21 Me. 402 | Me. | 1842
The opinion of the Court was drawn up by
—The sickness may be considered as occasioned by the climate without the fault of the seaman or of the officers oí (he vessel. And in such a case, by the maritime law, the expenses of the cure are a charge upon the vessel. The act of Congress, c. 29, 4 8, requires, that ships or vessels of a certain description should bo provided with a chest of medicines, accompanied by proper professional directions for administering the same ; and in default thereof that the master shall pay for all advice, medicine, or attendance of physicians.
And although learned judges have expressed their doubts, whether the act ought to have received such a construction, their reasons have never been deemed sufficient to authorize a change ; and this has been admitted to be the general and well established construction, subject to certain exceptions. And if such were not the original intention, there has been ample time for legislative interposition to effect a change and correct the error. The fact, that there has been no such interference in this commercial country for so long a course of years, tends strongly to establish the accuracy of the construction made by the judicial tribunals. The case of Harden v. Gordon, 2 Mason, 541, decided, that the vessel is liable, although provided with a chest of medicines, “ for board, lodging and nursing, while the sick seaman is on shore.” In the case of the Brig George, 1 Sum, 151, where the mate being sick went on shore for his own relief, for the safety of the crew, and for the interest of all concerned, it was decided, that all the expenses of the cure, including medical advice and attendance, were a charge upon the vessel, although she was provided with a chest of medicines as the act requires. In the case of the Brig Forest, Ware’s R. 420, it was considered, that the act could exempt the owners from the charge for medical advice and attendance only, “ when the seaman can have the benefit of the medicine administered under the printed directions for its use by the master or some person fit to be entrusted with so delicate a duty.” And it was accordingly decided in that case, when the master, mate and four seamen were sick and unable to administer the medicines, that the
There is nothing in this case to exclude it from the operation of the general rule, unless it can be found in the nature of the disease, the yellow fever; <jr in the sickness and absence of the master; or in the desire of the seaman to be removed from the vessel. Judge Peters, in a note, 1 Peters’ Ad. Dec. 258, says; “'where one of a crew is seized with an infectious disease, he should be removed from the rest and sent on shore at the ship’s expense for the safety of the whole and the advantage of the owner, who must count on extra disbursements, if he will trade to ports and places liable to such casualties.” This remark formed no part of an opinion in a decided case; nor can it be considered as a statement of any principle of law. It is but an expression of his opinion respecting the duty of the master under the circumstances stated. And the reason given by him for requiring it, is not the cure of the sick seaman, but the preservation of the health of the rest of the crew, and the advantage of the owners. It will hardly do for judicial tribunals to take upon themselves to establish one invariable rule for the treatment of a sick seaman
The desire of the seaman to be removed on shore cannot change the rights or relations of the parties. His judgment in such cases must necessarily be subjected to that of those
Nor can the sickness and absence of the master, on shore, make a difference in the case. The law devolves his duties, in such case, upon the mate, who, it presumes, is able to perform them properly. And there is no evidence in this case, that he did not. It is objected, that the services were not performed at the request of the plaintiff, and that payment cannot therefore be exacted of him. It appears to have been a proper case for medical advice, and the physician appears to have been called, because the danger was such, that the law's of the place, as well as the feelings of humanity, required, that he should be. And under such circumstances, the law will imply a promise from him, who has received the benefit of the services, to pay for them. In the case of Holmes v. Hutchinson, the physician was called by the master, and the seaman was considered as liable to pay for his services.
There is nothing therefore in this case, which exempts it from the operation of the general rule of law, which, as modified by the act of Congress, reliev.es the owners, and charges such expenses to the seaman.
It is agreed, that by the law's of the place the physicians’ bills must be paid by the vessel, before she can leave the port. The amount therefore must be considered as paid for him from the vessel during the voyage, and therefore liable to bo deducted from his wages. The vessel is regarded by the maritime law as his debtor, and the account is to be adjusted between him and her accordingly, by considering what she has paid for his use, to be paid in extinguishment, of his claims.
Judgment for the defendant.