The A. Heaton
| Decision Date | 09 September 1890 |
| Citation | 43 F. 592 |
| Parties | THE A. HEATON. |
| Court | U.S. District Court — District of Massachusetts |
T. J Morrison, for petitioner.
George M. Reed and M. J. McNeirney, for claimants.
Before GRAY, Justice, and COLT, J.
The schooner A. Heaton having been sold by order of the district court for $2,150 upon a libel for seamen's wages, and about $1,500 of the proceeds of the sale remaining in the registry of the court, after payment of such wages and costs Julius Hanson filed a petition, in the nature of a libel in rem, to recover damages for injuries sustained, while serving as a seaman on board the schooner on her last voyage, by reason of the negligence of her master and owners in not providing a suitable gasket for the foresail. The district court held that the petitioner was entitled only to his expenses in the hospital, which had been paid by the owners and to his wages to the end of the voyage, with interest from the return of the vessel, and entered a decree accordingly and he appealed to this court.
The petitioner shipped as an able seaman, at Gloucester, in this district, for a voyage to the British provinces, and thence to the Mediterranean, and back to a port of discharge in the United States, on the A. Heaton, a three-masted schooner, carrying a square foresail, the method of furling which was by sliding it along the yard, and making it fast to the mast with brails, and winding gaskets around it to avoid bagging between the brails. On the third day out from Gloucester, the petitioner was ordered aloft to take part in furling the foresail, and in performing that duty was obliged to let himself down from the yard, holding the sail between his knees, and the gasket in his hands; and, while he was so compressing the sail and winding the upper gasket around it, the gasket broke, and he fell to the deck, whereby his left hip and left arm were fractured, and he was permanently disabled from pursuing any calling requiring bodily exertion. The accident happened by reason of the defective condition of the gasket, which by long use had become rotten and weak, and the petitioner had no notice or knowledge of its condition until it gave way in his hands. There being no evidence of any negligence on his part, we have no occasion to consider how far such negligence, if proved, might affect his right to recover. The gaskets are a part of the rigging, which requires frequent renewal at sea. There was plenty of spare rope on board, which it was the duty of the master to use in keeping the rigging in repair; and there is no evidence that the owners sent the vessel to sea in an unseaworthy condition, or were themselves negligent, either in the selection of a master or otherwise. This petition cannot, therefore, be maintained on the ground of actual personal negligence of the owners.
But it is equally clear to our minds that the accident was caused by the master's gross, not to say reckless, neglect of the duty which he owed to the crew under his command and care. The mate distinctly and positively testified that before the accident, having been up in the rigging and examined the gaskets, he reported to the master that the gaskets, and especially the upper one, were in poor condition, and in want of repair; and that the master replied 'that it lasted the last voyage and he thought it would do this, and that he did not intend to spend much on it, but run it as cheap as he could, because on his return to the United States he would be off, and the ship sold. ' The words attributed to the master by the mate are in accord with the subsequent action of owners in allowing the vessel to be sold to pay the wages of the crew. Although the master, on his direct examination by the counsel for the owners, testified that he did not recollect any such conversation, yet on cross-examination he admitted that it might be that the mate had called his attention to the defective condition of the gasket, and it had slipped his mind. And the master professed equal forgetfulness of other circumstances attending the accident, and especially of the fact, proved by the concurring testimony of the mate, the petitioner, and three of the four other seamen on board, that the petitioner, when he fell, held up the broken gasket, and cried out, 'Captain, this is your fault.' Taking all this into consideration, the master's want of recollection, whether real or assumed, the previous notice to him of the defective condition of the gasket, raises no doubt of the truth of the distinct and positive testimony of the mate upon that point.
The case is thus resolved into the question of law, whether a seaman, permanently injured in the performance of his duty on ship-board, in consequence of the negligence of the master in not keeping a rope in proper condition and repair, can maintain a libel in admiralty against the ship to recover damages for the injury, beyond his wages to the end of the voyage and the expenses of his cure, so far as the injury is susceptible of cure. This question, both as to the jurisdiction and as to the merits, appears to us to be substantially determined by the decisions of the supreme court. In England, indeed, it appears to be unsettled whether a libel in rem can be maintained in admiralty for a personal injury. But on principle, as observed by a recent English writer, it would seem difficult to deny the justice of the view that personal injuries inflicted by a ship might confer a maritime lien, or to formulate a satisfactory reason why damages occasioned to a man's property should give rise to rights of a higher nature, or be the subject of a more effective remedy, than an injury occasioned under the same circumstances to his person. 4 Law Quar.Rev. 388. In this country, it has been established by a series of judgments of the supreme court of the United States, that a libel in admiralty may be maintained against the ship for any personal injury, for which the owners are liable under the general law and independently of any local statute; accordingly passengers have often maintained libels, as well against the ship carrying them as against other ships, for personal injuries caused by negligence for which the owners of the ship libelled were responsible. The New World, 16 How. 469; The Washington, 9 Wall. 513; The Juniata, 93 U.S. 337; The City of Panama, 101 U.S. 453, 462. The sixteenth rule in admiralty, which directs that 'in all suits for an assault or beating upon the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only,' does not affect libels for negligence. It was argued...
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