The Lamington

• Citation: 87 F. 752
• Parties: THE LAMINGTON. v. THE LAMINGTON. PETERSEN
• Decision Date: 06 June 1898
• Court: U.S. District Court — Eastern District of New York

87 F. 752

THE LAMINGTON.

PETERSEN v. THE LAMINGTON.

United States District Court, E.D. New York.

June 6, 1898

Cowen Wing, Putnam & Burlingham, for libelant.

Convers & Kirlin, for claimant.

THOMAS District Judge.

In January, 1893, John Petersen, the libelant, a Norwegian shipped as an able seaman on board the British ship Lamington, at Buenos Ayres. On the 7th day of March, 1893 the vessel was off Cape Hatteras, and the libelant, while attempting to furl sail, fell to the deck, and received serious injuries. The Lamington was a two-masted schooner-rigged vessel, with a cross-foreyard. The fore-trysail was a fore and aft sail, rigged on standing spars. While the crew were brailing in the fore-trysail, one or more of the brails broke. Thereupon the libelant went up the rigging to the foot rope, extending to the mast, and upon reaching the mast attempted to gather the sail in, and pass the gasket around it, when, as he claims, the gasket and foot rope parted, and he fell to the deck. The libelant testified that the brails, gasket, and foot rope were old and shriveled, and that he had been to the peak of the ship where the supplies were kept, but that no good or new ropes were there. The officers of the vessel, however, testified that there was an abundance of sufficient rope to replace any that became too much impaired. The captain and the second mate testified that after the libelant's fall they examined the ropes, and that none were gone, but that all were in good condition. This testimony as to this fact, however, must be rejected, as the log contains an entry tending to show that the rope and gear of the fore-trysail and the ropes and gear of the foremast were not all in good condition, and that the witnesses for the claimant did not tell the truth in their efforts to shield themselves or the claimant from condemnation. It must be held, therefore, that the libelant's statement as to the condition of the ropes and as to the cause of the accident is preferable. It would seem that the officers had a better opportunity to know whether there was a proper supply of new rope, but the suspicion as to their veracity, already excited, may be extended justly to this question.

The court concludes that the accident was caused by a defective rope, and that there was not a sufficient supply of rope to replace the same. What law shall govern the facts thus found? Where a person employed as a seaman on a British vessel is injured on the high seas by the alleged negligence of the owner to provide proper ropes for the gear of the ship, or, if such ropes be provided, by the negligence of the master to replace faulty ropes with proper ropes thus supplied, and such seaman files a libel in rem in a district court of the United States to recover damages for such injury, should the question of liability be governed by the English law, or by the law of the United States? The action is founded in tort; hence the liability must be determined by the law of the place where the alleged tortious act was committed or suffered. Sherlock v. Alling, 93 U.S. 99; The Scotia, 14 Wall. 170, 184; McDonald v. Mallory, 77 N.Y. 546, 550, 551; The Egyptian Monarch, 36 F. 773; The Scotland, 105 U.S. 24, 29; Chartered Mercantile Bank v. Netherlands India Steam Nav. Co., 10 Q.B.Div. 521, 536; The M. Moxham, 1 Prob.Div.107; Phillips v. Eyre, L.R. 4 Q.B. 225, 238; Hart v. Gumpach, L.R. 4 P.C. 439; 1 Martens (French Trans. of Leo) 496; 1 Calvo, 552. From the above rule it follows that when a tort is committed in a foreign country, and within its own exclusive jurisdiction, an action or tort cannot be maintained in the courts of another country, unless the cause of action be maintainable in both countries. Whitford v. Railroad Co., 23 N.Y. 465; McDonald v. Mallory, 77 N.Y. 546; Leonard v. Navigation Co., 84 N.Y. 48; Wooden v. Railroad Co., 126 N.Y. 10, 26 N.E. 1050; Geoghegan v. Steamship Co., 3 Misc.Rep. 224, 22 N.Y.Supp. 749, affirmed 146 N.Y. 369, 40 N.E. 507; Chartered Mercantile Bank v. Netherlands India Steam Nav. Co., 10 Q.B.Div. 521, 536; Phillips v. Eyre, L.R. 6 Q.B.1, 28; The M. Moxham, 1 Prob.Div. 107. In the present case the tort on which the action is based arises from a contractual relation, as the relation of master and servant arises only from contract, expressed or implied. Stevens v. Armstrong, 6 N.Y. 442; Farwell v. Railroad, 4 Metc. (Mass.) 49; Ross v. Railroad Co., 5 Hun, 493; Bailey, Mast. & Serv. 1. The contract was made on a British ship, in a foreign port; the service was to be performed on such ship; and the alleged breach of duty on the part of the master happened on the high seas. Where persons on British soil enter into such relation, they presumptively stipulate that such duties shall be observed by the master as the British laws impose upon him, and, by implication, the obligation of such duties becomes a part of the contract of hiring. The Belgenland, 114 U.S. 355, 364, 367, 5 Sup.Ct. 860; The Egyptian Monarch, 36 F. 773; The Maud Carter, 29 F. 156. If A. and B. enter into a contract, by which B., as a servant, agrees to render personal services to A., on English territory, it would not be presumed that the master impliedly agreed that, in providing a safe place to work, or machinery, or appliances, he would do whatever might be required by the laws of some other country; and that the contractual relation implied and imposed by a foreign jurisdiction should be regarded as a part of the stipulation in case the courts of such jurisdiction should assume to make reparation for an alleged breach of the contract. This is not a case where the contract was made to be performed in the country where the remedy was sought, nor where the alleged breach of duty happened within the territorial limits of such country, nor where the peace of a foreign port has been disturbed, nor where public policy or the due maintenance of police regulations requires interference by the courts of the United States. The locus in quo is the high seas, on a British ship, and the contention is solely between citizens of other countries, whose rights were stipulated on a British ship, and whose duties were to be performed on such ship, and there alone. It is unnecessary, in such case, to consider whether there should be any modification of the rule hereinafter stated in case the accident had happened under other conditions. It will be sufficient to decide the precise case at bar with sole reference to the facts presented.

The first question is this: Did the accident occur on British territory? Every vessel outside the jurisdiction of a foreign power is a detached, floating portion of the territory of the country whose flag it flies, and under whose laws it is registered. The Scotia, 14 Wall. 170, 184; Crapo v. Kelly, 16 Wall. 610, 624; Wilson v. McNamee, 102 U.S. 572, 574; In re Moncan, 14 F. 44; In re Ah Sing, 13 F. 286; U.S. v. Bennett, 3 Hughes, 466, Fed. Cas. No. 14,574; Mcdonald v. Mallory, 77 N.Y. 546, 551, 553, Wheat. Int. Law (Dana's Ed.) Sec. 106; 3 Whart. Int. Law Dig. 228; Whart. Confl. Laws, Sec. 356; 1 Kent, Comm. 26; Vatt. Law Nat. bk. 1, c. 19, Sec. 216; 1 Calvo, 552; Bluntschli, Sec. 317; 1 Martens (French Trans. of Leo) 496; Seagrove v. Parks, 1 Q.B.Div. 551. The authorities noted so perfectly maintain the doctrine stated that quotation, amplification, or illustration is unnecessary. The broad and fundamental principle is that the sovereignty of a nation extends to its private ships, and this dominion is never shared by a foreign power where the internal affairs of the vessel are alone involved, and where it is not within the territorial domain of such power. It results from the foregoing: (1) That tortious acts are governed by the law of the place where they are done. (2) That a foreign tribunal will never afford reparation for such acts, unless they are unjustified both by the law of the place where they occurred and by the law of the forum. (3) That a contract creating the relation of master and servant, made in a country for a service to be rendered in such country, imposes only such obligations, and confers only such rights, as the terms of the contract stipulate, and the laws of such country imply. (4) That the vessels of such country are, even upon the high seas, a detached, floating portion of its territory, and exclusively within the influence of its laws, so far as the internal economy of the vessel is concerned.

It now becomes necessary to determine whether the British laws permit a lien, and hence an action in rem, for an injury to a servant through the breach of the duty owing by a master to a servant. The evidence of James Mackenzie, a distinguished jurist of Glasgow, Scotland, produced by the claimant, is to the effect that such lien is not permitted, and he justifies his opinion by the rules of common law (Mayne, Dam.; Guthrie Smith, Dam.; Glegg, Reparation), and points out that the merchant shipping act of 1894 (section 558), which is a consolidation of previous acts, gives a personal remedy against the shipowner, but does not confer a right of action in rem. The advocate for the claimant also cites The Vera Cruz, 5 Asp. 270, 386, and The Theta (1894) Prob. Div. 280 which illustrate to some extent the correctness of Mr. Mackenzie's opinion. If, now, the law of Great Britain does not permit an action in rem, the present action must fail, unless it appear that such action in not...