The Santa Barbara

263 F. 369 | 2d Cir. | 1920

HOUGH, Circuit Judge (after stating the facts as above).

The general law applicable here we have so recently restated, that further exposition is unnecessary. Hanrahan v. Pacific, etc., Co., 262 Fed. 951, —— C. C. A.-, and Roeblings, etc., Co. v. Erickson, 261 Fed. 986,-C. C. A.-, both filed November 12, 1919.

[1] The reason given below for awarding indemnity — that “the owners failed to supply and maintain in ¿ood working order the pulley and chain in question” — is not sustained by the law applicable to the proven facts. The chains were supplied; whether unseaworthiness would have resulted, had that not been done, is a matter not before us. Whether they should be “maintained,” or retained in the pulleys, and left stretched along the guys contributing weight without strength, while the steamer tossed at sea, is a matter wholly within the discretion of the captain. If that discretion was unwisely exercised, it was at most no more than his personal negligence in handling or mishan- , dling good and proper appliances duly furnished by the owners. As , nothing was defective in fit or material, and everything suggested as proper even by libelant’s proctor, was provided for the ship, we hold that no unseaworthiness was shown.

[2] Whether unseaworthiness in law may not be produced by non-use or misuse of good and sufficient adjuncts to or appliances of a good ship, and whether the resulting condition can give rise to action for indemnity under the doctrine of The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760, are also questions not now before us, because it is plain that libelant, whether properly rated as ordinary seaman or landsman, was set a task not unsuited to his strength, and received (by his owh account) injury solely from overtaxing that strength.

It is certain that the absence of chains or ropes in the blocks contributed to the ship’s capacity to resist the perils of the sea, and therefore made for seaworthiness, rather than the opposite. Their insertion for purposes of cleaning or repair was as simple as it was necessary, and to hold that unseaworthiness arose when cleaning time came, although it had not previously existed, is quite impossible.

[3] Libelant’s injury was peculiarly within the rule as to maintenance and cure. It was proffered, and rejected by libelant. His conduct in leaving the Marine Hospital leaves us without any basis for allowance in his favor. There is some testimony as to his subsequent expenses, but everything that he preferred to procure for himself he might have had without any such expenditure.

Decree reversed, without costs, and cause remanded, with directions to dismiss libel, also without costs.