The Rolph
| Decision Date | 19 May 1924 |
| Docket Number | 4160. |
| Citation | 299 F. 52 |
| Parties | THE ROLPH. v. KOHILAS (KAPTEIN et al., Interveners). ROLPH NAVIGATION & COAL CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rehearing Denied June 27, 1924.
Sullivan & Sullivan and Theo. J. Roche, of San Francisco, Cal., for appellant.
H. W Hutton, of San Francisco, Cal., for appellees.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This is an appeal from a decree against the barkentine Rolph, in favor of libelant Kohilas for $10,000, and of interveners Kaptein for $3,500, and Seppinen and Arnesen for $500 each. The barkentine Rolph and the Rolph Navigation & Coal Company a corporation, owner, appealed.
The libel was filed in rem for damages for assaults and beatings suffered by Kohilas and interveners at the hands of Frederick Hansen, mate of the Rolph, upon a voyage made in 1921 from Newcastle, New South Wales, to Mejillones, Chile, to end in a port of the Pacific Coast in the United States. Kohilas and interveners were seamen.
It is alleged that the mate, when employed, was known by the master and owner to be a man who frequently assaulted and beat seamen on ships upon which he was employed. The barkentine and her owner denied the right to recover an indemnity against the ship upon the grounds stated, and contended that for injuries, if any, received upon the high seas in the service of the ship, libelant and interveners were entitled to recover only wages, maintenance, and cure, unless the injuries complained of resulted from unseaworthiness of the ship, or became aggravated by the failure of the master to render proper medical treatment.
The District Court found that Hansen was generally reputed among seamen along the Pacific Ocean to be cruel to sailors; that he had served a term of imprisonment for brutal treatment of a seaman; that before the ship sailed the master of the Rolph knew Hansen's reputation; that the voyage of the Rolph commenced in October, 1920, at Vancouver, British Columbia where Hansen was employed as mate several weeks before the sailing date; that before the voyage commenced Hansen was arrested for a drunken assault upon the stevedores who were engaged in loading the ship; that the first leg of the voyage was from Vancouver to Melbourne, during which time Hansen assaulted a number of sailors, so that upon arrival at Melbourne a majority of the crew went to the American consul and secured their release on the ground of cruelty of the first mate; that at Melbourne a new crew was shipped, but that crew left the ship at Newcastle; that at Newcastle almost an entirely new crew, including libelants, was shipped; that the ship had scarcely cleared Newcastle when Hansen began his brutal treatment of the crew, in that day after day, sometimes several times a day, he struck and beat Kohilas and other seamen, sometimes with his fists and sometimes with belaying pins; that at one time he struck Kohilas across the eyes with a knotted rope, and injured him so that he lost the sight of one eye and was injured in the other; that after his eyes were hurt Kohilas complained to the master, who cursed him and told him to get out; that while his eyes were injured the mate, who was a large, powerful man, kicked Kohilas and compelled him to work; that when Kohilas was unable to obey orders by reason of his injuries the mate tied him to the bilge pump; that as a result of all the beatings and assaults Kohilas was permanently injured, and that interveners were also injured. When the ship reached Mejillones, some of the crew went to the American consul at Antofagasta. The master went with Hansen to the office of the consul, and by direction of the consul the master paid Hansen his wages. Arrangements were then made to send two of the crew to San Francisco as passengers to testify against Hansen, but after he was paid off Hansen escaped at Antofagasta. Some time thereafter he was apprehended at Seattle, Wash., and was there tried and convicted.
The evidence is in harmony with the conclusions of the District Judge, and as Kohilas has recovered in another proceeding for wages and maintenance, and makes no claim herein for expenses and cure, the principal question presented is whether the vessel can be held liable to an indemnity for injuries in consequence of the hiring and retention of Hansen as mate.
Appellant must, and we gather does, proceed upon the premise that a ship and her owner are liable to an indemnity for injuries to a seaman in consequence of the unseaworthiness of the ship (Chelentis v. Luckenbach, 247 U.S. 372, 38 Sup.Ct 501, 62 L.Ed. 1171; The Osceola, 189 U.S. 158, 175, 23 Sup.Ct. 483, 47 L.Ed. 760), but argues that there is no question of seaworthiness in this case. We recognize that no positive rule of law fixes any definition of seaworthiness which would apply exactly to the condition of facts presented here. Necessarily it is but a relative term. Throughout the books, however, it is generally accepted that, to...
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