suffered on board a coasting vessel while in harbor, through the breaking оf a triangle on which the plaintiff was sitting and scraping a mast. As the case comes before us, we must take it that the defendants did their duty in furnishing materials for the construction of the triangle, that the mate was in control of the vessel аt the time, and that the cause of the plaintiff’s injury was some negligence on the mate’s part in constructing the triаngle and in ordering the plaintiff to use it. The question is whether the defendants are answerable for this conduct of the mate.

By the common law as understood in this State, the work of construction was not one of the matters which thе defendants were bound at their peril to see done with reasonable care, and therefore, if thosе engaged upon it were fellow servants in their general standing and occupation, the plaintiff took the risk of *470their negligence. They were not removed from the class of fellow servants for the time being ‍‌‌​‌‌​‌‌​​‌‌​‌​​​​​‌‌‌‌​​‌​‌​​‌‌‌​​​​‌​‌​​‌​​​‌‌‍by the nature of their occupation, to adopt the mode of expression which has been used. Johnson v. Boston Tow-Boat Co. 135 Mass. 209. Moynihan v. Hills Co. 146 Mass. 586. Allen v. G. W. & F. Smith Iron Co. 160 Mass. 557. But if the work had been donе by the defendants in person, and they had done it negligently, they would have been liable, and it is argued that they are еqually liable when the work is done by the- master of the vessel, or by one who for the time being stands in his place. It is said that the master is not a fellow servant with the seamen, and therefore is not within the rule as to the risks assumed by the plaintiff, but thаt he is nevertheless an agent and representative of the owners, and that his negligence is their negligence. Even if it be said, as it has been said in some cases, that masters are not liable to servants for the negligence of others except when the law on grounds of policy imposes a personal duty on them to see certain precautions taken or reasonable care used; and if it be admitted therefore that the defendants could not be liable for negligence in the construction of the triangle on the part of the master, whether a servant or not, any more than when the same work was done by. the seamen; (Quinn v. New Jersey Lighterage Co. 23 Fed. Rep. 363; The Queen, 40 Fed. Rep. 694, 696 ; Loughlin v. State, 105 N. Y. 159, 162; Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, 385;) still, ordering the plaintiff to usе the faulty triangle was an act belonging to the superior officer as such, and it might be that as to that a different rulе would apply.

Looking at the reason given for the exception to the general liability of masters for sеrvants, the last suggestion cannot prevail. If the sailor takes the risk of a negligent injury to his person from a fellow sаilor, there is equal reason ‍‌‌​‌‌​‌‌​​‌‌​‌​​​​​‌‌‌‌​​‌​‌​​‌‌‌​​​​‌​‌​​‌​​​‌‌‍to say that he takes the risk of a negligent command. A command is a transitory act which the employer has no chance to supervise. It is not like a permanent condition of land or machinery, or the abiding incompetence of an employee. See Flynn v. Campbell, 160 Mass. 128, 130. If the defendants have been guilty оf no personal negligence, and the plaintiff does take the risk of the negligence of some persons with whom his work will bring him into contact, the question whether the negligence of one of those *471persons is within or outside оf the risks assumed is not a matter of names or dignities. That is too well settled to need the citation of cases. Moody v. Hamilton Manuf. Co. 159 Mass. 70. The question is what he must be taken to have contemplated when he went into the employment. The chances of negligence on the part of a superior employed in the common business are ‍‌‌​‌‌​‌‌​​‌‌​‌​​​​​‌‌‌‌​​‌​‌​​‌‌‌​​​​‌​‌​​‌​​​‌‌‍as obvious as in thе case of one of a lower grade, and therefore when the duty is not personal to the employеr the same rule applies, whatever the degree of the negligent employee. Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368, 384. These considerаtions apply, and have been applied by common law courts, to the captain of a vessel, and it has been said that he is a fellow servant within the meaning of the rule. Hedley v. Pinkney & Sons Steamship Co. [1892] 1 Q. B. 58. Loughlin v. State, 105 N. Y. 159. So in this Commonwealth as to a mate. Benson v. Goodwin, 147 Mass. 237. Without considering what may be the best mode of expressing it, we agree with the result of these cases.

But it is argued that a different doctrine obtains in the admiralty, and that we ought to follow the law which would be administered by the courts especially constituted for the affairs ‍‌‌​‌‌​‌‌​​‌‌​‌​​​​​‌‌‌‌​​‌​‌​​‌‌‌​​​​‌​‌​​‌​​​‌‌‍of seamen. For this argument it does not matter precisely where the vessel was. If the accident happenеd within the body of the county the admiralty jurisdiction would not be excluded; Waring v. Clarke, 5 How. 441; The Commerce, 1 Black, 574; and if upon the high seas, that of the common law is not to be denied. Percival v. Hickey, 18 Johns. 257. Wilson v. Mackenzie, 7 Hill, (N. Y.) 95, 97.

The case most relied on is The A. Heaton, 43 Fed. Rep. 592, followed by The Frank & Willie, 45 Fed. Rep. 494, and The Julia Fowler, 49 Fed. Rep. 277. Compare Morse v. Slue, 1 Vent. 238; S. C. 3 Keb. 135, 1 Molloy de Jure Marit. book 2, c. 2, § 2. If the American cases meant that the admiralty сourts had worked out the liability of the ship for the acts of the captain from their own peculiar principles, it might be necessary to inquire whether the personal liability of the owner necessarily followed from the same premises, and if it did, why the common law should yield to the admiralty rather than the admiralty to the common law. But it hardly is tо be expected that different *472views of the substantive law should be enforced by ‍‌‌​‌‌​‌‌​​‌‌​‌​​​​​‌‌‌‌​​‌​‌​​‌‌‌​​​​‌​‌​​‌​​​‌‌‍the same judges sitting in different courts. In The A. Heaton, Mr. Justice Gray did not declare a doctrine peculiar to the admiralty, he merely deferred to a decision upon the common law from which he himself had dissented, which is inconsistent with the cases in this Commonwealth, and which has been explained by a later decision of the court which rendered it. Chicago, Milwaukee, & St. Paul Railway v. Ross, 112 U. S. 377. See Baltimore & Ohio Railroad v. Baugh, 149 U. S. 368. Under these eirdumstances the Circuit Court сases do not seem to us a sufficient reason for departing from the common law because the aсcident happened on board ship. Moreover, it is very plain that we cannot adopt the admiralty law as a whole. We cannot divide the damages when the plaintiff has been guilty of contributory negligence, as was done in The Julia Fowler. The Max Morris, 137 U. S. 1. See Dowell v. General Steam Navigation Co. 5 El. & Bl. 195, 206. Verdict set aside.