The Noddleburn

Decision Date23 October 1886
PartiesTHE NODDLEBURN. (CURTIS, Libelant.
CourtU.S. District Court — District of Oregon

Edward N. Deady and Horace B. Nicholas, for libelant.

C. E S. Wood, for defendant.

DEADY J.

This suit is brought by the libelant, Daniel Curtis, against the British bark Noddleburn and her master, Joseph Hogg, to recover $5,000 damages for an injury to his ankle, received while serving on the vessel as a seaman, and for a balance of $70 due him as wages on account of such service.

From the pleadings and evidence I find the following facts:

On March 24, 1886, the libelant duly shipped on the Noddleburn at Liverpool, for a voyage to this port, and thence to a port of discharge in the United Kingdom, as an able-bodied seaman at and for the monthly wages of 2 pounds and 15 shillings. On April 23, about 4 P.M., in the latitude about 15 N., in the Atlantic ocean, as the vessel was being put about, the libelant was ordered by the made to go aloft and pass the maintop gallant stay-sail sheet over the middle stay, from the port to the starboard side. Wehn the libelant reached the foretop he took hold of the bight of the sheet, and attempted to haul it; but, finding that it would not come, he concluded that the hooks on the end of the sheet were foul of the jib-halyards, and went out on the rope sometimes called the crane-line, between the foremast back-stay and the after foremast shroud, and, holding to the shroud with one hand and taking the sheet in the other, attempted to shake it loose when the seizing fastening the line gave way, and the libelant fell to the deck, a distance of 30 or 40 feet, the weight of his body loosening his hold on the shroud, and struck on a spare anchor lying on the deck between the waist and the foremast, thus spraining his right ankle, and fracturing obliquely the external malleolus, or lower end of the fibula or outer bone of the leg. The master, with the aid of some of the crew, pulled the ankle into place, but did not discover the fracture of the bone then or afterwards. He also bandaged the leg, and put it into splints, and then sent the man to his bunk, but did not visit him until the next day. In the meanwhile the leg swelled so that it became very painful, and the libelant removed the bandages. The master had the bandages put on again without the splints, and the man remained in his room for several weeks, with his leg more or less bandaged, and once again in splints a short time; the master visiting him not more than twice in that time, besides having him go aft occasionally, at much pain and inconvenience to the libelant. In the course of six or seven weeks the master had a pair of crutches made for the libelant, and, with his assent, set him to work cleaning the lamps and brass-work during the day.

On August the 12th the vessel arrived in Astoria, where, after a delay of a couple of days, the master called a doctor on board to examine the libelant's leg, but he did nothing for it; saying that it would have to be reset, while the master insisted it was nothing but a sprain, and would get well in tome of itself. On August the 19th the vessel arrived at Portland. By the direction of the master the libelant did duty as night watchman from the arrival of the vessel in the Columbia river until August 25th, when he was, at his own urgent request, sent to the Good Samaritan hospital, where he still remains. On his arrival there, according to the testimony of Dr. Saylor, the physician in charge, his foot and leg, from the toe to the knee, were very much swollen; so much so that the condition of the ankle and the extent of the injury could not then be determined. Absolute rest was then prescribed, and a plaster cast put on the ankle for some five or six weeks, when it was ascertained that the external malleolus was fractured, and had united so as to leave the end of the bone projecting outwards instead of downwards; thus leaving the ankle, or tarsus, without any outer support, so that when the libelant steps on anything but a flat surface his foot is likely to turn under him, for which reason he will never be able to follow the sea again.

The master, acting probably under the impression that the injury to the libelant was only a sprain of the ankle, did not pay much attention to him, or manifest any particular concern for his comfort or recovery. After sending him to the hospital he did not visit him, or pay him any attention, until he heard this suit was about to be commenced,-- September 17th,-- and then only on that account.

Shortly before the accident to the libelant one of the crew informed the mate that the seizing on this crane-line was chafed and insufficient, when the latter sent another man up, with proper material, to put the line in good condition. As the man was going up the rigging to make the repair the master saw him, and asked the mate what he was doing there. The mate informed him, when the master ordered him to recall the man, and set him to work on the deck with sand and canvas, at the same time accusing him, in obscene and filthy terms, with trying to curry favor with the man by giving them 'soft jobs.' The man was recalled, and the line not repaired, and hence the injury to the libelant. The master denies this statement in a vague and argumentative way, but the testimony of the mate and the two men concerned in the transaction is clear and convincing.

The defense made on the argument rests mainly on points of law: (1) The court has no jurisdiction in the premises; (2) by the British law there is no implied warranty of seaworthiness of the vessel, or her equipment, in the contract between the seaman and her owner; and (3) the crane-line was not a foot-line, and therefore the libelant was guilty of negligence in going on the same as he did, and thereby contributed to the injury he sustained.

The question of jurisdiction was not pressed by counsel, but merely stated and submitted.

In Bernhard v. Creene, 3 Sawy. 230, this court, after a careful examination of the subject, held, in the language of the syllabus, that (1) 'the district courts of the United States, as courts of admiralty, have jurisdiction of torts committed on the high seas, without reference to the nationality of the vessel on which they are committed, or that of the parties to them;' but that (2) 'such jurisdiction will, in the discretion of the court, be declined in suits between foreigners, where it appears that justice would be as well done by remitting the parties to their home forum;' and (3) 'where the suit is between foreigners, who are subjects of different governments, and therefore have no common home forum, the jurisdiction will not be declined. ' The opinion in this case was delivered and published over 12 years ago, and, while it has attracted attention, it has not, that I am aware of, been the subject of adverse criticism.

In The Belgenland, 114 U.S. 355, S.C. 5 S.Ct. 860, Mr. Justice BRADLEY, in delivering the opinion of the court, did me the honor to cite it with express approbation on the question of jurisdiction, where the res or parties have no common forum. Until the case is directly overruled, it will be regarded as authority in this court.

The only decision in the English courts on the second point is the case of Couch v. Steel, 3 El. & Bl. 402, (24 Eng. Law & Eq. 77.) This was an action at law in the queen's bench by a seaman to recover...

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    • U.S. Court of Appeals — Fifth Circuit
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    ... ... at 272. And the Court of Appeals discussed only the seamen's entitlement "to recover an indemnity" for their injuries. 299 F. at 56. These are discussions of compensatory damagesnowhere does the court speak in terms of an exemplary or punitive award. 6 139 S.Ct. 2284 The Noddleburn, 28 F. 855, 857858 (Ore. 1886), involved an injury to a British seaman serving on a British vessel and was decided under English law. The plaintiff in the case was injured when he fell to the deck after being ordered aloft and stepping on an inadequately secured line. Id. , at 855. After the ... ...
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