| D. Wis. | Jan 15, 1867
It is contended that the officers of the vessel had neglected their duty in not fastening to the main mast the blocks upon which the boom rested. This, I think, is not tenable. The blocks were placed against the main mast in the usual manner, known to all on board, merely for the temporary support of the boom. The object of the elevation of the boom, and the existence of the passage way, were equally well known. If no passage way had existed, or if libellant had been required or ordered to pass under the boom, — -in either case the vessel would be in fault in not securing the blocks or the boom from dropping. I do not think the vessel was in fault in this respect.
It is not necessary to prove by authorities that a seaman, having received an injury or taken sick whilst in the service of the ship, without his fault, is to be cured, or rather cared for, at the expense of the ship. This rule is very ancient, and is universally recognized. Sound policy in favor of commerce, to induce seamen to ship for long voyages, and to perform laborious and hazardous duties on board, and also intrinsic equity sanction the rule. The rule is beneficial to the owner, while he may deem it onerous. It encourages seamen to ship on lower wages, diminishes temptation to plunder, and encourages them in the discharge of duty; and the master will be watchful of their health, and careful of their exposure to disease and accidents. The right to, claim for such expenses, or such duty on the part of the ship or vessel, in contemplation of law, is a part of the contract for wages, and a material ingredient in the compensation for the labor and services of the seaman. And in the admiralty a remedy may be applied on the principle of additional wages; and in case of neglect or injuries of the seaman on the part of the ship’s officers, it may be extended beyond the time of shipment or the return of the vessel to her home port. The services of a seaman are maritime, and whatever enters into the compensation for such services, and is reducible to money, is in equity decreed as a just remuneration for such services.
This ancient and now universal marine rule, is as applicable to seamen or mariners on the lakes, and on rivers flowing into the ocean, as on the high seas. Seamen or mariners on board boats or vessels employed in navigable fresh waters within the admiralty jurisdiction of the United States are merchant seamen, and are entitled to all rights, and subject to all duties as such. But upon the equitable principle of the marine law, the same consideration under the rule may not be extended indiscriminately to all classes of seamen. Humanity, and the interests of commerce, demand a liberal extension of the rule towards seamen on vessels employed in foreign trade. But the same liberality need not be extended to a seaman shipping for a
Claimant’s advocate contends that libellant was in fault for passing over the lumber and under the boom, and cannot therefore sustain his libel. To entitle a sailor to sustain a libel for care and attendance, required in case of sickness or personal injury while in the service of the vessel, the disability must have occurred without his fault. Libel-lant testifies that he took the course over the lumber to save time; but he had better have said that he thoughtlessly followed the lead of a reckless brother sailor. Sailors are wards of the admiralty, and are rather excused than condemned for accidental mistakes while in the faithful and obedient discharge of duty. Even after punishment for willful disobedience, if they return to duty, their full wages in many cases are allowed. A strict rule of forfeiture should not be applied to a sailor. What may be negligence or fault in persons employed in service on land, may not be in sailors employed on board of vessels. Ordinary negligence, consistent with entire good faith, as in this instance, should not prejudice a sailor’s just rights. The marine law rather overlooks ordinary negligence, but punishes those gross faults and vices which affect or prejudice the ship’s service or discipline. The accident occurred to libellant while in the prompt discharge of duty, in obedience to a proper command. The dropping of the boom was unforeseen, and not caused by him. Under such circumstances, I do not think that libellant was in fault. To forfeit a claim for care or attendance under the rule, the disability or sickness of the seamen must be owing to vicious or unjustifiable conduct, such as gross negligence operating in the nature of a fraud upon the owners, willful disobedience to orders, and persistent neglect of duty. Walton v. The Neptune, [Case No. 17,135;] Reed v. Canfield, [Id. 11,641;] Johnson v. Huckins, [Id. 7,390;] Pierce v. The Enterprise, [Id. 11,145;] The Nimrod, [Id. 10,267.]
The following cases will explain the principle upon which relief has been allowed sick and disabled seamen: In Harden v. Gordon, [Case No. 6,047,] the rule is elaborately discussed, and the court came to the conclusion that the expense of curing a sick seaman in the course of the voyage is a charge on the ship, and in this charge are included not only medicines and medical advice, but nursing, diet, and lodging, if the seaman be carried ashore; that the court of admiralty has jurisdiction to enforce the payment of these expenses, by a libel, for they are in the nature of additional wages during sickness; and that no stipulation contrary to the maritime law to the injury of seamen will be allowed to stand, unless an adequate additional compensation is given to them. In the case of The George, [Id. 5,329,] the mate took sick during a foreign voyage, and was put on shore, where expenses were incurred for medicines, medical advice, and attendance. It was adjudged that the ship owner should be held liable. In the case of The Nimrod, [Id. 10,267,] a suit for mariner’s wages, no deduction was allowed for expenses attending the sickness of a seaman diming the voyage, exceeding the balance of his wages. [So, also, in The Forest, Id. 4,936, where the expenses attending the sickness of a seaman during the voyage exceeded the balance of his wages.] * And in Freeman v. Baker, [Id. 5,084,] it is decided, that a promise of a seaman, sick in a foreign port during the voyage, to pay bills for his medicine, &c., is void, and does not release the ship of liability. See, also, The William Harris, [Id. 17,695;] Brundet v. Tober, [Brunent v. Taber, Id. 2,054;] Ringold v. Crocker, [Id. 11,843;] The Atlantic, [Id. 620;] Walton v. The Neptune, [Id. 17,135.]
The following cases extend the benefit of the rule beyond the time of service of the seaman, as limited by the shipping articles; but it will be observed that misconduct on the part of the officers of the vessel formed an essential ingredient in each case:
In Reed v. Canfield, [Case No. 11,641,] the ship Albion, having been employed in a whaling voyage on the Pacific, came to anchor in the harbor of New Bedford, her home port. The master soon after landed, and gave permission to one of the mates also to go on shore. Both of the mates expressed a desire to avail themselves of this permission, on the return of the boat from landing the master. They both concluded to go on shore, taking with them a boat’s crew. The ship being left without, officers to enforce discipline, the boat’s crew, including libellant, remained on shore after landing the mates, until a storm ensued, which rendered the passage of the boat from shore to the vessel tedious; and libellant’s feet were so frozen that they had to be amputated. The disability to libel-lant would not have happened but for the unwarrantable departure of the officers from their duty.
In Brown v. Overton, [Case No. 2,024,] libellant, a seaman on board the ship Madison, in a voyage from Calcutta to Boston, while reefing a top sail, was thrown from the yard by the sudden motion of the sail and violence of the wind, and broke both of his legs. The master, with the aid of a passenger and one of the crew, set the bones, and seemed them in bandages and splints as
In the case of Croucher v. Oakman, 3 Allen, 185, at law, the plaintiff was allowed to recover for damages for the unlawful act of the master in wounding and then discharging him in a foreign port, while employed in the prosecution of a voyage. The plaintiff was allowed for necessary expenses at the foreign port, and for his return, months after the time mentioned in the shipping articles.
And in Moseley v. Scott. 5 Am. Law Reg. (N. S.) 599, at law, plaintiff shipped on board a steamboat as cabin-boy. for a trip to Nashville and back to Cincinnati. During the voyage he became sick with small-pox to such a degree that he was not able to attend to his duty, and was compelled to take to his bed on board, where he remained until the return of the boat. The master and officers of the boat during his confinement on board neglected to furnish him with sufficient medicine, medical advice, attendance, nursing, and diet necessary for his comfort and cure. By reason of such neglect, plaintiff’s feet were so frozen that they had to be amputated, which confined him in a hospital several months. A demurrer to the petition, according to the practice in the state of Ohio, was overruled. See, also, Nevitt v. Clarke, [Case No. 10,138,] where the ship in a foreign voyage was sold to foreigners without arrangements being made for the return of a sick seaman.
These are all the American cases that I have had access to. In the first class, misconduct or neglect of the officers of the vessel was not material. In the second class, their misconduct and neglect towards the seaman became an important item for the consideration of the court. Upon every principle of humanity and equity, owners of vessels should be held liable, in amount measured by the actual loss to the seaman, for his sickness or disability caused or aggravated by the misconduct or neglect of their officers.
From this review of American cases I have arrived at the conclusion that, in the absence of misconduct or neglect on the part of the officers, the obligation of the vessel to provide for a disabled or sick seaman, should only be co-extensive in duration to that of the seaman to the vessel. The privileges and liabilities of -the parties are, in contemplation of law, measured by the shipping articles. Interests of commerce do not require that the .privileges and duties of ship owners and seamen should be extended beyond the reason, nature, and terms of the shipping contract, unless for fault, misconduct, or neglect on the part of officers of vessels towards their seamen; or perhaps, when the removal of a sick or disabled seaman from the vessel, or a change of treatment then being practiced might prejudice his recovery within a reasonable time. Humanity and equity might require indulgence in extreme cases. Libellant received the hurt .complained of without fault on the part of the officers of the vessel while coming into, the port of discharge; and after his discharge and receipt of his wages, he traveled by land about ninety miles to the city of Milwaukee. He cannot recover against the vessel for expenses incurred by him in this city, and his libel must be dismissed. Decree accordingly.
[From 1 Biss. 562" court="D. Wis." date_filed="1867-01-15" href="https://app.midpage.ai/document/the-ben-flint-8628490?utm_source=webapp" opinion_id="8628490">1 Biss. 562.]