128 F. 863 | 9th Cir. | 1904
after stating the case as above, delivered the opinion of the court.
Much of the discussion on the appeal relates to the appellants’ contention that by the law of Great Britain the ship was under no obligation to care for or cure a seaman injured in her service, and was not subject to a lien for damages resulting from the master’s neglect to furnish such care or medical attendance. We find it unnecessary to consider this question, for the reason that the British law upon the subject is neither pleaded nor proven. It is not even shown that the Matterhorn is a British ship. The answer, it is true, alleged that she flies the British flag, and is owned by British subjects, but no' proof whatever was offered to sustain that averment, nor is there anything in the evidence tending to show that it was true, except that one of the witnesses for the appellee, who was also a member of the crew, was on cross-examination asked the question if he had ever before sailed in a British ship. But, if such proof had been made, it would not have dispensed with the observance of the rule that, where reliance -is placed on a foreign law different from our own, it must be alleged and proven. The Montana (C. C.) 22 Fed. 728; Liverpool Steam Co. v. Phœnix Ins. Co., 129 U. S. 445, 446, 9 Sup. Ct. 469, 32 L. Ed. 788. It is true that the appellants introduced in evidence the British merchants shipping act of 1894, but no particular portion of it was either designated or embodied in the record, nor is there anything to show that it was offered for any purpose, except to sustain the only allegation of the answer referring to it — that the violent act of the master was permissible under its provisions.
The contention is made that by the decision in the case of The Osceola, 189 U. S. 158,, 23 Sup. Ct. 433, 47 L. Ed. 760, the Supreme Court has undermined the doctrine that a ship is subject to a lien for damages for neglect of her master to furnish proper care and medical attendance to a seaman injured in her service. Our views concerning that contention have been expressed in the case of The Troop (decided at the present, term) 128 Fed. 856, and we find it unnecessary to add to what is there said.
Nor do we find ground for disturbing the findings of fact of the District Court, before whom the greater portion of the testimony was taken.. They were findings made upon conflicting evidence, and will
The decree of the District Court is affirmed.