21 F.2d 313 (2nd Cir. 1927), 372, The Federal No. 2

Docket Nº:372.
Citation:21 F.2d 313
Party Name:THE FEDERAL NO. 2.
Case Date:July 25, 1927
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 313

21 F.2d 313 (2nd Cir. 1927)


No. 372.

United States Court of Appeals, Second Circuit.

July 25, 1927

Barry, Wainwright, Thacher & Symmers, of New York City (James K. Symmers and John C. Crawley, both of New York City, of counsel), for appellant.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (William H. Arnold, of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

MANTON, Circuit Judge.

On August 16, 1924, a seaman employed by the appellant was aboard the barge Glooscap. He was injured while on deck, due to a towing hawser sweeping the deck, through appellee's negligence, and coming in contact with him. He was removed to the United States Marine Hospital, where expenses were incurred for his maintenance and cure and paid for by the appellant. The libel is filed for reimbursement of this expense, and also for injury to the barge, which subsequently came in collision with the Federal Tug No. 2. Each claim is set forth in a separate cause of action.

The sole question presented on this appeal is whether the appellant may maintain the action for hospital expenses incurred in an endeavor to cure the seaman of his injury. In The Hanna Nielsen, 273 F. 171, we pointed out that the right of a seaman to cure is not contractual only, but depends upon the law of the flag, and that the court may not take judicial notice of the foreign law. But the libel sets forth that the appellant is a Canadian corporation. While there is no express allegation that the law of Canada imposes an employer's liability to render maintenance and cure to seamen, still, with allegations of the seaman's injury, the service of this ship, owned by a Canadian corporation, and the further statement that, as the employer of the seaman, Parr, the libelant became obliged to pay, we will assume for the purpose of this opinion, that the Canadian law imposed the obligation claimed (Liverpool, etc., Steam Co. v. Phoenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788), and proceed to consider the issue presented.

The appellant's claim, as alleged, is based upon the theory that the tug was a proximate cause in a chain of causation resulting in the damage. The seaman was cared for in the United States Marine Hospital, and because he was under contractual relations with the appellant as a seaman it was obliged to pay the bill. The basis of the claim is that the negligence resulting in injury to Parr gave rise to the occasion which required or obliged the appellant to pay the hospital bill. Even though one causes injury to another, to impose responsibility therefor contemplates a violation of a legal duty. The tug owed no legal duty to the appellant with reference to its contractual rights with the seaman. No principle of subrogation of rights is involved. The seaman had a cause of action...

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