279 F. 752 | D. Mass. | 1922
This is a libel by the chief steward and two cooks on the steamship Lake Forkville to recover damages for assault and imprisonment by the master, and for wages and personal effects. I find the facts to be as follows:
The Lake Forkville was owned by the United States Shipping Board, Emergency Fleet Corporation, and was operated by the Mallory Lines. She left Norfolk about October 10,» 1919, bound for the Azores and England. The incidents which form the basis of this suit occurred after her arrival at Ponta Delgarda, Azores, which was reached on October 31st. The chief steward, Latty, went on shore that day. When
The captain thereupon gave over his attempt to put Tatty into irons and sent for the local police. When they arrived, Tatty was quiet in his room. He refused to open the door, and it was broken in. He and Benjamin, who are both Haitians, talked to the local police, with whom, as they did not understand English, the captain and officers were unable to communicate by language; the result being that the local pol.ce refused to arrest Tatty. Benjamin told them that, if they attempted to do so, the other colored members of the crew would interfere and prevent it. Tatty was boisterous, loudly accusing the captain of being e grafter, and intending that the crew should hear him.
After the local police had left, the captain sent to the United States warship Arethusa, which was lying near by, for assistance. A boat’s crew was promptly sent on board in charge of two officers. At the captain’s request they arrested the three libelants. Tatty resisted and was roughly handled. The three were taken ashore in the navy boat, the captain and supercargo going with them. On the way Tatty jumped up and made trouble, and he was finally hit on the head with a police dub by one of the bluejackets and knocked senseless. He was taken to the lockup and thence to the hospital, where he remained under treatment for about two weeks, during which time the steamer sailed without him. Just before leaving, the captain came to the hospital, and wanted to take Tatty on board; 'but the hospital authorities considered him not sufficiently recovered to go.
The Take Eorkville sailed five or six days after the arrests. Just before she left, Benjamin and Vincent were brought on board from ihe lockup. They were placed in irons and confined in a room in the ::orepeak of the vessel, which had been occupied by the carpenter. Their irons were taken off later that day and were not again replaced. They were kept in confinement until the ship reached Avonmouth, England, a period of about ten days. Then Vincent, on his agreeing to go ■:o work, was let out. Benjamin complained that he was ill from the effects of cold and poor food during his confinement. He was paid off and discharged, at his request, before the American consul in Cardiff, md went to the hospital there, where he remained five days. He later returned' to this country in another vessel. Vincent returned on the
Up to this point, while it cannot be said that there is agreement as to the facts, they seem to me pretty clear on the evidence submitted.
Latty further testified that the captain, chief officer, supercargo, and second assistant engineer were engaged in a conspiracy to defraud the owners or operators of the vessel; that he was asked to become a party to it and refused; that he was ill treated and prosecuted for that reason, in-order to discredit his testimony against them; that Benjamin also knew about the conspiracy, and on that account was ill treated and left at Cardiff; and that Vincent was brought home in order to separate the three witnesses, and thus prevent any attempt to bring charges against the captain and officers. The only hearing of the alleged conspiracy on the present case is that it is claimed to have furnished a motive for the captain to ill treat Latty and take action against him. But what the captain did is plain enough; and it seems to me unnecessary to decide whether such a conspiracy existed. The captain and officers deny Latty’s testimony on this point in toto. The separation of the three men, on which the libelants much rely as evidence of a sinister purpose on the captain’s part, does not, fairly considered, warrant that interpretation. The captain wished to take Latty along from Ponta Delgarda, and was prevented from doing so by the hospital authorities, and Benjamin was discharged at Cardiff at his own request.
“I am aware that it has been doubted, by very able judges, whether the law does authorize such an imprisonment on shore in a foreign port. My opinion, however, upon the most mature deliberation, is that it does authorize it; but I am also of opinion that the authority arises, and can be exorcised only in cases of flagrant offenses, where there is a positive necessity of removal of the party offending from the ship to some place .of safety on shore. The authority is of a very delicate and summary nature, and is justified only by the same necessities which clothe private persons in other cases with extraordinary powers. * * * The master must have (as I think) a right, under such circumstances, to remove them from the ship, and to imprison them, as well for punishment as safety, if he does not choose (as he may) to dismiss them altogether from the employment. But in such a case the*756 Imprisonment must be with the intent to take them again on board the ship • fcr the voyage, or to bring them home, and not with the intent merely to punish them, and at the same time to dissolve their connection with the ship. 'Tie master can punish only to promote good discipline, and compel obedience to lawful orders on board of the ship. He is hot clothed with judicial autlority to sentence seamen to punishment for their Offenses.”
See, also, The Nimrod, Fed. Cas. No. 10,267, 1 Ware, 1; Jay v. Almy, Fed. Cas. No. 7,236, 1 Woodb. & M. 262 (Cir. Ct. Mass.); Johnson v. Ship Coriolanus, Crabbe, 239, Fed. Cas. No. 7,380; Buddington v Smith, 13 Conn. 334, 33 Am. Dec. 407; The William Harris, Fed. Cas. No. 17,695, 1 Ware, 373. In the last case Judge Ware said:
“I have held that in extreme cases, where a man proves incorrigibly disobedient and refractory, and where it is necessary, for the purpose of preserving order and discipline on board the vessel, that the master was justifi 3d in calling in the aid of the police, and sending a seaman to prison. But , it is not a punishment to be resorted to, except in grave cases, and not until •o'her means have been tried to bring a man to his duty. Under the cir-c imstances of the present case, I think it was clearly unjustifiable. I decree >the wages to be paid without deduction.” 1 Ware, 385.
In my opinion, Latty has a just grievance and is entitled to damages for the unreasonable and excessive force used in removing him from the steamer. While exact evidence as to his injuries is lacking, I infer that not much harm was done to him at that time. The navy boat was in charge of her officers. Whether the bluejacket who hit Latty on the head on the trip to shore did so under orders, or on his own motion, is not clear. Capt. Forbes had not command in that boat, and nothing to do with that occurrence, which was when the most severe injury was inflicted. After Latty reached shore, he was properly cared for. Considering that the situation which justified Latty’s removal from the vessel wa-s brought about by the captain’s bád judgment, although that, of course, did not excuse Latty’s resistance, nor the other men’s interference, I shall allow Latty $100 damages for the excessive and unreasonable force used on him.
As to Vincent: On the evidence, as it stands, Vincent appears to have taken a very minor part in the fracas. He stood by, ready to assist Hatty and Benjamin, if an actual fight developed. The captain evidently-considered him dangerous, and the fact that Vincent refused to apologize and go to work until the ship got to Avonmouth strongly corroborates the captain’s views. What has been said with reference to-Benjamin applies also to Vincent. There was not the least occasion for hin to interfere in any way. Having done so, he must stand the con-' sequences.
Decrees may he entered dismissing the libel as to Benjamin and Vincent, and referring the case to an assessor to state Hatty’s damages.