40 F. 902 | N.D. Cal. | 1887
I am clearly of opinion that the proofs in this case do not disclose such negligence on the part of the master as would render the employ'd’ responsible for injuries to an employe caused by the negligence of a co-employe, either on general principles or by the law of this state. To hold otherwise would be to make the ship-owner an insurer of every seaman against all accidents which might occur in the course of the voyage, which could not be shown to have been the result of his own negligence, or the irresistible violence of the elements.
The claims for wages to the end of the voyage, and for expenses at the German Hospital, must, I think, both be disallowed. A seaman injured in the ship’s service is undoubtedly entitled to be cared for at the ship’s expense, anrl to his wages until the end of the voyage. But he cannot claim wages to the end of the voyage when he has obtained his discharge at his own solicitation, and against the advice and even the expostulations of the master. The master urged him to remain on board, offering to provide for him medical advice and assistance, and to fako him back to Ban Francisco. Had the libelant assented, lie would, undoubtedly, have been entitled to wages up to the time of his arrival; but he insisted upon receiving his discharge, and going to Port Townsend Marine Hospital. The master thereupon paid him all the wages due him, gave him a certificate to enable him to obtain admission to the hospital, and paid his fare to Port Townsend. He remained at the hospital, under treatment, some 15 days, when he was discharged, at his own request. I know ox no case where a disabled seaman, discharged in an American port, and at his own urgent solicitation, in order that he might be admitted to a United States marine hospital, has been allowed subsequent wages. In the case of The W. L. White, 25 Fed. Rep. 503, it is doubted by the learned judge whether a discharge of a disabled seaman, in a foreign port, by the United States consul, at the request of and on the payment of one month’s extra wages by the master, would, under the act of Juno 26, 1884, e. 121, § 3, known as the “Dingly Act,” be valid; but he admits that, if valid, it “would bar all claims for subsequent wages.” And an alleged consent given by a seaman seriously sick or injured, and confined ashore, was held by Judge Loweli, to bo inoperative. Callon v. Williams, 2 Low. 1. In this case it was also held that a consul at a foreign port has no right to discharge a seaman for disability arising from wounds received in the ship's service; “but the court observes that a fair contract, with a full understanding arrived at, might be upheld, though the man was more or less ill,” even though the discharge was in a foreign port. But that a discharge in ail American port, insisted on by the man, in order that he might go to a United States marine hospital, and reluctantly granted by the master, is a bar to a claim for wages until the end of the voyage, cannot, I think, be doubted.