| S.D.N.Y. | Nov 15, 1848
It is plain that the ship is liable for the charges incurred in the medical treatment' of the libellant on shore, and expenses of attendance, if his •case was one which the ship was bound to provide for.
The point taken for the respondents is. that the libellant was wounded in a personal brawl with a sub-otiicer of the ship, and that they are not answerable for the expenses of ihe cure of his hurt received in that manner.
The testimony proves the injury to have been received by the libellant on board the ship, from blows inflicted by tin1 mate in punishing him for alleged misconduct and contumacy. The instrument employed was every way an improper and unsafe one to use in correcting a sailor, if he rightly deserved punishment. The mate, however, plainly considered himself in the exercise of iiis authority over the libellant as an officer of the vessel, for he first reprimanded him for absence from the vessel, and then struck him with a belaying-pin because of impertinent or disrespectful language in reply. There was at the time no quarrel between them, and no assault upon the mate was «attempted on the part of the libellant.
The version given by the mate of the transaction is contradicted by the bystanders, and ought, under the circumstances, to have little weight without corroboration. The excess of punishment given by an officer in the exercise of his authority on board, or the use of an improper instrument to inflict it, cannot change the nature of the sailor’s rights in respect to the ship or her owners. Had the seaman sickened from the infliction of a punishment given by an officer in the ordinary manner on ship-board, and which proved to be beyond his strength or state of health to bear, there can hardly be a question that he would be entitled to be cured of such sickness at the expense of the ship. A sailor must, in judgment of law, be deemed in the service of the ship, whilst under the power and authority of its officers; and-an injury received by him in executing an improper order, or inflicted on him directly, by the wrongful violence of the officer, in the exercise of his rightful power and command over him as an officer, must equally entitle him to this privilege secured him by the law maritime.
The ancient sea ordinances provided, that mariners falling sick during the voyage, or hurt in the performance of their duty, should be cured at the expense of the ship. Curt. Mercli. Seam. 100, note 2.
The sendee of the ship is by no means limited to acts done for the benefit of the ship, or in the actual performance of seaman’s duty on board. Reed v. Canfield [Case No. 11,041], was the case of a sailor who drifted to sea, and was badly frozen, in a boat, in port, after the voyage had terminated. The whole boat’s company had gone on shore wrongfully, and had also disobeyed orders in overstaying the time limited them, and that misconduct probably led to the injury; as a sudden change of weather, occurring subsequent to the termination of the leave of absence, prevented the boat reaching the ship, and caused the exposure which resulted in the libellant’s being frozen and disabled. Still the court held that he was entitled to charge the ship with his cure.
If the present ease presents a point not clearly included within any adjudged case, the principle, in my judgment, is common with that upon which the ship is ordinarily held liable for the cure of seamen; and I am in no wise disposed to weigh a balancing question, should this be regarded one, unfavorably to the mariner. If there is hardship in the rule, it is better that it should bear more heavily on the ship and owners than on the seaman. The ship is to bear the expense of board, medical advice and attendance. and those other charges incident to the mature of the complaint and the climate, or circumstances of the confinement. The George [Case No. 5,329]; Lamson v. Wescott [Id. 8,035]. And the responsibility of the owners personally is co-ordinate with that of the ship. 3 Kent. Comm. (5th Ed.) 133, note; Abb. Shipp. 158, 172. 78b.
See, also, on tne liability of the ship for the expenses of a mariner's cure of hurts received in her service, The Atlantic Lt’ase N'o. 020].