The Iroquois, No. 815

No. 815 | 9th Cir. | Oct 6, 1902

GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

We entertain no doubt, in view of the 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. There were several ports to which the appellee might have been taken for surgical treatment. The vessel could havq returned to Port Stanley, the chief port of the East Falkland Island. The district court found that to have réturned there would have involved a loss of time of three or four weeks, and in so finding made, we think, more than liberal allowance for probable delay and adverse winds. There were other ports accessible after rounding the Horn to which the appellee could have been taken in time to procure the necessary treatment and save his leg. The ship, could have made Evangelistas Island by sailing one or two days out of her course. From that island it seems that the appellee could have been taken by steamer to Valparaiso. The Iroquois herself could have made the port of Valparaiso with a loss of probably not more than four or five days in her voyage. The port of Ancud or San Carlos-might have been reached with about the same loss of time. It is shown that at that port proper surgical treatment could have been had. When, on March 30th, the splints were removed, the vessel was as near to San Francisco as to Valparaiso, and there was no recourse except to proceed on her voyage. It is no excuse that the master was ignorant, or that he believed the broken leg was healing properly, and for that reason thought it unnecessary to bear away from his course. Nor is he excused by the fact that the appellee .at the time made no complaint of the treatment he received, and made no demand to be taken to a port of distress. The appellee may have been ignorant of his rights and of the duty of the master in the premises, or he may have been uninformed of the proximity of accessible ports. The duty of the master to the appellee was a positive one. In Robertson v. Baldwin, 165 U. S. 287, 17 Sup. Ct. 326, 41 L. Ed. 715" court="SCOTUS" date_filed="1897-01-25" href="https://app.midpage.ai/document/robertson-v-baldwin-94602?utm_source=webapp" opinion_id="94602">41 L. Ed. 715, Mr. Justice Brown, referring to the protection accorded to seamen, •observed that they are treated “as needing the protection of the law in the same sense which minors and wards are entitled to the protection of their parents and guardians.” The appellee had been disabled while in the service of the ship, and without any fault on his •own part. By the maritime law he was entitled to be healed at the expense of the ship. Reed v. Canfield, 1 Sumn. 195" court="None" date_filed="1832-10-15" href="https://app.midpage.ai/document/reed-v-canfield-8636186?utm_source=webapp" opinion_id="8636186">1 Sumn. 195, Fed. Cas. No. 11,641; Harden v. Gordon, 2 Mason, 54, Fed. Cas. 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 argument is made that a deviation from the vessel’s course would have invalidated the insurance on vessel and cargo. “A deviation is a voluntary departure from the course insured, without necessity or reasonable cause.” Bond v. The Cora, 2 Wash. C. C. 80" court="None" date_filed="1807-04-15" href="https://app.midpage.ai/document/bond-v-the-cora-9301003?utm_source=webapp" opinion_id="9301003">2 Wash. C. C. 80, Fed. Cas. No. 1,621. We are not aware that any court has ever held that a proper departure from the insured course for necessary treatment of a sick or wounded seaman operates to release an underwriter. The reverse has been held in Burgess v. Insurance Co., 126 Mass. 70" court="Mass." date_filed="1878-12-23" href="https://app.midpage.ai/document/burgess-v-equitable-marine-insurance-6419466?utm_source=webapp" opinion_id="6419466">126 Mass. 70, 30 Am. Rep. 654; Bond v. The Cora, supra; and Perkins v. Banking Co., 10 Gray, 312, 71 Am. Dec. 654.

We find no error in the conclusions of the district court. The decree will be affirmed.