Tropical Fruit S.S. Co. v. Towle

• Decision Date: 28 April 1915
• Docket Number: 2754.
• Citation: 222 F. 867
• Parties: TROPICAL FRUIT S.S. CO., Limited, v. TOWLE.
• Court: U.S. Court of Appeals — Fifth Circuit

222 F. 867

TROPICAL FRUIT S.S. CO., Limited, v. TOWLE.

No. 2754.

United States Court of Appeals, Fifth Circuit.

April 28, 1915

This is a suit in admiralty against the steamship Cartago by Frank Towle, a seaman thereon, to recover the sum of $1,500 for personal injuries alleged to have been sustained by him through the negligence of the officers in charge of said vessel.

The gist of the action is set forth in the following allegations of the third paragraph of the libel: 'That on a recent outward voyage or trip of the Cartago, on or about April 30 1914, this libelant, while on board said vessel engaged in the performance of his duties as one of the crew and, acting under orders and while battening down or covering and securing one of the hatches of said vessel, did sustain a severe bodily injury while working, and the right hand of this libelant was injured and crippled by the crushing of two fingers, thereby losing a joint of his middle finger and crushing and disabling another finger of his right hand, by the same being crushed by a barrel or cylinder containing oil or similar liquid, which had been improperly or insecurely placed or left carelessly upon or near the deck of the vessel near the hatch.'

The claimant in due course filed its answer, admitting the employment of the libelant on the Cartago and the occurrence of the injury, but denying the other allegations of the libel. The evidence was taken out of court before a commissioner, and the case was then submitted to the court which entered a decree against the claimant and its surety in the sum of $500. The court held that the accident was due to the negligent manner in which the barrel of oil had been placed and to the negligence of libelant in not taking proper precautions, and accordingly divided the damages. From this decree appellant prosecutes this appeal, and has filed the following assignments of error:

'(1) That the court erred in handing down any decree at all in favor of the libelant, but should have dismissed his claim and entered a decree in favor of respondent.

'(2) That the court should have held that the evidence in this case failed to show any negligence on the part of the respondent, and therefore erred in allowing libelant any recovery whatsoever.

'(3) That the court should have held that, even if there were any negligence on the part of respondent, it was the negligence of the fellow servants of libelant, and that no recovery could be allowed therefor, and that the court, therefore, erred in not rendering judgment in favor of respondent, dismissing libelant's suit.

'(4) That the court should have held that the libelant had failed to bring his case within the exceptional class of cases in which a seaman is allowed to recover indemnity for personal injuries, inasmuch as the evidence failed to show that the ship was unseaworthy, or that there was any defect in the appliances thereof, and that the court, therefore, erred in entering any decree whatsoever for libelant, inasmuch as the evidence showed that libelant had been fully maintained and cured at the expense of respondent.'

Esmond Phelps, of New Orleans, La., for appellant.

C. L. Walker, of New Orleans, La., for appellee.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

PARDEE Circuit Judge (after stating the facts as above).

The evidence is taken as fully proving the facts alleged in the third paragraph of the libel, and yet we are constrained to deny the libelant relief.

The matters complained of arose on a vessel practically on the high seas, and thus within the admiralty jurisdiction, and the responsibility of the ship must be determined according to admiralty law and usages.

In The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760, the Supreme Court discussed at length the extent of recovery in admiralty allowed for an injury to seamen received on a vessel, and therein announced the following propositions as the settled law of England and this country:

'1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.

'2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a

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