TROPICAL FRUIT S. S. CO., Limited, v. TOWLE, 222 F. 867

PARDEE, Circuit Judge (after stating the facts as above). The evidence is taken as fully proving the facts alleged in the third paragraph of the libel, and yet we are constrained to deny the libelant relief. The matters complained of arose on a vessel practically on the high seas, and thus within the admiralty jurisdiction, and the responsibility of the ship must be determined according to admiralty law and usages. In The Osceola, 189 U. S. 158, 23 Sup. Ct. 483, 47 L.

Ed. 760, the Supreme Court discussed at length the extent of recovery in admiralty allowed for an injury to seamen received on a vessel, and therein announced the following propositions as the settled law of England and this country: “1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued. “2.

That the vessel and her owner are, both by English and American law, Hablo to an indemnity for injuries received by seamen in consequence of the ««seaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. * * * “3. That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure. “4.

That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident.” The libelant injured in this case received all the medical care and attention his case required, and his wages were continued, and he makes no claim in that respect. There is no contention but that the Cartago was in all respects seaworthy.

The barrel or cylinder containing oil that was improperly and insecurely placed or left carelessly upon or near the deck of the vessel near the hatch, which caused the injury received by the libelant, was so placed or left through the negligence, of other members of the crew for which the ship is not liable. The Osceola has been followed and applied in cases similar to the one under consideration in many instances. See City of Alexandria (D. C.) 17 Fed. 390, in which Judge Brown said: “In effect, tlie maritime law makes no account of more ordinary negligence in suck cases.

More or less negligence is in fact to be expected, and the rules Jong established, as regards the relief to be afforded, are irrespective of such negligence, whether by the seamen or others. When the owners perform all that can be reasonably done on their part by the proper equipment of the vessel for the voyage and the selection of competent officers and a sufficient crew, no reason exists in natural justice for holding them or their vessel answerable for the accidents to seamen, which happen during the voyage, beyond the limits which the maritime law has established.” See, also, Olson v.

Oregon Coal & Navigation Co., 104 Fed. 574, 44 C. C. A. 51, in which it is held that a ship could not be held liable for injuries received by a member of the crew falling through a hatchway negligently left open. In The Drumelton (D. C.) 158 Fed. 455, it is said: “According to libelant’s” plea a tank “engine cover fell upon him because proper lashings, although provided, had not been made fast. If this be true, he is certainly not entitled to any recovery under the fourth statement of law in The Osceola.” And see The Nyack, 199 Fed. 383, 118 C. C. A. 67; also The Santa Clara (D. C.) 206 Fed. 179.

The proctor for libelant contended in the lower court, and contends here, that The Osceola Case and other decisions cited were inapplicable because of the provisions of

article 3237 of the Civil Code of Louisiana, as follows: “The following debts are privileged on the price of ships and other vessels, in the order in which they are placed: * * * “12. Where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect or want of skill in the direction or management of any steamboat, barge, flatboat, water craft or raft, the party injured shall have a privilege to rank after the privileges above specified.” The Osceola, supra, fully answers this contention. In that case in discussing a similar statute of Wisconsin, Mr.

Justice Brown, speaking for the court, said: “The statute was doubtless primarily intended to cover cases of collision with other vessels or with structures affixed to the land, and to other cases where the damage is done by the ship herself, as the offending thing, to persons or property outside of the ship, through the negligence or mismanagement of the ship by the officers or seamen in charge. To hold that it applies to injuries suffered by a member of the crew on board the ship is to give the act an effect beyond the ordinary meaning of the words used.

Would it apply, for instance, to injuries received in falling through an open hatchway? Or to a block blown against a seaman by the force of the wind, though the accident in either case might have resulted from the negligence of the master? We think not.” The case of Carter v. Brown, 212 Fed. 393, 129 C. C. A. 69, cited by the libelant, is easily distinguishable from the case at bar.

That was a suit in personam against the owners of the steamboat Queen of the Bend, a coast packet running from one part of Louisiana to another, to recover damages by the libelant while employed as a laborer thereon by the falling of certain sacks of sugar. The court found that Carter, the master and one of the owners, had actual knowledge of the method adopted for piling the sacks, and either directed or acquiesced therein. In other words, there was personal negligence on the part of the owner.' The decree of the District Court is reversed, and the cause is-remanded, with instructions to dismiss the libel.