167 F. 1 | 9th Cir. | 1908
Lead Opinion
The libel in this case was filed in the District Court for the Territory of Hawaii by Henry Wiithof, the first officer of the American barkentine Fullerton, against the barkentine and claimants, to recover for personal injuries received by him while in the performance of his duties on board the vessel.
It appears from the evidence that the barkentine Fullerton, owned by the Mission Transportation Company of Los Angeles, Cal., departed from the port of San Francisco on December 19, 1906, in tow of
When the Fullerton was taken in tow by the Lansing off Port Harford, lier port anchor chain, as part of the towing line, was further secured by lashing the chain to the towing bitt a few feet in front of the windlass. This lashing was done by the crew under the direction of the appellee as first officer, and under the supervision of the second officer and master, the latter being on the forecastle head at the time with the megaphone, through which he was communicating with the .Lansing. The lashing was done with an inch and a half rope, which had been previously used for a like purpose when the barkentine was in tow of the tug Monarch. The appellee proposed to take a new 3% inch rope for the lashing on this occasion, but he was told by the master that it was not necessary to waste good rope; that he could use the old rope for that purpose, and because the mate, who saw the chain
The appellee requested the master to return to Port Harford for medical assistance, stating that he had a very bad arm. The master said he knew, but he could not return; he could not cut loose from his tow. The steward was called, who washed the injured arm, and under the direction of the master it was' placed in splints. On ar
The first cause of complaint alleged in the libel is that the use and employment of the anchor chain by the Fullerton for towing purposes in the manner described was negligent and careless, for the reason that it was unsuited, improper, and unsafe; that the links of the chain could not and did not fit the notches, grooves, or indentures of the wildcat; and that in lashing and making fast the anchor chain to the towing bitt, and while the libelant was in the exercise of due and proper care, the chain slipped over the wildcat and pinioned libelant’s right arm against the bitt, thereby bruising, mashing, and breaking his arm and producing the injuries for which he seeks compensation. The second cause of complaint alleged is that after ilie injury to libelant the master of the Fullerton, in disregard and violation of his duty and obligation to libelant to return to Port Harford for the purpose of providing libelant with proper and sufficient medical attention and care, continued on the voyage to Kihei; that as a result of the injuries to libelant, and because of the want of proper medical attention, and by reason of the failure and neglect of the master to return to Port Harford, where the libelant might have received proper and sufficient medical attention, libelant’s arm was in such condition that upon the arrival at Kihei it was necessary, in order to save libelant’s life, to amputate his arm at a point about four inches above the elbow.
The answer of the libelees, so far as it is necessary to be noticed, alleges that libelant was not injured by reason of any negligence or carelessness of the vessel or owners or master, but solely through the negligence, carelessness, fault, and lack of due care and caution on the part of the libelant; that prior to the time of the departure of the Fullerton from the harbor of San Francisco, and prior to the departure of the vessel from Port Harford for the voyage to Kihei, the libelant had a full, thorough, and accurate knowledge and acquaintance with the anchor chains and windlass of the Fullerton, and with the mechanism and appliance of the windlass and a part thereof known as the “wildcat,” and the functions and purposes thereof, and the purposes and uses and operation of the wildcat in connection with the anchor chain while in the performance and operation of the towing of the Fullerton, and in the proper fitting of the links of the anchor chain into the indentures and grooves or notches in the wildcat, and had full, thorough, and accurate knowledge and acquaintance with the length of the links of the anchor chain and the size of the grooves of the wildcat, and also of any misfitting of the links of the anchor chain into the indentures of the wildcat, if any misfitting- there was, and
Testimony upon these issues was taken by the court below, and a judgment entered in favor of the libelant for $17,500. The present appeal is from that judgment. When the record reached this court the appellants (libelees) moved this court for leave to take additional testimony in the case. Upon the showing made, an order was entered allowing the taking of such testimony. This additional testimony related mainly to an alleged act of contributory negligence on the part of the libelant in failing to use a chain stopper which it is claimed would have helped to hold the chain. This chain stopper or riding chock was in front of the towing bitt. At the time of the injury to the libelant the pawl of the chain stopper was triced up, and it was contended that before proceeding to lash the chain to the towing bitt the libelant should have dropped the pawl of the chain stopper and thereby eased the strain on the chain, bpt the evidence taken does not support this contention. The evidence is that this chain stopper or riding chock is in direct line from the windlass to the hawse pipe, and that it is bolted to the deck with only four bolts. It is used to ease up the strain on the windlass when the vessel is riding at anchor, and in mooring and unmooring when both anchors are used. It is also used when the anchor is over the side, but it is never used for easing the strain on the windlass, when the vessel is in tow using the anchor chain and the chain lashed to the towing bitt, 'for the reason that it is not strong enough for that purpose, and, besides, when the chain is lashed to the towing bitt it is not on a straight lead from the
We will now consider the case as it was presented to the court below. With respect to the first cause of complaint, it appears from the evidence that the specifications for the vessel when she was new called for 180 fathoms of chain. This would furnish 90 fathoms of chain for each side of the vessel. The wildcats on both sides of the vessel required the chains to have 10-inch links. When the Fullerton departed from San Francisco on the night of December 19, 190(5, in tow of the steam tug Monarch, she had on board only 120 fathoms of chain, -with links of various lengths from 11% to 11% inches. Ninety fathoms of this chain ivas taken in on the starboard side, and 30 fathoms on the port side. Twenty fathoms of the latter chain was payed out on the towing line, and 10 fathoms of the chain remained in the chain locker. The links of the chain did not fit the wildcat on either side. They were so large on the port side, where the chain was used as a part of the towing line, that, as before stated, the links projected over the ends of the compartments in such manner that the chain would slip over the wildcat under heavy strain. It appears that on the previous voyage from Port Harford to San Francisco the Fullerton lost both of her anchor chains, consisting of 180 fathoms, outside of the harbor of San Francisco. She. was at anchor. 1 Ier starboard chain had been attached to a towline, but the towline had been cast adrift. When they came to heave in on the anchor chain, the anchor caught on something and carried away the port wildcat, and, as the two chains were shackled together in the chain locker and the outer end of the starboard chain was adrift, the entire chain ran out and was lost. This was between the 5th and 10th of December. It appears that there was some difficulty in finding chains to take the place of the lost chains. The master and one Frank H. Evers,
“and asked him how long it would take him to get us the chains here and he said it was impossible to do anything under two months, and in the way freight was coming at that time it would likely be longer. I ordered him to immediately telegraph for the chains, which was done, and we obtained the chains in a little over four months after they were ordered.”
The inference sought to be drawn from this testimony by the appellants is that to obtain chains that would fit the wildcats the vessel would have been compelled to wait four months for the chains ordered from the Lebanon Chain Works, but if this was the fact it certainly could have been established by direct testimony. If no chains could be obtained either in San Francisco or at Oakland with links that would fit the wildcats, it was easy to establish that fact by direct and positive testimony, and this was not done.' The testimony relative to the difficulty of obtaining suitable chains for the vessel was introduced by the appellants, and the presumption is that it was the most favorable testimony that could be produced in that behalf. In this aspect the evidence was not sufficient to show that all reasonable means had been used to obtain suitable chains for the vessel prior to her departure from San Francisco, and that the failure to secure them was because they could not be obtained under any reasonable conditions.
It is contended by the appellants that the appellee knew before the vessel left San Francisco that the links of the chain were too large for the wildcat, and that he assumed the attending risk. Evers testified that he knew the links were about an inch too large. He knew they did not fit, and he says the mate and he mentioned the fact to one another, and the mate said it would do. Evers fixes the time of this conversation in the evening when they were taking the port chain on board, and this latter act he says was between- 5 and 6 o’clock. This was on December 19th, and it was dark at that time. The appellee testifies that he does not remember any such conversation; that the port chain arrived at the wharf about 6 o’clock; that he then took the sailors and engineer and carperrter, and got supper; there was no cooking on board the vessel; they finished supper about a quarter to 7 o’clock, and returned to the vessel and began taking the port chain on board at 15 minutes to 8 o’clock. It was dark. He had no opportunity of observing the condition of the port chain when it ar
fi'he defense that the appellee assumed the risk attending the use of a chain that did not fit the wildcat cannot he sustained in any reasonable view of the testimony, but the case has another aspect which should not be overlooked. The usual method of towing is with the hawser fastened to the towing bitt. The testimony in this case is to the effect that it is also common to use one of the anchor chains in towing. In such case the wildcat is used instead of the towing bitt for holding purposes, and the lead of the chain is through the hawse pipe; but when the hawser is fastened to the towing bitt the lead is over the forecastle head, and there is always danger that the vessel will take a sheer and pull the head gear out of the vessel. For a long tow the use of the anchor chain fastened to the wildcat and leading through, the hawse pipe is, therefore, a proper appliance, but in such case the links of the anchor chain must fit the wildcat and make the chain secure, or otherwise there is danger that the chain under the strain of a heavy tow will slip and all the chain in the locker run out, including the chain attached to the anchor on the other side of the vessel, and when Ihe strain comes on this chain the bow of the vessel might be pulled out. Appellee testifies that this was what occurred to him when
“If any person knowingly sends or attempts to send, or is party to sending or attempting to send an American ship to sea, in the foreign or coastwise tcp.de, in such an unseaworthy state that the life of any person is likely to be thereby endangered, he shall, in respect of each offense, be guilty of a misdemeanor, and shall be punished by a fine not to exceed one thousand dollars, or by imprisonment not to exceed five years, or both, at the discretion of the court, unless he jiroves that either he uáed all reasonable means to insure'her being sent out to sea in a seaworthy state, or that her going to sea in an unseaworthy state was, under the circumstances, reasonable and justifiable, and for the purposes of giving that proof he may give evidence in the same manner as any other witness.”
In Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 37 C. C. A. 499, 48 L. R. A. 68, the plaintiff was in the employ of a railroad company as a yard switchman in its yards in Cincinnati, Ohio. While attempting to couple two freight cars he had his foot caught in an unblocked guard rail, and in his efforts to extricate the foot his right hand was crushed between the drawheads of the cars and injured so badly as to require amputation. The plaintiff had been in the employ of the railroad company for seven months. He had had nine years’ experience as a railroad man. A railroad man of experience can see at a glance whether a guard rail or switch is blocked or not. There were a great many guard rails and switches in the yards where plaintiff worked. With the exception of a few where experimental blocks were used, the defendant did not use blocks in either its guard rails or switches. The plaintiff said he did not know that the guard rail in which his foot was caught was not blocked, and that he had not noticed whether the guard rails and switches of defendant generally were blocked or not; but this testimony was given no weight. The railroad company defended on the ground that the plaintiff knowing the danger has assumed the risk of the employment. A statute of Ohio required railroads to adjust, fill, or block the frogs, switches, and guard rails of their tracks, with the exception of guard rails on bridges, so as to prevent the feet of their employés from being caught therein.
The court below placed the assumption of risk where it properly belonged in this case, when it said:
“If tlie ship could not make proper preparations for sea, and chose to go to sea without them, it was a delibéralo assumption by her of ail risks and all damages which might result from such want of preparation, which would include all damages that the crew might suffer in the way of injury through such want of preparation.”
It is next contended that the appellee was guilty of contributory negligence at the time of the accident in not signaling the Lansing to slow down when the lashing of the chain to the bitt had been carried away and the appellee with the assistance of his watch was about to put on another lashing. The appellee was facing an emergency. All the conditions required immediate action to secure the safety of the ship and those on board. It would have required time to secure a light for signaling purposes, and such delay might have resulted in serious consequences, and, besides, the appellee had no authority to signal the Lansing to slow down. He did what the situation and his authority seemed to call for, and he cannot now be charged with contributory negligence in acting promptly in the emergency to secure the chain to-the bitt.
It is further contended that the appellee was guilty of contributory negligence in placing himself in a dangerous position in the work of lashing the chain to the bitt. Appellee testifies that he was standing on the port side of the chain facing forward toward the bitt, to which the chain was being lashed by the crew under the direction of the
With respect to the appellee’s second cause of complaint, it appears from the evidence that at the time of the accident the Fullerton was 582 miles from Port Harford and between 1,500 and 1,600 miles from Kihei. The appellee, knowing the serious injury he had received, requested the master to return to Port Harford for medical assistance. Surgical skill was required to set the bones of the arm and place the arm in splints so that the broken bones would unite and the injured tissue heal. This skill the master did not have, nor was it on board the vessel, but it could have been had at Port Harford. In The Iroquois, lié Fed. 1003, 55 C. C. A. 197, a seaman in the performance of his duty fell and broke both bones in one of his legs below the knee, and there was no one on board competent to treat the injury. This court held that it was the positive duty of the master to take him at once to some port where proper treatment could be had, and, where such a port could have been reached in time, the failure to do so, by reason of which amputation became necessary, was negligence on the part of the master which rendered the ship liable in damages for the injury. Judge Gilbert, speaking for the court, said:
“We entertain no doubt, in view of tbe evidence in the case and the law applicable thereto, that it was the duty of the master to bear away to some port of distress as soon as possible after the occurrence of the accident. * * * By the maritime law he (the seaman) was entitled to be healed at the expense of the ship. Reed v. Canfield, 1 Sumn. 193, Fed. Cas. No. 11 .G-H; Harden v. Gordon, 2 Mason, 54, Fed. Gas. No. 6,047. This obligation was imposed upon the ship in consideration of the appellee’s services, and his undertaking to engage in possibly perilous voyages and encounter hazards if necessary in the protection of the ship and cargo. The injury to the appellee was a serious one, and the master must be presumed to have known that it required careful and scientific treatment.”
The master of the Fullerton refused to turn back for the purpose of securing proper surgical skill for the appellee at Fort Harford. His reason for refusing is stated by the appellee in his testimony as follows:
“That night after I got to bed I asked the captain, ‘You better return, with this arm; you better return to port. I got a very bad arm, Captain.' lie says, ‘Well, I know but I can’t return; I can’t cut loose from this towboat.’ I said, ‘Well, you can signal to him.’ * * * Q. What did he say? A. ‘Well, we will see about that in the morning, but we cannot turn around;*13 your arm will be all right; we will put it in splints and dress it.’ I says. T am afraid I have a bad arm. afraid I will lose my arm before I get there; blood poisoning might set in.’ ‘No,’ he says, ‘that will be all right; you know I can’t turn around; it would cost me too much money; see how much it will cost to turn around, and the steamer would not go with me anyway.’ I says, ‘You don’t know; signal to him and find out.’ He says, ‘We will see what we can do in the morning; we will have a talk.’ That was all the conversation. * * * Q. Did you see the captain any more that night? A. No, sir, I did not see him until next morning. Q. What time did you see the captain the the next morning? A. It was 20 minutes to 8, sir, a. m. Q. In the morning? A. Yes, sir. Q. What was done then? A. He told me then he had signaled the Lansing, and the Lansing had signaled to them, and I asked him whether —what signals he sent to the Lansing — just asked, ‘What -was the matter last night?’ Then ho answered that I got my arm broke. ‘Did you ask him to reraru wtth me, return with the ship?’ I says. He said, ‘No; what is the use of asking him? 1 know he would not return, anyway.’ I says, ‘You ought to try to do something with it, because my arm is all swollen up.’ Then I showed him my arm and my hand, all black and swollen up. ‘Then I am suffering fearful pain.’ I told him, T am afraid of blood poisoning might set in before we get much farther; you have got a fair wind to go back; can’t you go back? You got a fair wind ; try to sail back.’ He says, ‘Yon are all right, hi a few days, as soon as the arm is set up.’ ‘I am afraid, Captain, it is beyond your— It is beyond you; you haven’t got medicine to put on it, or anything.’ He said, ‘All right, it will be all right; I will fix it up.’ ”
This testimony is uncontradicted by the master. His testimony is as follows:
“Q. At the time that the mate was hurt, did you consider at all the proposition of medical attendance upon the mate? A. After I had fixed his arm up, put it splints, and made him as comfortable as I could, I considered and thought the whole matter over in my room, and considered what was the best to do under the circumstances. * * * Q. Well, after the accident happened to the mate, did you continue on your voyage, or did you go back to Port Harford? A. Continued on the voyage. Q. Why did you continue on with your voyage? A. I considered we were under tow, in tow of the Lansing. and the chances were just about the same to get down to Kihei in the same time as we would if we had gone back. Q. Well, you understand, do you not, Captain, that Kihei is between 1,500 and 1,600 miles away, and Port Harford was 582 miles away? A. Yes, sir. Q. Now, you say that you considered the chances were about the same? A. Yes, sir. Q. So that you had not— If you had not gone to Kihei, but had gone to Port Harford, what would have been the motive power of the Fullerton, if you had gone to Port Harford? A. Wo would have had to sail. Q. Why would you have had to sail? A. The Fullerton would have gone on; at least the Lansing would have let me go; I would have had to let go the Lansing, and he would have gone on and delivered his own cargo. Q. Well, why would the Lansing have gone on? ■* "* * A. I have instructions in case of breaking adrift from the tow, or anything interferes that the two ships cannot proceed together, each one continues on its own course. * * * Q. How is the American barkentine. Fuller! on rigged, tackled, and furnished with appliances relative to sailing? A. She is well fit out, well found, and always ready for sailing. Q. If you had cast adrift or parted with your tow with the Lansing, in your judgment, taking into consideration the weather conditions as they were on that day and the day following', how long would it have taken you to sail back to Port Harford, if you had so parted your tow and cast adrift from the Lansing at the time of the accident or the next morning? A. Well, that is something you cannot answer definitely. * * * Q. In arriving at your conclusion as to whether to go back to Port Harford or sail on to Kihei, what facts did you take into consideration? A. I took into consideration that if we continued to Kihei we continued under tow. Q. If you turned around to go back? A. We would have to go under our own power; that is, sail. * * * Q. What facts did you take into consideration aside from the fact that you would have to sa'l*14 back to Port Harford? A. Well, at the time of the accident, the wind was sou’west, and it would naturally go to the west and nor’wést and finish up there, and blowing pretty fresh, and we could not make much headway when it got into nor’west on account of the seas and wind, and I thought that under the circumstances * * * and conditions that we would get to Kihei as-soon as we would get back to Port Harford. * * * Q. Now, what, in your opinion, would have been the probable length of time, or what would you consider under the circumstances would have been the variations in time, that you could have sailed from the position in which you were at the time of the accident to Port Harford? A. Under favorable circumstances, we would have been in Port Harford in three or four days, but again we might have been double that time that season of the year, or even longer. Q. How much longer? A. Well, you could not tell, you could form no idea. AVe might get there in four days, we might get there in fourteen; it is hard to tell; you don’t know how the wind is going to act.”
The instructions to which the master referred in his testimony as his authority in such an emergency were introduced in evidence. They were issued by the Union Oil Company of California, and addressed “Captain J. C. Kitchin, Bktn. Fullerton.” What relation this company had to the Fullerton or the Fansing or the cargoes of either is not disclosed. The Mission Transportation & Refining Company was the registered owner of the Fullerton. The cargoes on both the Fullerton and the Fansing were crude oil, but the owners of these cargoes are not stated, nor is the ownership of the Fansing mentioned in the evidence. The instructions material to this case were as follows :
“When you are towed by one of our own vessels, in ease the hawser should break or tlio weather conditions are suc-h that they are obliged to cut the Pullerton loose, she is in a position to take care of herself, hence you would head your course for the port you started for, and the steamer will, if she can, take you up later. Regarding signals, that is a matter you can arrange with the vessels towing you.”
There is no evidence in the record that the Fullerton was being towed by a vessel owned by the company that issued these instructions, but, waiving that objection, the instructions do not relate to the situation on board the Fullerton concerning which the master was called upon to act. The hawser had not parted or broken, and the weather conditions had nothing whatever to do with the injury to the appellee. The instructions were, therefore, not applicable, and it was not to be expected that instructions would have been given for such a situation. The conduct of the master under such circumstances is regulated by the general maritime law, which requires that the master shall use all reasonable exertions to secure skillful and timely attention for a seaman disabled in the service of the vessel. Brown v. Overton, 1 Spr. 462, Fed. Cas. No. 2,024; Whitney v. Olsen, 108 Fed. 292, 47 C. C. A. 331, and cases there cited; The Iroquois, 194 U. S. 240, 24 Sup. Ct. 640, 48 F. Ed. 955. It was therefore plainly the duty of the master of the Fullerton to have comimmicated with the master of the Fansing and ascertained what assistance he or his vessel was able to render under the circumstances. Neither of the cargoes was perishable, and there was no risk of a loss of maidcet for either. It would seem that the Fansing could have dropped the Fullerton and taken the appellee back to Port Harford. The Fullerton
It is contended by the appellants that the judgment of the District Court in favor of the appellee for damages in the sum of $17,500 is grossly excessive. The court below took into consideration appellee’s earning capacity at the time of the accident, and how far that capacity had been reduced by the loss of his arm. The evidence showed that appellee had been earning in wages and perquisites $150 a month, and was earning on the Fullerton in wages and perquisites $140 a mouth with the chance of making it up to $150 a month. The court estimated appellee’s earning capacity after the injury to be not over one-third what it was before the injury. The court further considered appellee’s expectation of life as shown by the life insurance tables, and discounted that expectation by five years for sea service. The court determined that the libelant was entitled to an amount which, at a reasonable rate of interest compounded annually, would furnish him with $1,200 per annum the rest of his life, dating from the date of the accident. The court added damages on account of appellee’s intense and long-continued suffering oí mind and body brought upon him through the negligence of the representatives of the ship, and found the total damages $17,500. There does not appear to he any error in this method of estimating the damages sustained by the appellee, and, as the findings of fact were fully supported by the evidence, we find no reason for reversing the judgment on that account. In Western Union Tel. Co. v. Engler, 75 Fed. 102, 21 C. C. A. 246, the plaintiff was driving along the highway when his horses struck the wire of the telegraph company, which had fallen from its proper place on the poles to within about two feet of the ground. The horses, becoming frightened, suddenly turned and ran, thereby throwing the plaintiff to the ground from the vehicle in which he was riding. By this fall he received a compound comminuted fracture of the
“Damages in such a cáse must depend very much upon the facts and circumstances proved at the trial. When a suit is brought by the party for personal injuries, there can be no fixed measure of compensation for the pain and anguish of body and mind, nor for the permanent injury to the health and constitution, but the result must be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.”
Considering all the facts of this case, we see no just ground for disturbing the judgment of the court below.'
In the view that we have taken of this case, it is not necessary to consider the remaining questions raised on this appeal.
The judgment of the court below is affirmed.
Concurrence Opinion
(concurring). I agree that the decree should be affirmed on the grounds alleged and the facts proven as to the first cause of action. But in view of all the circumstances disclosed in1 the evidence, and the law applicable thereto as defined in the decision of the Supreme Court in The Iroquois, 194 U. S. 240, 24 Sup. Ct. 640, 48 L. Ed. 955, I am of opinion that the master of the Eullerton was not negligent in proceeding on the voyage instead of turning back by sail to Port Harford.