The Lizzie Frank

• Decision Date: 05 July 1887
• Citation: 31 F. 477
• Parties: THE LIZZIE FRANK. v. THE LIZZIE FRANK and Owner. HURLEY
• Court: U.S. District Court — Southern District of Alabama

31 F. 477

THE LIZZIE FRANK.

HURLEY v. THE LIZZIE FRANK and Owner.

United States District Court, S.D. Alabama.

July 5, 1887

Hannis Taylor, for libelant.

R. H Clarke, for claimant.

TOULMIN J.

The libel in this case is filed by a seaman to recover damages for personal injury while in the performance of his duty on board of the tug-boat Lizzie Frank. The libel avers that the cause of the accident from which the injury resulted was the imperfect, insecure, and negligent manner in which a certain appliance or part of said boat, used in towing and designated as the 'chock,' was fastened; that such insecure fastening was a defect in the structure and equipment of said tug; and that it broke from its insecure fastening, and struck the libelant, doing him serious bodily injury. It is averred that the injury complained of was through negligence or fault, etc. The claimant says, in answer to the libel that the tug was equipped with all the apparatus and appliances that men of ordinary skill and prudence, engaged in the same business, provide their tug-boats with; that respondent used due diligence that the same should be of sufficient strength and durability to stand the strain necessarily put upon them in the performance of such work as the vessel undertook to do; and that the strain put upon the chock in the particular instance was not more than it could have been reasonably expected safely to bear. Respondent denies that the chock was fastened in an insecure, imperfect or negligent manner; and says the accident was caused by some latent defect or weakness in the wooden frame of the vessel, to which the chock was fastened, and which was unknown to him, and to his employes in charge of the vessel, and could not have been discovered by them by the exercise of reasonable diligence and care. He denies that the injury resulted from any negligence or fault of himself or his agent, and avers that libelant was guilty of gross negligence in placing himself in the position where he was when he received the injury complained of, and that he was not required by his duty to be there.

If the libelant was guilty of gross negligence, as is alleged by respondent, and respondent was free from fault, then the libelant could recover nothing in this case. The proof shows that libelant was inexperienced in his position, had been but a short time aboard of the vessel, and had never before his employment on this vessel been engaged in a similar service. If his position at the time of the accident was a dangerous one, it does not appear that it was known to him to be so, or that he had any special reason to apprehend danger there. When he accepted the employment, he had a right to presume that the appliances in use on the vessel were reasonably sufficient and secure. I do not think the libelant, under the circumstances, was guilty of negligence, as is claimed by respondent.

Was there any negligence on the part of the owner of the vessel, or of his employes? Negligence is the failure to do what a reasonably prudent man would ordinarily have done under the circumstances of the situation. The owner of this vessel was required to use and exercise in its construction and equipment the usual and customary means and care adopted by reasonably prudent persons in the construction and equipment of vessels of like character. If that was not done by the owner and his agents, such failure would be negligence, and, if the libelant was injured thereby, the owner would be liable for the damages. Sunney v. Holt, 15 F. 880. But if the vessel was constructed and equipped with reference to the chock, and the chock was fastened in the manner and mode that was usual and customary with other vessels of like character, and in a mode fully approved by competent judges and by previous experience, then there was no negligence or fault on the part of the owner. The Harold, 21 F. 428; The Rheola, 19 F. 926.

The proof satisfies me that, in all the details of the work with reference to the chock, the vessel was constructed and equipped, and the chock secured, in the usual and customary manner at this port, and in the manner approved by competent judges, and by previous experience. I find, therefore, no negligence or fault on the part of the owner of his agents, and that the allegations of the libel are not sustained in this respect. While the libel alleges negligence, the contention in the argument of libelant's proctor is that in the contract of hiring there was an implied warranty of seaworthiness of the vessel by the owner; that the breaking of the chock was the breaking of the ship in a vital part,-- 'the result of an inherent defect;' and that was evidence of unseaworthiness; and it is contended that, if the vessel was unseaworthy, there was a breach of the implied warranty; and that, the libelant's injury resulting therefrom, the owner is answerable for the damage occasioned by the defect.

Assuming for the present, that there was an implied warranty of seaworthiness, and that there has been a breach of such warranty by the breaking of the chock, it would not necessarily follow that the owner was guilty of negligence. A breach of warranty, express or implied, is a breach of a contract, express or implied, and a party damaged by such breach of contract would have his action ex contractu, and it would be immaterial whether the breaking resulted from negligence or not. There may be a breach of warranty without negligence. On the other hand, if the damage is claimed to have resulted from negligence, then the action is ex delicto, based...