Peterson v. The Chandos & Master

• Decision Date: 09 November 1880
• Citation: 4 F. 645
• Parties: PETERSON v. THE CHANDOS AND MASTER.
• Court: U.S. District Court — District of Oregon

4 F. 645

PETERSON v. THE CHANDOS AND MASTER.

United States District Court, D. Oregon.

November 9, 1880

John Woodward and Charles Woodward, for libellant.

John W Whalley and M. W. Fechheimer, for respondent and claimants.

DEADY D.J.

In January, 1880, the American ship Chandos sailed from the port of New York for Portland, with a full cargo of railway iron. The libellant, Gustavus Peterson, a native of Sweden and aged twenty-seven years, shipped for the voyage as an able-bodied seaman.

Near three o'clock of the morning of June 10th, in about latitude 38 south, longitude 90 west, from Greenwich, the weather being dark and rainy, with a good breeze, the libelant was ordered by the second mate to go aloft and cast off the stop on the foretop-gallant halliards. He went up the rigging on the starboard side to the top, and thence out on the crane line, and stood or sat upon it-- probably the latter-- between the topmast and top-gallant backstays while, without other hold or support, he untied with both hands the stop, which was about 18 inches or two feet above the line. Just as the libellant finished untying the stop the line on which he was resting parted at the hitch near the top-gallant stay and precipitated him to the deck. In falling, he appears to have struck first on one foot on the ship's boat, which was stowed bottom up on the booms just abaft of the foremast, and then fell over on the deck, striking his head on the pinrail as he went down. The distance from the crane line to the bottom of the boat on which libellant struck is about 30 feet, and from there to the deck is about 10 feet more.

The alarm was soon given and the man was immediately carried into the house on deck, used as a forecastle, in an unconscious condition, and bleeding profusely from what appeared to be a severe injury to the head. The master was called and came at once to the forecastle, and had the libellant stripped and examined, placed in a bunk, and dressed his head. The fall caused a fracture of the collar bone, and a severe cut in the head, from which the libellant in due time fully recovered. It also caused a fracture of the femur or thighbone of the right leg a little below the middle of the same. On the next day after the accident the master had the libellant removed into the carpenter's room, and his leg bandaged with splints and placed in a box then made for that purpose. There seems to have been a difference of opinion on board as to whether the leg was broken or not-- the master's testimony being that he did not think that it was broken until July 4th, when the vessel was in latitude about 2 degrees north and longitude 110 west, at which time he became satisfied that it was broken.

The Chandos arrived in the Columbia river on August 10th, and anchored in Baker's bay, where she remained 10 days, and then proceeded to Portland, where she arrived on August 22d. There the libellant was sent to the marine hospital, where he remained about two months. From the evidence of the hospital physicians the bone has united and the leg will in all probability be strong and sound, but it is about three inches short; the knee is also somewhat stiff, but that will probably pass away.

The libellant brings this suit against the vessel and the master to recover $5,000 damages for the injury suffered by the fall, and the subsequent inattention, alleging that the fall was caused by the neglect of the master in not providing a sufficient crane line, and that the shortening of his leg was caused by neglect and the want of proper treatment after the fracture.

Upon the first point I find against the libellant. From the evidence it plainly appears that the crane line is not primarily a foot-rope, and that it is put upon the stays to keep them steady, and not to walk upon, but that it is often used by seamen more or less as a support or rest in going from the top to the stop and casting it off. It also appears that this line, which is usually on this vessel a fifteen-thread ratline, is very liable to chafe and wear from the swaying of the stays, so that sometimes it only lasts a day or so, and is therefore considered an insecure footing, and one that ought not to be used without other support, or more than ordinary caution.

As an evidence of how soon this line may become chafed and weakened, and therefore of its insecurity as a foot-rope, it may be mentioned that on the evening before the libellant was hurt, as he came down from furling the sail, he sat with all his weight upon this same crane line while he put on this same stop. And yet it broke with him under similar circumstances within eight hours thereafter. When, therefore, the libellant, who appears to be a man above the average weight, went upon this line in the dark, without any precaution against its breaking, or observation as to its then condition, I think he was guilty of negligence. The libellant assumed the ordinary risks of his employment, and the liability of the crane line to part appears to be one of them.

The negligence of the libellant was the proximate, if not the sole, cause of the injury; and, therefore, he cannot recover for the damage resulting from it. 2 Thompson on Negligence, 1148; Bowas v. Pioneer Tow Line.

But the libellant also claims that the crane line was insufficient when put up, a few days before, by the express direction of the mate, being only a piece of old rotten manilla gasket; that he went upon the crane line to cast off the stop by the special order of the second mate, and that it was customary on the vessel, in giving an order to cast off this stop, to say: 'Go aloft, and get on that crane line and cast off the stop on the top-gallant halliards. ' But, in my judgment, the evidence fails to establish either of these allegations; and, if it did, the libellant would not thereby be relieved from the obligation to exercise ordinary care and prudence in going on such line, or casting off such stop.

Admitting however, the alleged negligence of the mate, and that the matter or owner and the vessel are liable therefor, still, if the negligence of the libellant substantially contributed to produce the injury, he could not recover damage therefor. In this view of the matter it is unnecessary to consider whether the mate was a fellow servant of the libellant, within the general rule which exempts a master from responsibility for injuries to those in his employ resulting from the negligence of a fellow servant employed in the same general business.

In Halverson v. Nison, 3 Saw. 562, the libellant, while at work upon a triangle, fell to the deck, by reason of the negligence of the mate in rigging the same, and was seriously injured. Mr. Justice Hoffman, upon the strength of the authorities, but with apparent reluctance, held that the owners of the vessel were not responsible for the injury.

But the mate being the immediate agent and representative of the master,-- his very right hand, as it were,-- acting within his view and under his personal direction, I think he ought not be considered the fellow servant of the men in the forecastle within this rule, but rather the locum tenens of the master and owner, for whose negligence, resulting in injury to any of the crew while in the correct discharge of their duty, the vessel and master ought to be responsible.

The relation between the master and sailor at sea is more of a parental character than that between the employer and employe on shore,-- particularly in the great transportation lines, workshops, and factories of modern times; and, therefore, the former may and do rely more for their safety and well-being upon the foresight and personal direction of those in authority over them than the latter. Again, an employe on shore, who is unwilling to incur the risk arising from the negligence or want of skill of a fellow servant, may ordinarily quit such employment, but a seaman must remain on board, at least until a port is made, however unskillful or negligent the mate may be.

In the argument for the respondent and claimants significance was sought to be given to the fact the libellant went aloft in his oil skins and gum boots, and by way of the rigging instead of 'shinning up the backstays.' But in this instance it is too plain for argument that the libellant's fall was not in any way attributable to the amount of clothing he wore, or the way in which he went aloft, but solely to the means he adopted of supporting himself while there--the resting his whole weight upon the crane line without being aware of its condition. From the evidence, and the very nature of the case, I am satisfied that it was just as proper, and much easier and safer, to have climbed up the rigging and have swung out on the backstays, to cast off this stop, as...