The Whisper

• Decision Date: 12 November 1920
• Docket Number: 3393.
• Citation: 268 F. 464
• Parties: THE WHISPER. v. THOMAS. WOLFE
• Court: U.S. Court of Appeals — Sixth Circuit

268 F. 464

THE WHISPER.

WOLFE v. THOMAS.

No. 3393.

United States Court of Appeals, Sixth Circuit.

November 12, 1920

H. N Moon, of Memphis, Tenn., for appellant.

Dan F Elliotte, of Memphis, Tenn., for appellee.

Before KNAPPEN and DONAHUE, Circuit Judges, and COCH- RAN, District judge.

DONAHUE Circuit Judge.

On the 14th day of July, 1919, Henry Thomas filed a libel in personam in the District Court of the United States for the Western District of Tennessee, Western Division, against James E. Wolfe, averring, among other things, that the respondent was the owner of a steamboat registered under the name of Whisper, which steamboat was engaged in interstate commerce as a common carrier of freight and passengers for hire on the Mississippi river, between the city of Memphis, Tenn., and other points on that river in the states of Arkansas and Missouri, and that such steamboat was therefore under all obligations imposed by the admiralty laws of the United States of America; that John Lynch, at the time of the commission of the grievances stated in the libel, was 'master of said steamboat'; that this libelant was a seaman thereon employed at the port of Memphis, Tenn., on the 8th day of July, 1919, for a trip from Memphis, Tenn., to Osceola, Ark., and return, at the rate of $90 per month; that on the 9th day of July, 1919, while this steamboat was discharging freight consigned to Upper Turnages Landing, in Arkansas, and while libelant was performing the duties assigned to him as a mariner, the master of steamboat, without cause or provocation, assaulted and beat him with an iron pipe, inflicting severe and permanent injuries, and then and there forced and compelled him to leave the vessel, and refused and declined to furnish libelant with transportation to his home port, or to pay him the wages he had earned while serving in the capacity of a seaman or mariner, to his damage in the sum of $5,000.

The respondent in his answer denied that John Lynch was 'master of the vessel,' that any assault was made upon libelant as recited in the libel, and averred that, if any assault did in fact take place, he is not liable therefor, for the reasons, first, that the assault did not take place on the boat or river, but on the Arkansas bank; second, that the assault, if it did take place, was a personal difficulty between Lynch, one employe of the boat, and the libelant, another employe on the boat; that whatever Lynch did in this respect was clearly without the apparent scope of his authority and not binding upon the respondent, who was not present and had not authorized Lynch to make such assault. He also denied that he or any one else connected with the vessel had anything to do with the libelant leaving the boat. The respondent further averred that, if the plaintiff suffered any damage whatever on account of injuries inflicted by Lynch, such injuries were caused by acts of Lynch upon the shore in the state of Arkansas, and for this reason clearly without the jurisdiction of a court of admiralty.

The District Court overruled the plea to its jurisdiction and awarded damages to the libelant in the sum of $1,500, from which decree an appeal was taken to this court.

It is contended by counsel for appellant that the averment that this steamboat 'was discharging freight consigned to Upper Turnages Landing, state of Arkansas,' is not equivalent to an averment that this freight was then being discharged at Upper Turnages Landing, Ark. The language used would fairly inform the average man that this freight was being discharged at the point to which it was consigned; but, even if it were being unloaded at some other point along the banks of the Mississippi river, the presumption would necessarily obtain, in view of the other averments in the libel as to the business in which this vessel was employed, that it had not left the navigable waters of the Mississippi to unload this freight.

While it is true that the libel must expressly state the facts on which jurisdiction depends, nevertheless that rule does not require that these facts should be stated in such clear and positive language as to defy technical or hypercritical attack. If the language is sufficiently clear to convey the idea sought to be expressed thereby to men of average intelligence, and especially to those engaged in that particular art, profession, craft, or business, it is also sufficiently clear to meet the needs of modern jurisprudence. Aside from this consideration, however, the libel expressly avers that the libelant 'was then and there forced and compelled to leave said steamboat by the aforesaid master,' so that it does appear from the libel itself that the assault upon libelant was committed on a vessel subject to the admiralty laws of the United states and plying in navigable waters. The case as stated in the...