20 F. 702 | U.S. Circuit Court for the District of Eastern Louisiana | 1884
James Breslin, in April, 1883, shipped as engineer on the steam-ship E. B. Ward, Jr., plying between New Orleans and Central America. The ship sailed at midday on the twenty-eighth of April, 1883, and on the first night out, when in the Gulf of Mexico, between 8 p. m. and 12 midnight, he went on watch in the engine-room. At about 12 o’clock he called a fireman to take his place until he could go on deck to the lunch-room and get his lunch, which was set out from 6 p. w. to daylight, for all who were on duty during the night. In ascending from the engine-room upon the deck, on his way to the pantry, he stubbed his foot against the curbing of the hatchway, and fell over into the open space several feet to the bol-
Upon the whole ease, after much consideration, I conclude, (1) that the booby hatch should have been placed over and around the hatchway, and that it was not so placed, through the neglect of the officers of the vessel; (2) that it was not the duty of the libelant, though one of the officers, to seo that the booby hatch was properly placed; (3) that notwithstanding the prevailing habit or custom on the Ward for the engineer to leave his duty, without competent relief, in the night-time, to seek lunch or anything else, in a distant part of the vessel, the libelant was in fault in leaving his post for the purpose he did, and that his so leaving his duty, as aforesaid, and thus endangering the safety of the vessel, was a gross breach and neglect of duty.
In this connection it is proper to state that there is evidence in the record tending to show that the lunch was provided on the Ward for the officers to partake of in going on and coming off watch in the nighttime, and was not intended as an invitation for officers on duty to quit their stations. And it would seem that no matter how slack and easy-going the discipline and rules may be on steam-ships on the high seas, a habit or practice for the engineer to leave his post without proper relief ought not to be countenanced.
The case, therefore, is one where the libelant has been injured through the negligence of the other officers on the vessel, while he himself was grossly neglecting his own duty to the ship and her own
In the present case I am clearly of the opinion, under all the circumstances, that it is not one where the libelant is entitled, in reason or justice, to damages against the claimant. It seems that the libel-ant was furnished with such care and attendance as were within the means of the ship, and was brought back to this port and paid 1m wages, so that there is no claim of any neglect of duty by the ship in these respects.
In the case of The Wanderer, ante, 140, recently decided, the libel-ant was given costs, but the contributory fault in that case was trivial compared with the neglect of duty in this, and there were other circumstances to distinguish that case.
A decree will be entered dismissing the libel herein, with costs of both courts..