| S.D.N.Y. | Dec 11, 1889
The petitioners, of whom five were seamen, and two others government inspectors on the dredge Queen, applied to the court after an interlocutory decree holding the City of Alexandria and the Queen both in fault for the collision between them, (31 Fed. Rep. 427,) to be made co-libelants, in order to recover for their loss of personal effects and for personal injuries. No sufficient reason to the contrary appearing, the application was granted.
1. Personal Effects. Two of the petitioners have given no evidence as to their claims. The others I find lost personal effects of the values following, there being little strict proof, beyond estimates, of actual present value:
2. Personal Injuries. Without proof of some substantial harm, some incapacity for their ordinary work, or some expense incurred, no damages for alleged personal injuries should be awarded to seamen. Without this, the allowance of damages for being thrown into the water, and for alleged fright, would in this class of cases, I think, be specially impolitic
8. The two government inspectors arc entitled to judgment for the full, sums above awarded them. A recovery of the full amount is also claimed for the other petitioners, who were seamen, as against the City ol'Alexandria, although the Queen, on which the petitioners were employed, was also held in fault. Such, doubtless, would be the rule in a common-law action against the City of Alexandria alone, because the common law does not recognize any right of contribution as between wrong-doers. The Bernina, L. R. 12 Prob. Div. 58, 83, 93, L. R. 13 App. Cas. 1, was adjudged as a commoii-lawaction, and on that ground. But the rule in this country is otherwise in admiralty causes when both vessels are before the court. The damage must then be apportioned between the two vessels in fault, The Alabama, 92 U.S. 695" court="SCOTUS" date_filed="1876-05-18" game-cock.""="" href="https://app.midpage.ai/document/the--alabama---the--game-cock-89323?utm_source=webapp" opinion_id="89323" the="">92 U. S. 695; The Hudson, 15 Fed. Rep. 164. Here both vessels arc before the court; the Queen, in the person of the libelant company, which, as the owner, is recovering a large sum for half of her damages. If full damages were recoverable by the seamen, as co-libelants, against the City of Alexandria, the latter vessel, upon the authority of many cases, would be entitled to offset one-bal f that sum against the amount recoverable by the libelant company, as owner of the Queen. The sum payable to the petitioners would be treated just as sums paid by the Citj- of Alexandria for cargo belonging to third persons on board either vessel would be treated. Half that damage would be charged against the Queen, and that would by so much diminish the amount recoverable by the owners of the Queen against the City of Alexandria. The Eleanora, 17 Blatchf. 88" court="None" date_filed="1879-08-28" href="https://app.midpage.ai/document/the-eleanora-8630764?utm_source=webapp" opinion_id="8630764">17 Blatchf. 88, 105; Leonard v. Whitwill, 10 Ben. 658; The Farnley, 8 Fed. Rep. 629; The Bristol, 29 Fed. Rep. 875. If, therefore, the relation of the seamen on the Queen to her owners is such that they have no legal claim for damages against her owners, those owners cannot be required to account for half that claim to the City of Alexandria; nor is the latter vessel on that account to be charged with either more or less than she would otherwise he charged with, viz., one-half the petitioner’s damages; and the petitioners must lose what they are legally disabled from claiming against the Queen or her owners. Bank v. Navigation Co., L. R. 10 Q. B. Div. 521, 538, 546. Buch is the rule that was applied by this court in the case of The City of
It does not appear by whose individual iault the Queen became chargeable. The negligence for which she was held was in having too long a hawser in a dense fog, in a fair-way, and in not giving any whistle or other signal to indicate her presence in a very dangerous place. These faults arose in the details of navigation, — a work for which all the ship’s company were alike employed, in their several grades. As to such details the seamen, as fellow-servants, took the risk of each other’s negligence. The case of Railroad v. Ross, 112 U.S. 377" court="SCOTUS" date_filed="1884-12-01" href="https://app.midpage.ai/document/chicago-milwaukee--st-paul-railway-co-v-ross-91217?utm_source=webapp" opinion_id="91217">112 U. S. 377, 5 Sup. Ct. Rep. 184, was not intended, I think, to. apply to cases like this. The railroad company was there held liable to the engineer because the conductor in determining the running of the train, and time of starting with reference to other trains on the same road, (in directing which the negligence arose,) was held to be acting as the representative of the owner, and not merely as a fellow-servant. But in the case of Quinn v. Lighterage Co., 23 Fed. Rep. 363, the latest maritime case in which the question of negligence in fellow-servants has been discussed in the circuit court of this district, the owners were held not liable, although the negligence by which the libel-ant was injured was the immediate act of the master of the ship, viz., his premature order in setting the winch in motion; because that act was not one that he had done in his character as the representative of the defendant, but was an act that any other co-servant in the same employment might have performed. “The true inquiry,” says Wallace, J., “is whether the character of the act of the captain was one which it was incumbent upon the defendant [the owners] to see properly performed.” The same view is reaffirmed in Railroad Co. v. Herbert, 116 U.S. 642" court="SCOTUS" date_filed="1886-02-01" href="https://app.midpage.ai/document/northern-pacific-railroad-v-herbert-91574?utm_source=webapp" opinion_id="91574">116 U. S. 642, 647, 6 Sup. Ct. Rep. 590.
Applying those cases to the present, the owners of the Queen are not answerable for the seamen’s losses. It would be absurd to say that the owners owed a duty to the seamen that too long a hawser should never be used, or that signals in a fog should be properly given by their own vessel. These details belong to the ordinary work of navigation, and to the men employed to conduct it. As to this work, the owners owe no duty to the officers or seamen to see it properly performed. The duty lies the other way, viz., from the ship’s company to the owners. None of such acts, moreover, belong to the master to do as the alter ego or special representative of the owner, as in the Ross Case. They may be all performed, and for the most part usually are directed and performed, by others than the master. Though there are many acts in the' care and