Lafourche Packet Co. v. Henderson

• Decision Date: 23 May 1899
• Docket Number: 810.
• Citation: 94 F. 871
• Parties: LAFOURCHE PACKET CO. v. HENDERSON.
• Court: U.S. Court of Appeals — Fifth Circuit

94 F. 871

LAFOURCHE PACKET CO. v. HENDERSON.

No. 810.

United States Court of Appeals, Fifth Circuit.

May 23, 1899

On or about March 8, 1898, William Henderson, appellee, was shipped at New Orleans, La., as a seaman in the service of the steamboat Lafourche, for a voyage to Thibodaux, La., in Bayou Lafourche, and return to New Orleans, at the wages of $80 per month and found. The boat made the outward trip with libelant in the service thereof. On the return trip, and while said vessel was lying at a plantation on Bayou Lafourche, the said Henderson, with others of the crew, was duly ordered to go into the hold or hull of said steamboat to aid and assist in storing cargo. Accordingly he proceeded to the place or part of said hull or hold designated, and proceeded in the discharge of the duties required of him. While so occupied and while cargo was being taken on board and stowed in the hull of said vessel, said Henderson was required by the proper officers of said vessel, and the duty assigned him, to stand by the lower end of the skid leading from the main deck down to the floor in the hull, so that, as barrels of sugar skated or 'skidded' into the hold of said boat from the main deck would arrive at a point near, he could 'cut' (turn) them around, for others of the crew engaged thereabout to roll them to the afterpart of the hull for storage. While said Henderson was performing the duties above mentioned, a barrel of sugar was placed on the skid and started on its way down. After this barrel had gotten about half way down, and while traveling with great velocity, it turned around, and, instead of continuing down the skid, it rapidly rolled off over the side; and, before libelant could escape, his left leg was caught by the barrel against a stanchion, and both bones of the leg were broken. To the knowledge of the officers of said steamboat, acquired on a prior trip, one side of the skid was weak, one hook broken off, and the iron facing of the runner broken. After sustaining the injury complained of, libelant was carried up out of the hull, taken aft, and placed on some freight. A doctor came on board and professed to set the broken limb which was then bandaged; and libelant was laid on some stuff spread on the boat's deck, made to answer the purpose of a mattress. Appellant was injured about 4 or 5 o'clock Wednesday afternoon, and from that time until Thursday night he was left on the boat's deck, as above mentioned. When the crew was paid off, his wages were sent down to him. After the trip was concluded, the crew soon left the boat, except libelant who was permitted to lie on the boat's deck in his helpless condition. Some hours after the arrival of the vessel in port, a harbor police officer came on board, and found appellee lying in a helpless condition on deck ascertained from him the nature of his injury, and sent for the Charity wagon, which in due time arrived, and took appellee to the Charity Hospital. All these facts are undisputed. The opinion of the court deals with controverted matters. Because of the injuries sustained, the loss of wages, and the impaired capacity to earn wages, the physical pain, and the neglect of appellee after he was injured, he brought this libel in rem to recover the sum of $3,000. After a hearing of the case, and after a personal inspection of the skid causing appellee's injuries, the court rendered a decree in favor of the libelant for the sum of $2,000. On this appeal, the following are the assigned errors: '(1) That the court erred in holding that libelant was entitled to any compensation for the injuries received; (2) that the injuries complained of in the said libel were not caused by any fault or negligence on the part of the claimant, or any person for whom claimant was responsible; (3) that the defect, if existing at all, was a patent defect, and the risk assumed was one of the assumed risks of the employment, and was known to libelant; (4) that, even if libelant was entitled to any allowance whatever, the allowance granted herein is excessive.'

Hewes T. Gurley, for appellant.

John D. Grace and A. B. Phillips, for appellee.

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

After stating the facts, the opinion of the court was delivered by PARDEE, Circuit Judge.

The first assignment of error is too general to warrant attention, but it is the only one to cover the point sought to be raised,-- that, while the district court, sitting in admiralty, had jurisdiction of the demand, yet the libelant had no right to proceed in rem, because he had no maritime lien on the ship, nor any lien under the domestic law for damages resulting from his personal injuries, as set forth in the libel. In the district and circuit courts in this circuit, it has never been seriously disputed that, under the general admiralty practice, a seaman who is injured through the use of defective appliances furnished by the owners of the ship has a right to proceed against the ship to recover his damages. Several cases of the kind have been brought to this circuit court of appeals since its organization, and the jurisdiction to proceed in rem has been taken for granted. The Whisper, 2 U.S.App. 618, 4 C.C.A. 654, and 54 F. 896; Johnston v. Johansen, 30 C.C.A. 675, 86 F. 886. The right of other persons than regular seamen, employed on a ship, to proceed in rem to recover damages for personal injuries, has been tacitly recognized in all the courts of the United States, and has been affirmatively recognized in The Christobal Colon, 44 F. 803, decided in the Eastern district of Louisiana; and there may be other cases to the same effect. We know of none to the contrary. The precise question now presented is not necessarily raised on this appeal, because the domestic law gives the libelant a lien and privilege. The Lafourche was owned in Louisiana, and was running from New Orleans to various places through Louisiana waters; and the injuries complained of were suffered on Bayou Lafourche, in the state of Louisiana. Article 3237 of the Louisiana Revised Civil Code provides as follows:

'The following debts are privileged on the price of ships and other vessels, in the order in which they are placed: (12) Where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect or want of skill in the direction or management of any steamboat, barge, flatboat, water craft or raft, the party injured shall have a privilege to rank after the privileges above specified. * * * '

The second assignment raises the question whether the injuries to the libelant were caused by any negligence or fault on the part of the ship. As recited in the statement of facts, it is undisputed that the libelant received his injuries while in the line of his duty, and while using with his fellow servants a broken skid, and that the skid so used had for some time been broken, on or before a prior voyage, and its condition was known to the officers of the ship. The evidence of the libelant and his witnesses is to the effect that, through the sagging of one side of the skid on which side the hook was broken, a bolt worked up about the middle or belly of the skid, which caught the barrel then being sent down into the hold, cut one of the hoops, and otherwise threw if off the skid, resulting in the libelant's injury. John Williams, the witness who testified the clearest on this point, was the man who placed the barrels upon the skid, starting them down the hold. His evidence is so pointed that we extract as follows:

'Q. Do you know what the cause was of that barrel twisting around on that skid? A. When the barrel twisted around on the skid, and this man hollered, I went down in the hold to assist him; and when I went down in the hold to assist him I looked on the side of the skid, and I saw there was a bolt just about that high up,-- that had risen up about an inch,-- and the hoop of the barrel had struck it, and the hoop was cut plumb in two. Q. Was it proper for that bolt to be extending up over and above the side of the skid? A. No, sir. Q. What was the cause of the

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