The City of Carlisle

• Citation: 39 F. 807
• Parties: THE CITY OF CARLISLE. v. THE CITY OF CARLISLE. BASQUALL
• Decision Date: 20 August 1889
• Court: U.S. District Court — District of Oregon

39 F. 807

THE CITY OF CARLISLE.

BASQUALL v. THE CITY OF CARLISLE.

United States District Court, D. Oregon.

August 20, 1889

Syllabus by the Court

The United States courts, as courts of admiralty, have jurisdiction of all cases of admiralty cognizance when the thing or parties are within the reach of their process without reference to the nationality of either.

It is the right of a seaman injured in the service of a vessel to be cared for at least to the end of the voyage, and nothing short of gross negligence or willful misconduct, causing or concurring to cause the injury, will forfeit such right.

A seaman injured in the service of a vessel has a lien on the same for the damages he may sustain by reason of the neglect or misconduct of the officers thereof, in caring for him while affected by such injury.

The admissibility or competency of evidence in a legal proceeding pertains to the remedy, and is governed by the lex fori, and therefore a clause in the British shipping act of 1854 making certain entries in the official log-book competent evidence in all courts, does not make them so in the courts of any other country.

The joinder of causes of suit not enumerated in admiralty rules 12 to 20, inclusive, are not governed thereby, but by rule 46; and, where the facts in a case establish a liability against the master and a lien on the ship for the same claim such liability and lien may be enforced in one libel.

On the facts found, held that the master and vessel are liable to the libelant for damages for not caring for him after his injury as he was entitled to be, and for the aggravation of his injury and suffering caused thereby.

Edward N. Deady, for libelant.

C. E. S. Wood and J. Ditchburn, for defendant.

DEADY J.

William Basquall, a minor, by his guardian, Frederick V. Holman, brings this suit against the British bark City of Carlisle, and her master, C. D. Moore, to recover $15,000 damages, for an injury sustained by him on board said bark, and neglect and maltreatment thereafter.

The charge in the libel is shortly this: In sending the main lower topsail down on one occasion, the work was so carelessly and negligently done as to cause the starboard clew-iron thereof to strike the libelant on the head and fracture his skull; and thereafter the master failed to give or procure for the libelant such medical aid and assistance as the case required, and he 'was able to give and render,' and maltreated and abused him.

The master admits, in his answer, that the libelant was injured as alleged, but avers that the injury was not caused by any negligence or carelessness in lowering said sail, but by the fault and carelessness of the libelant. He denies that he failed to give the libelant such medical aid and attention as the case required, and he was able to give or render, or that he maltreated him or abused him; and avers, in effect, that the libelant was well cared for after said hurt.

Some 36 witnesses were examined,-- 22 by the libelant and 14 by the defendant. Among these were 11 of the officers and crew of the bark, and a number of experts who were called to testify whether or not the sail was lowered in a seamanlike manner.

The evidence from the vessel is, or course, more or less contradictory. Those of the crew who remain with the bark are called by the defendant, while those who have left her are called by the libelant.

The master, mate, second mate, steward, and two apprentices, who are in the last year of their service, testify for the vessel, while the cook, sailmaker and two apprentices, including the libelant, and a stowaway boy, testify for the libelant.

In weighing this evidence, I am constrained to believe that the master is not worthy of credit, and his testimony is of but little worth. The mate, George Dodd, impressed me favorably as a man. But he has been with his present employers, as man and boy, for a number of years, and may reasonably expect employment from them, in the near future, as a master. Under these circumstances he is strongly tempted to make as good a case as he can for the vessel, which I think he has done, without going so far as to tell a downright falsehood. But he does not always remember when I think he might.

John A. Bebb is an apprentice in the service of the vessel's owners. He has only eight months more to serve, when, if he remains with the ship, he may be examined for a mate's certificate. I think he made up his mind that he could not testify against the ship, and go home in her with safety and comfort to himself. I am convinced that he gave altogether a different account of the matter to the libelant's attorney, when he may not have though that he would be called as a witness, from that which he gave on the witness stand. It was indeed pitiful to see the confusion and shame on the poor fellow's face as he tried to deny or explain his former utterances.

Of the rest of the crew that remain with the bark, Harry Hart, the second mate, Thomas Noble, the steward, and George Eggert, an apprentice, nothing more need be said than this: that in giving their testimony they probably did not forget that the master had it in his power to make them very uncomfortable during the remainder of the voyage, which circumstance ought not to be overlooked in estimating the value of their evidence.

The libelant is largely interested in the result of the suit. Therefore his testimony ought to be received with caution, if not distrust. But he appears to be a simple, honest lad, and I seldom, if ever, heard one in his walk in life, or any other, testify with more apparent candor and artlessness than he did. The same may properly be said of the other three boys who testified for him, Henry Carley, the stowaway, William J. Freer, an apprentice, and Lawrence Ainsworth, an apprentice left in this port by a British vessel some months ago, and a former shipmate of the libelant in a training vessel at Liverpool.

Estimating the evidence in the light of these suggestions, I find the facts as follows:

(1) The libelant, a native of Dublin, whose parents reside at Stockport, Cheshire, having served two years and four months in the training ship Indefatigable, at Liverpool, was on September 22, 1888, at the age of 16 years, with the consent of the officers of said ship, voluntarily apprenticed to Peter Iredell & Sons, of Liverpool, for the term of four years, to learn the business of a seaman, and thereupon he was duly shipped on the bark City of Carlisle, a vessel of 204 feet in length and 37 feet beam, then and now owned by said Iredell & Sons, to serve thereon as such apprentice on a voyage from Liverpool to Portland, Or., and thence elsewhere on the Pacific coast, and back to a port of discharge in the United Kingdom.

On Monday, November 12, 1888, at 8 o'clock A.M., in latitude 24.19 S., and longitude 37.15 W., and about 6 deg. or 332 geographic miles east of Rio Janeiro, it being the first mate's watch on deck, in which were the libelant and Carley, it was determined to change the lower main topsail for a heavier one, as they were getting out of the tropics, whereupon the mate gave directions to prepare the sail to be lowered on deck, which was done by a seaman and the libelant and Carley, the latter two of whom cut the robands or ropes that fastened the head of the sail to the yard, and then returned to the deck.

Under the direction of the mate the sail was clewed up or the lower corners brought up to the yard at the bunt or middle of the sail, by means of the clew-lines, the buntlines or ropes used to pull up the sail were hauled, a gantline or rope used to lower the sail was rove through a block on the crosstrees and sent down and bent around the sail and hauled taut; then the sheets and clew-lines were taken off, the earnings loosed, the robands cut, and the head earnings brought into the gantline and then made fast, and then the sail was lowered.

The clews when hauled up were not stopped or fastened together, and, when the clew-lines were detached from the clew-irons, the clews or lower corners of the sail fell down loose on either side of the gantline. At this time there was from a four to a six knot breeze on the starboard quarter, and the yard was braced so as to let the sail down on the port or lee side.

Before and at the time the sail was being furled and lowered the master was on the port side of the poop overlooking the sailmaker who was preparing the sail to be sent aloft in the place of the one coming down. The libelant was standing on the starboard side of the vessel, just forward of the main hatch, and Carley was standing on the port side of the poop, assisting the sailmaker.

In lowering the sail the ship rolled, and the starboard clew got foul of the mainstay, and the mate thinking it would clear itself-- be pulled over the stay by the weight of the descending sail, to the port side-- allowed it to lower until he feared that if it did clear itself the clew-iron would hit the deck and mar it, when he sang out, 'Hold on the gantline,'-- the rope with which the sail was being lowered,-- and sent the man then aloft down the mainstay to clear the clew. Before the man went down the stay the mate sang out, 'Stand clear,' and just before the clew was let go-- passed over to the port side of the stay-- he said, 'Look out there.'

As the clew was being cleared from the stay the master called to Carley to tell the libelant to come aft, where he wanted him to help the sailmaker. Carley went forward on the port side of the vessel, and told the libelant the master wanted him. The latter started aft immediately, going quickly across the main hatch in a diagonal direction, and as he reached the after corner of the same, on the port side, the clew of the sail...