189 U.S. 158 (1903), 98, The Osceola

Docket Nº:No. 98
Citation:189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760
Party Name:The Osceola
Case Date:March 02, 1903
Court:United States Supreme Court

Page 158

189 U.S. 158 (1903)

23 S.Ct. 483, 47 L.Ed. 760

The Osceola

No. 98

United States Supreme Court

March 2, 1903

Argued December 2, 1902

CERTIFICATE FROM THE CIRCUIT COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

Syllabus

1. The law both in England and America is settled as to the following propositions:

(1) That a 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 owners are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship or a failure to supply and keep in order the proper appliances appurtenant to such 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 from negligence or accident.

2. Section 3348, Rev.Stat. of 1898 of Wisconsin, providing that every ship, boat or vessel used in navigating the waters of that state shall be liable for all damages arising from injuries done to persons or property thereby, and that the claim therefor shall constitute a lien upon such ship, boat or vessel, is confined to cases where the damage is done by those in charge of a ship, with the ship as the "offending thing." Cases of damages done on board the ship are not, within the meaning of the act, damages done by the ship. Such statute does not create a lien which can be enforced

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in rem for injuries received by a seaman by the falling of a gangway, resulting as alleged from the master negligently ordering the same to be hoisted while a headwind was blowing.

This was a libel in rem filed in the District Court for the Eastern District of Wisconsin in admiralty against the propeller Osceola to recover damages for a personal injury sustained by one Patrick Shea, a seaman on board the vessel, through the negligence of the master.

The case resulted in a decree for the libellant, from which an appeal was taken by the owners to the circuit court of appeals, which certified to this Court certain questions arising upon the following statement of facts:

The owners had supplied the vessel with a movable derrick for the purpose of raising [23 S.Ct. 484] the gangways of the vessel when in port, in order to discharge cargo. The appliance was in every respect fit and suitable for the purpose for which it was intended and furnished to be used, and at the time of the injury was in good repair and condition. The gangways which were to be raised by the derrick were each about ten feet long lengthwise of the ship, about seven feet high, and weighed about 1,050 pounds. In the month of December, 1896, the vessel was on a voyage bound for the port of Milwaukee, and when within three miles of that port, and while in the open lake, the master of the vessel ordered the forward port gangway to be hoisted by means of the derrick, in order that the vessel might be ready to discharge cargo immediately upon arrival at her dock. At this time, the vessel was proceeding at the rate of eleven miles an hour against a head wind of eight miles an hour. Under the supervision of the mate, the crew, including the appellee, Patrick Shea, who was one of the crew, proceeded to execute the order of the master. The derrick was set in place to raise the gangway. As soon as the gangway was swung clear of the vessel, the front end was caught by the wind and turned outward broadside to the wind, and by the force of the wind was pushed aft and pulled the derrick over, which, in falling, struck and injured the libellant. The negligence, if any there was, consisted solely in the order of the master that the derrick should be used, and that the gangway

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should be hoisted while the vessel was yet in the open sea, when the operation might be impeded and interfered with by the wind. The mate and the crew, in executing the orders of the master of the vessel, acted in all respects properly, and were guilty of no negligence in the performance of the work. The libel charged negligence upon the owners of the vessel in "requiring and permitting the work of unshipping said gangway to be done while the said vessel was at sea and running against the wind." The owners were not present upon the vessel, nor was the master a part owner of the vessel. It is contended that the vessel and its owners are liable for every improvident or negligent order of the captain in the course of the navigation or management of the vessel.

The questions of law upon which that court desired the advice and instruction of the Supreme Court are --

First. Whether the vessel is responsible for injuries happening to one of the crew by reason of an improvident and negligent order of the master in respect of the navigation and management of the vessel.

Second. Whether in the navigation and management of a vessel the master of the vessel and the crew are fellow servants.

Third. Whether, as a matter of law, the vessel or its owners are liable to the appellee, Patrick Shea, who was one of the crew of the vessel, for the injury sustained by him by reason of the improvident and negligent order of the master of the vessel in ordering and directing the hoisting of the gangway at the time and under the circumstances declared -- that is to say, on the assumption that the order so made was improvident and negligent.

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BROWN, J., lead opinion

MR. JUSTICE BROWN delivered the opinion of the Court.

In the view we take of this case, we find it necessary to express an opinion only upon the first and third questions, which are, in substance, whether the vessel was liable in rem to one of the crew by reason of the improvident and negligent order of the master in directing the hoisting of the gangway for the discharge of cargo, before the arrival of the vessel at her dock, and during a heavy wind. As this is a libel in rem, it is unnecessary to determine whether the owners would be liable to an action in personam, either in admiralty or at common law, although cases upon this subject are not wholly irrelevant.

If the rulings of the district court were correct, that the vessel was liable in rem for these injuries, such liability must be founded either upon the general admiralty law or upon a local statute of the state within which the accident occurred. As the admiralty law upon the subject must be gathered from the accepted practice of courts of admiralty, both at home and abroad, we are bound in answering this question to examine

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the sources of this law and its administration in the courts of civilized countries, and to apply it, so far as it is consonant with our own usages and principles, or, as Mr. Justice Bradley observed in The Lottawanna, 21 Wall. 558, "having regard to our own legal history, Constitution, legislation, usages, and adjudications."

By Article VI of the Rules of Oleron, sailors injured by their own misconduct could only be cured at their own expense, and might be discharged;

but if, by the master's order and commands, any of the ship's company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the cost and charges of the said ship.

By Article 18 of the Laws of Wisbuy,

a mariner being ashore in the master's or the ship's service, if he should happen to be wounded, he shall be maintained and cured at the charge of the ship,

with a further provision that, if he be injured by his own recklessness, he may be discharged and obliged to refund what he has received. Practically the same provision is found in Article 39 of the Laws of the Hanse Towns; in the Marine Ordinances of Louis XIV, Book III, Title 4, Article 11, and in a Treatise upon the Sea Laws, published in 2 Pet. Admiralty Decisions. In neither of these ancient Codes does there appear to be any distinction between injuries received accidentally or by negligence, nor does it appear that the seaman is to be indemnified beyond his wages and the expenses of his maintenance and cure. We are also left in the dark as to whether the [23 S.Ct. 485] seaman in such a case has recourse to the ship herself, or is remitted to an action against the owners.

By the modern French Commercial Code, Art. 262,

seamen are to be paid their wages, and receive medical treatment at the expense of the ship if they fall sick during a voyage, or be injured in the service of the vessel.

Commenting upon this article, Goirand says in his commentaries upon the French Code that

when a sailor falls ill before the sailing of the vessel he has no right to his wages; if he becomes ill during the voyage, and from no fault of his own, he is paid his wages, and tended at the expense of the ship,

and if he is left on shore, the ship is also liable for the expense of his return home, and,

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under Article 263,

the same treatment is accorded to sailors wounded or...

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