Keep v. White

195 A.D. 736 | N.Y. App. Div. | 1921

Putnam, J.:

As this is a cause of tort (in which the shipping articles are referred to by way of inducement), which occurred at Bermuda, defendants rely on the maritime law (Chelentis v. Luckenbach Steamship Co., 247 U. S. 372), which raises the point whether the tort set forth -is remediable by the maritime law. Of this I have no doubt. The wrong charged is a plain violation of a fundamental duty of the shipmaster toward his crew. (Boston v. Ocean Steamship Co. of Savannah, 197 Mass. 561.) It may be likened to the duty to go into port for medical assistance for an injured seaman, for breach of which the master of the vessel may be answerable in damages. (The Iroquois, 194 U. S. 240; Olsen v. The Scotland, 42 Fed. Rep. 925; The City of Carlisle, 39 id. 807.) The admiralty doctrine that limits recovery to “ maintenance and cure ” is not applicable to a breach of the shipmaster’s personal obligation. Such liability is enforcible against the defendants in the courts of this State. (Scarff v. Metcalf, 107 N. Y. 211 ; Leone v. Booth Steamship Co., Ltd., 189 App. Div. 185.) In Chelentis v. Luckenbach Steamship Co. (supra) the seaman sued at common law for full indemnity with no claim for maintenance or cure. A verdict fqr defendant was held rightly directed because plaintiff’s disclaimer of maintenance and cure left no ground of liability. Johnson v. Standard Transportation Co. (188 App. Div. 934) was also for negligence at common law, and was so tried, with no suggestion of unpaid wages or other failure of maritime duty. On such a record there was no basis for applying the maritime law. It was not intended to declare in that decision that in a proper case the State court could not administer the maritime law. The objection here of joinder of the shipowner, which might be good in a suit for wages, does not apply in tort.

I advise, therefore, that the interlocutory judgment be affirmed, with costs, but with leave to answer within twenty days after service of the order herein.

Mills, Rich, Blackmar and Kelly, JJ., concur.

Interlocutory judgment affirmed, with costs, but with leave to answer within twenty days after service of the order herein.