36 F. 773 | D.N.J. | 1888
This is a proceeding in rem to recover damages for injuries sustained by the libelant, a seaman on board the Egyptian Monarch, on her voyage from England to "the United States, in the month of July, 1886. The libelant, a naturalized citizen of the United States, had shipped as an able-bodied seaman. The vessel left the Milward docks, in the port of London, on July 14th, being towed out into the river Thames by a tug-boat attached to a two-and-a-half inch wire hawser, which was a part of the tackle of the steam-ship, and fastened at the other end to the aft-deck of the Monarch. At the time of the accident the vessel was going down the river, but was still within the limits of the port of London. The libelant, with another member of the crew, w'as reeling in the hawser, which had been east off by the tug, and triced up along-side of the Monarch. One end of the hawser was fast to the reel, a horizontal drum between two uprights, passing thence out through the after-quarter chock, and along the ship’s side forward to her waist, where the other end wTas made fast by a hempen line to the midship davit, so that the bight of the hawser just touched the water. The second mate superintended the work of reeling. Under his direction the boatswain’s mate paid out the hawser from the davit by means of the line, and the men at the reel wound it up. During this operation the hawser was paid out more rapidly than it was taken up on the drum, in consequence of which the bight sank into the water at the vessel’s stem and was caught by the propeller, w'hich reversed the motion of the drum, causing the handle at which the libel-ant was working to fly back, and inflict on him serious bodily injuries. The libelant alleges that the accident occurred through the negligence of the second mate, and seeks to hold the owners of the ship liable. There
The law of the Ship’s home is applied by comity to regulate the mutual relations of the ship, her owner, master, and crew, as among themselves; •their liens for wages, and modes of discipline. The Brantford City, 29 Fed. Rep. 373. And this rule will not .be affected by the fact that one or more of the crew are citizens or subjects of different countries. In The M. Moxham, 1 Prob. Div. 107, 114, it was held (citing Reg. v. Anderson, 1 L. R. Cr. Cas. 161) that a seaman, having entered into articles to serve on board an English ship, so long as he remained on board that ship was in the same position an English subject would have been. In the celebrated case of Phillips v. Eyre, L. R. 4 Q. B. 225, 238, which was an action for assahlt and false imprisonment oh the island of Jamaica, •Lord’ Cockburn, in delivering the judgment of the court on a demurrer to the plea, said:
“The rule which obtains in respect of property and civil contracts, namely, that an act, unless intended to take effect elsewhere, shall, as regards its effect and incidents, if a conflict arises between the lex loci and the lex fori, be governed by the former, appears to us to be applicable to the ease of an act occasioning personal injury. To hold the contrary would be attended with the most inconvenient and startling consequences, and would be altogether contrary to that comity of nations in matters of law to which effect, if possible, should be given.”
In The Scotland, 105 U. S. 24, 29, the supreme court of the United States held the same doctrine. Speaking through Mr. Justice Bradley, it said:
“In administering justice between parties it is essential to know by what law, or code, or system of laws, their mutual rights -are to be determined. When, they arise in a particular country or state, they are generally to be determined .by the laws of that'state. These laws pervade all transactions which take place where they prevail, and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it was shown what that law was.”
See, also-, The Olga, 32 Fed. Rep. 329, and Whart. Confl. Law, § 475. The lex-loci, it is generally admitted, governs the duties, rights, and rein-
It is clear, therefore, in the light of the authorities just cited, and which could be multiplied, if necessary, that, under the application of the rule of comity, the right of the libelant to redress must be governed by the law of England; and what that law is in relation to cases of this kind abundantly appears from an examination of the English books. The industrious research of his proctor has not produced any authority to show that the law of England has ever recognized the existence of a maritime lien for personal injuries such as are alleged to have been received by the libelant, under the circumstances and in the manner set forth in his libel. On the other side, the conclusion is successfully established that the English courts have not only ignored "the creation of any lien under such circumstances, but that they have expressly denied it. In The Public Opinion, 2 Hagg. Adm. 398, a collision took place in the river Humber, 20 miles up from the sea, but within the body of a county. Sir ChRistopheb Robinson, J., said:
“That since the statutes of 13 Rich. II. c. 5, and of 3 Hen. VI. c. 11, it has been strictly held that the court of admiralty cannot exercise jurisdiction in civil cases, or causes of action arising infra corpus comitatus. * * * No ease has been found to support such proceedings, and I think I can venture to say that none has -occurred within a pretty long experience which I have had in the practice of this court. ”
This decision was rendered in 1832. The admiralty court act (1861) 24 Viet. c. 10, extending the jurisdiction of the high court of admiralty, provides, by section 7, that the said court shall have jurisdiction over any claim for damage done by any ship, whether within the body of a county or upon the high seas; but it has been held that the word “damage,” as used id the statute, was not intended to apply to injuries done to the person, but is solely applicable to mischief done to property. Smith v. Brown, (1871,) L. R. 6 Q. B. 729; The Vera Cruz, 10 App. Cas. 59. Lord Cockbtjen, in Smith v. Brown, supra, commenting on the distinction between damage done to property and injury to the person, says that the distinction is not one of verbal criticism, but of a substantial character, as appears from the fact that this distinctive phraseology has been observed in subsequent statutes relating to the same or analogous subjects.
Who are fellow-servants? There can be no controversy over the rule —now long settled, both in this country and in England — that, where several persons are engaged in the same employment, and one of them is injured by the negligence of another, the master or employer is not liable, provided always that he is not negligfent in their’selection or retention, or in providing adequate materials and means for the work; it being implied in the contract of service that the servant takes upon himself the risks arising from the negligence of his fellow-servants in the same employment. Railroad Co. v. Ross, 112 U. S. 383, 5 Sup. Ct. Rep. 184; Wilson v. Merry, L. R. 1 H.L. Sc. 326; Morgan v. Railway Co., L. R. 1 Q. B. 149. Admitting, then, that the libelánt was injured through the negligence of the second mate, and that he was himself without fault, yet, if this officer was his fellow-servant, the ship and her owners are exempt from liability. It will be seen by an examination of the English cases cited and commented on by Mr. Justice Field, in Railroad Co. v. Ross, supra, that the second mate and libelant would be considered as fellow-servants, on the ground that they were in the same common employment, and engaged in the same common work under that common employment. Conflicting decisions on this question may be found in our own courts, — federal and state, — but numerous and respectable authorities among them classify the subordinate officers of a ship as fellow-servants with the members of the crew, who are subject to their orders. The prevailing opinion is that, when the master is on board, the subordinate officers and seamen are fellow-servants. U. S. v. Huff, 13 Fed. Rep. 630; Halverson v. Nisen, 3 Sawy. 562; Olson v. Clyde, 82 Hun, 425; The City of Alexandria, 17 Fed. Rep. 390; Loughlin v. State, 105 N. Y. 159, 11 N. E. Rep. 371; Malone v. Transportation Co., 5 Biss. 315; The E. B. Ward, Jr., 20 Fed. Rep. 702; Benson v. Goodwin, (Mass.) 17 N. E. Rep. 517. In The City of Alexan