LAFOURCHE PACKET CO. v. HENDERSON, 94 F. 871

After stating the facts, the opinion of the court was delivered by PARDEE, Circuit Judge. The first assignment of error is too general to warrant attention, but it is the only one to cover the point sought to be raised, — that, while the district court, sitting in admiralty, had jurisdiction of the demand, yet the libelant had no right to proceed in rem, because he had no maritime lien on the ship, nor any lien under the domestic law for damages resulting from his personal injuries, as set forth in the libel.

In the district and circuit courts in this circuit, it has never been seriously disputed that, under the general admiralty practice, a seaman who is injured through the use of defective appliances furnished by the owners of the ship has a right to proceed against Uie ship to recover liis damages. Several cases of the kind have been brought to this circuit court of appeals since its organization, and the jurisdiction to proceed in rem has been taken for granted. The Whisper, 2 U. S. App. 618, 4 C. C. A. 654, and 54 Fed. 896; Johnston v. Johansen, 30 C. C. A. 675, 86 Fed. 886.

The right of other persons than regular seamen, employed on a ship, to proceed in rem to recover damages for personal injuries, has been tacitly recognized in all the courts of the United States, and has been affirmatively recognized in The Christobal Colon, 44 Fed. 803, decided in the Eastern district of Louisiana; and there may be other cases to the same effect. We know of none to the contrary. The precise question now presented is not necessarily raised on this appeal, because the domestic law gives the libelant a lien and privilege.

The Lafourche was owned in Louisiana, and was running from New Orleans to various places through Louisiana waters; and the injuries complained of were suffered on .Bayou Lafourche, in the state of Louisiana.

Article 3237 of the Louisiana Revised Civil Code provides 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, barg(\ flatboat, water craft or raft, the party injured shall have a privilege to rank after the privileges above specified. * * ®” The second assignment raises the question whether the injuries to the libelant were caused by any negligence or fault on the part of the ship.

As recited in the statement of facts, it is undisputed that the libelant received his injuries while in the line of his duty, and while using with his fellow servants a broken skid, and that the skid so used had for some time been broken, on or before a prior voyage, and its condition was known to the officers of the ship.

T'he evidence of the libelant and his witnesses is to the effect that, through the sagging of one side of the skid on which side the hook was broken, a bolt worked up about the middle or belly of the skid, which caught tiie barrel then being sent down into the hold, cut one of the hoops, and otherwise threw it off the skid, resulting hi the libelant’s injury. John Williams, the witness who testified the clearest on this poini, was the man who placed the barrels upon the skid, starting them down the hold. His evidence is so pointed that we extract as follows: “Q.

Bo you know what the cause was of that barrel twisting around on that skid? A. When the barrel twisted around on Hie skid, and this man hollered, I went down in the hold to assist him; and when I went down in. the hold to assist him 1 looked on the side of the skid, and I saw there was a holt just about that high up, — that had risen up about an inch, — and the hoop of the Darrel had struck it, and the hoop was cut plumb in two. Q. Was it proper for that holt to be extending up over and above the side of the skid? A. No, sir. Q. What was the cause of the bolt extending up that way? A.

The skid was broken one side. It had only one prong, whereas it should have had two. One was broke', and they were fixing the skid with a block, — working the skid with a block. It was put underneath the skid, and It would slip out, and that would make this bolt work up. Q. Whose duty was It to pay attention to those blocks? A. Most any that was in the hold. Q. What blocks were they? A. They were little, short blocks, put under the skid to keep It from sliding up. Q. Pieces of ‘plunder,’ they call it on the boat? A. Yes, sir. Q. You say this bolt bad worked up through there? A. Yes, sir. Q.

To your mind, was the working up of the bolt the cause of the catching- of this barrel and throwing the barrel off? (Objection is urged, being a matter of opinion.) A. Yes, sir. Q. . Was there any other thing present, or the skid in any other condition, that could have brought about that result, except the fact that this skid was broken, and blocks put under it? A. The skid was broken on the side, and it was kept propped up with these blocks; and, when these blocks slipped out, it let the •skid down, and that would make this bolt jump up. Q.

Do you know whether a complaint was made to the carpenter about the condition of that skid? A. Yes, sir; I made it myself. Q. When? A. While the boat was coming down Bayou Lafourche. Q. What did you tell this carpenter? A.. I said that the skid ought to be fixed, — it was mighty dangerous, — and he told me it was none of my business. * * * Q. .After Henderson got hurt, was any more barrels put down on that side? A.

Yes, sir; I went down and shoved the block down underneath the skid, and took a long piece of iron and drove the bolt back; and the next man that took his place, cutting- off the barrels, I told him to be particular of that block underneath, and whenever it got loose to let me know, and I would stop the work so that he could put it underneath again. * * * Q. They didn’t put anybody down there to look after the blocks, then? A. No, sir. Q. I speak about this block underneath the skid. A. That was his business, but he didn’t know it. No one didn’t tell him about it. That was his first trip on the boat.

He thought the skids were in proper shape. He didn’t pay any attention to the blocks at all. Q. No one had warned him about the defective condition of the skid? A. No, sir. * * * Q. You said something awhile ago about a bolt that was in the skid, — -about a catching on this hoop of the barrel and cutting it. Where was that bolt? (Objection is urged to this examination, nothing about which has been brought out on the cross-examination.) A. The swagging of the broken part— When the block would slip out, it would swag this way, and make the bolt rise up on the right-hand side. Q.

About .how far down the skid was this bolt? A. It was about middle ways. Q. Bach side of the skid consists of several pieces of wood bolted together. Now, this bolt was one of the bolts that belonged to the skid? A. It was one of the bolts that held the band on the skid. Q. About how far down?" About the belly of the skid? A. About middle ways of the skid. Q. You spoke about the hook being broken. That allowed the skid to swag? A. Yes, sir; and it made the bolt rise up. Q. And that made the bolt down in the belly of the skid work up? A.

Yes, sir.” Williams’ evidence is corroborated by Ms fellows, and is not disputed by facts testified to by any of the claimant’s witnesses. The contention of the appellants is that the libelant was injured through the negligence of a fellow servant in placing barrels on the skid, and that the broken hook of the skid cut no figure in the matter.

This contention has no support in the evidence, because the persons who were engaged in placing the barrels on the skid directly deny it, — deny that any were improperly placed on the skid, — and there is no evidence whatever to show that the one .barrel wMch injured the libelant was improperly placed upon the skid. Some argument is made in the brief as to the character of libel-ant’s witnesses, but, from an inspection of the record, we are unable to "see that they were any less intelligent or more prejudiced than those witnesses offered by the claimant.

The result, to our minds, on all the evidence, is the firm conviction that the libelant received his injuries through the use of the broken skid, which was an insufficient and defective, if not actually dangerous, appliance furnished by the ship. Under the third assignment of error the appellant contends that if thé skid was broken and-defective, and the libelant was injured in using the same, still he cannot recover, because the defect was patent, and be knew it, or ought to bare known it, from contact with and observation of it, and in continuing to use the same be accepted the risk.

The learned counsel, in a very strong brief, supports (his contention by the citation of text-books and adjudged cases in the common-law courts, — particularly citing Bailey, Mast. Liab. pp. 198, 199; Way v. Railroad Co., 40 Iowa, 341; Sullivan v. Manufacturing Co., 113 Mass. 398; McGlynn v. Brodie, 31 Cal. 380; Hayden v. Manufacturing Co., 29 Conn. 548; Wormell v. Railroad Co., 79 Me. 405, 10 Atl. 52, in which last-mentioned case it is declared as follows: “It is tlie duty of the servant to exercise care to avoid injuries to himself.

He is under as great obligation to provide for his own safety from such damages as are known to him, or are discernible by ordinary care on his part, as the master is Lo provide for him. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work where there is danger. He must inform himself. • This is the law everywhere.” Without discussing or disputing the law as declared in the authorities menlioned, we are of opinion that it is not applicable to tbe case in hand.

There must be a different rale as to the risks assumed by seamen on board ship from the rule as to the risks assumed by servants and other employes on land. Curtis on the Rights and Duties of Merchant Seamen (page 11) says: “The contract of hire for marine service belongs in general to the entire class of contracts for the hire of services, but it also involves, and is governed by, principles peculiar to itself, and which carry It, In very important particulars, beyond the rules applicable merely lo contracts of service upon land.

Thus, by the common law of England and of this country, when a man lets himself to hire, and neglects or refuses to fulfill Ms engagement, he cannot be compelled to perform it by any restraint put upon the freedom of his person. The remedy of the other party is. solely in the damages he may recover for breach of the contract. The same principle prevails in the civil law (‘nemo potest proecise cogí ad factum’), and (he same remedy only is afforded to the injured party. But by the law of most countries the mariner’s contract is an exception to this general principle.

By the French ordinance, the seaman who fails to render himself on board according to this contract can bo pursued and arrested wherever he is found, and constrained to complete his engagement. The same provision for his apprehension and compulsion is ma.de in England and in this country. There is also another peculiarity of this contract, in which it differs from other contracts for the hire of services.

It is the only form of service stipulated lo be rendered by a freeman of full age, known to the common law, in which file employer, by his own act, can directly inflict a punishment on the employed for neglect of duty or breach of obligation. By ilie positive law of some countries, also, and perhaps by the general la.w of the sea, the seamen are bound to assist, at the risk of their lives, in defending the ship against pirates; and a refusal to fight is punished criminally. Such is the law of France and of England.

All these peculiaiities of the contract are founded in deep reasons of policy and necessity; and, although they do not give a character to this service which takes it out of the general rules and principles applicable to the whole class of contracts for the hire of services, they are important to be stated at the outset, as the prominent features of distinction, reminding us that those general rules and principles will sometimes fall far short of satisfying the exigencies of a contract so strongly marked by principles of its own.” "In Robertson v. Baldwin, 165 IT. S. 275, 282, 17 Sup.

Ct. 329, tbe supreme court say: “From the earliest historical period the contract of the sailor has been treated as an exceptional one, and involving to a certain extent the surrender of his personal liberty during the life of the contract.

Indeed, the business of navigation could scarcely be carried on without some guaranty, beyond the ordinary civil remedies upon contract, that the sailor will not ddsert the ship at a critical moment, or leave her at some place where seamen are impossible to be obtained, —as Molloy forcibly expresses it, ‘to rot in her neglected brine.’ Such desertion might involve a long delay of the vessel while the master is seeking another crew, an abandonment of the voyage, and in some cases the safety of the ship itself.

Hence the laws of nearly all maritime nations have made provision for securing the personal attendance of the crew on board, and for their criminal punishment for desertion or absence without leave during the life of the shipping articles.” A seaman aboard ship is bound to perform -such services as may .be required of him in tbe line of his employment. He cannot hold back and refuse prompt obedience because he may deem the appliances faulty or unsafe. Masters of ships exercise large powers, and they may legally compel obedience to orders.

A seaman necessarily surrenders much of his personal liberty and freedom of action, and he is never at liberty, like the landsman, to quit or malte much objection to the circumstances surrounding the work commanded. Tn Johnson v.

Johansen, supra, which was a case in many respects similar to the one in hand, in answer to' the same objection as the one now made, this court said: “It may be, as urged so strongly by the appellant, that the libelant received these appliances and proceeded to use them without objection; but, if this be so, it must be considered that on board ship a sailor is not expected to, hor, as for that matter, permitted, before executing an order, to question the propriety of the order, or the sufficiency of the materials- furnished.” The remaining assignment of error is that the damages allowed by the district court are excessive.

Considering the very serious injury received by the appellant, in the breaking of both bones in the leg, his physical suffering, and the neglect he received from the hands of the officers of the boat, and the undisputed fact that the libelant is permanently injured, and greatly damaged in his earning capacity, we are not disposed to disturb the amount allowed by the district court. No case is made for the division of damages because of contributory negligence. The decree appealed from is affirmed.