The Korea Maru

• Decision Date: 11 October 1918
• Docket Number: 3115.,3114
• Citation: 254 F. 397
• Parties: THE KOREA MARU (two cases .
• Court: U.S. Court of Appeals — Ninth Circuit

254 F. 397

THE KOREA MARU (two cases .

Nos. 3114, 3115.

United States Court of Appeals, Ninth Circuit.

October 11, 1918

Smith Warren & Whitney, William O. Smith, and L. J. Warren, all of Honolulu, T.H., and Samuel Knight, of San Francisco, Cal for appellants.

George A. Davis and Charles S. Davis, both of Honolulu, T.H., for appellees.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

MORROW Circuit Judge.

The libels charge the breach of a marine contract in the failure of the owners and officers of the steamship Korea Maru to carry the libelants safely and without injury from the port of Kobe, in the empire of Japan, to the port of Honolulu, in the district and territory of Hawaii, in the United States. The two suits arise upon substantially the same state of facts, involving the same issues, and were heard together both in the lower court and here, and will be so treated in this opinion.

It is alleged that the libelants were passengers for hire on the Japanese steamship Korea Maru, leaving the port of Kobe empire of Japan, on the 6th day of December, 1916, and being third-class or steerage passengers on that boat; that the Korea Maru was at that time engaged in carrying passengers, mail, and freight from divers ports and places in the republic of China, the empire of Japan, and other ports and places, to the port of Honolulu, territory of Hawaii, and San Francisco, state of California; that on or about the 11th day of December, 1916, while said steamship was upon the high seas, the libelants were compelled by reason of the stifling condition of their quarters, the heat and impure air, to go from their quarters up to and upon the lower deck of the vessel; that while on the deck, and during heavy weather, and while a heavy swell and a high sea was running, they were struck by a wave, which swept over and across the deck of the steamship, and fell with great force and violence upon the deck of the steamship, throwing libelants down; that the libelant Uto Yenobi suffered a fracture of the metatarsel bone of the right foot, and the libelant Omito Itokazu suffered a compound fracture of the tibia of her right leg and was otherwise bruised and injured; that neither libelant received any proper medical care after the injuries complained of; and that said injuries were caused by the negligence of the appellants, in not warning the libelants that it was dangerous and unsafe at that time to go on the deck of the vessel, and in failing to provide safety appliances on the deck, and in allowing the libelants to go upon the deck of the steamship without taking the necessary precautions for the safety of the passengers.

During the trial, the libel in case No. 3114 was amended, charging that the claimant employed an unskillful and incompetent physician and surgeon, who wholly failed and neglected to attend and treat the libelant Uto Yenobi, and by reason of such neglect libelant suffered great hardship and pain. The libel in case No. 3115 was also amended, in which the claimant is charged with the employment of an unskillful and incompetent physician and surgeon, who treated the broken leg of Omito Itokazu as an ordinary contused wound, and not as a broken leg, by reason of which unskillful and incompetent treatment the libelant suffered great hardship and pain.

With respect to the charge contained in these amendments, that the physician and surgeon neglected the libelants, we are of the opinion that such neglect was an element in the general charge of neglect for which the vessel was liable; but with respect to the charge that the physician and surgeon was incompetent and unskillful in the treatment of Omito Itokazu we are of the opinion that the vessel was only liable when the claimant failed to take reasonable care in the employment of such an officer on board the vessel. Hutchins v. American Steamship Great Northern, 251 F. 826, . . . C.C.A. . . . . It is not charged in either of the libels or the amendments that the claimant was negligent in the selection of, or in the employment of, the physician and surgeon, or that his incompetency or lack of skill, as charged, was known to the claimant at the time of his engagement, or that his incompetency and lack of skill, as charged, was subsequently ascertained by the claimant, and that with such knowledge he was retained as an employe of the vessel. In the absence of such a charge, and competent evidence to sustain it, we pass over the evidence relating to the lack of skill and competency on the part of the physician and surgeon in the treatment of Omito Itokazu.

We come, then, to the general charge of negligence, the character of which, with respect to the duty of the carrier to a passenger, is the same, whether the liability of the carrier is claimed as a breach of contract or as a failure to perform the duty of a carrier.

The care required of a carrier in transporting passengers, and its consequent liability, is sufficiently stated for the present purpose under the general rule that, although the carrier does not insure that the passenger will be carried safely, still it is bound to exercise as high a degree of care, skill, and diligence in receiving a passenger conveying him to his destination, and setting him down safely, as the means of conveyance employed and the circumstances of...