Whitney v. Olsen

• Decision Date: 04 February 1901
• Docket Number: 608.
• Citation: 108 F. 292
• Parties: WHITNEY et al. v. OLSEN.
• Court: U.S. Court of Appeals — Ninth Circuit

108 F. 292

WHITNEY et al. v. OLSEN.

No. 608.

United States Court of Appeals, Ninth Circuit.

February 4, 1901

Myrick & Deering and Charles W. Slack, for appellants.

H Digby Johnston, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge.

The libel in this case was filed to recover damages for alleged negligent, illegal, and wrongful treatment upon the part of the schooner Uranus, its owners and master. The court awarded the libelant the sum of $1,000. The schooner, on the morning of April 5, 1899, sailed from the bay of San Francisco on a cod-fishing voyage in Alaskan waters. Nelse Strangland was the master, and the libelant the third mate, of the schooner. All the members of the ship's crew were on a lay. From the testimony the court found the following facts:

'(1) That the owners of the Uranus exercised reasonable care in the matter of overhauling the tackle of the Uranus, for the purpose of making her ropes, tackle, and other appliances safe and in proper condition for the voyage referred to in the libel. (2) That upon the 16th day of April, 1899, while pursuing the voyage mentioned in the libel, the main boom lift of the vessel was carried away, and by reason thereof the main boom struck the libelant, causing him to fall and break his leg in two places, one just below the knee and the other just above the ankle, and that said accident was not caused by the negligence of the owners of the Uranus or her master. (3) That when said accident occurred the vessel was about five hundred miles distant from Port Townsend and the wind was at that time fair for her to make that port; that said port could have been made within four or five days, and was the nearest port, and libelant requested to be taken there, but the master refused to do so, and proceeded on his voyage, reaching Unalaska on the 2d day of May following; that the vessel was sufficiently supplied with bandages and splints, but she had no surgeon on board or any one who knew how to properly set a fractured limb, at Unalaska the libelant was visited by a physician employed by the master for that purpose, and he gave it as his opinion that the broken leg was doing well, and that it would be better for the libelant to be returned to San Francisco, and he was then placed by the master on board the steamer Del Norte for that purpose, and reached San Francisco on or about the 14th of May, 1890, and immediately upon his arrival was placed in the Marine Hospital for treatment, where he remained a number of months; that from the time of the accident until his return to San Francisco the libelant received, while on board the Uranus and Del Norte, all the care and attendance possible to give one on shipboard, in the absence of a surgeon. (4) That the master of the Uranus was guilty of negligence in not taking the libelant after the accident to Port Townsend, the nearest port; that by reason of such negligence the libelant was subjected to protracted and unnecessary suffering; that the injuries sustained by the libelant are permanent, by reason of the fact that the fractured bones have failed to make a proper union, and this result would probably have been avoided if the libelant had received proper surgical treatment within five or six days after the accident, and he had been placed upon shore, where his injured leg could have been kept in a position of rest. (5) That, by reason of the neglect of the master to take the libelant to the nearest post for surgical treatment, the libelant has sustained damages in the sum of $1,000 and costs.'

In the specification of errors relied upon by appellants it is claimed that the court erred (1) in holding that the master of the Uranus was guilty of negligence in not taking the libelant to Port Townsend after the accident; (2) that the court erred in giving a decree against the owners of the vessel. It is contended by appellants (1) that the general rule that masters of vessels must in all cases when accidents occur on board ship put into the nearest port to give the injured seaman treatment is not imperative, and that, under the facts of this case, it was not the duty of the master of the Uranus to put into Port Townsend; (2) that if the owners used reasonable care in overhauling their vessel, and put her in proper condition before sailing, supplied her with the usual medicines and appliances for the contemplated voyage, and selected a competent master to take charge of her, they cannot be held liable for the acts of the master, within the exercise of his judgment, and that, when a competent master does what he deems best under all the surrounding circumstances, the owner cannot be charged with negligence.

The principal controversy as to the facts arises between the testimony of the master and the appellee concerning the latter's request to be taken to the nearest port. Their testimony is directly conflicting. Appellee testified that shortly after the accident, on the same day it occurred, he asked the master: 'Will you be so kind as to put me back (referring to Cape Flattery)? The master then said: 'Wait; I am going to see what I can do. ' The next morning the master said: 'I can't put you back; the nearest place is Unalaska. ' The master testified that appellee's request to be taken back was not made 'until about a week after' the accident, and that he was then nearer Alaska than to Cape Flattery or Port Townsend. His testimony in detail is as follows:

'Q. If any accident occurred on a voyage of that kind, what is the custom--what do you do? A. If we meet with a serious accident, we have to run into the nearest port that we can, except there is an exception like in this case. The Court: Q. You did not answer fully that question. You say that generally you run into the nearest port, but there was an exception in this case. A. Yes, sir; because I have seen lots of broken legs before. I knew it could not be set any other way, so I thought there was not any great risk to run to go up to Unalaska. * * * Another thing, it was an understanding between me and Mr. Olsen that he was going to go along to Unalaska, and stay there until I got loaded, and I was going there to take him down to San Francisco. Q. * * * You had this talk with Olsen after the accident occurred? A. Yes, sir. Q. It was agreed he should go on with you to Unalaska? A. Yes, sir. Q. And stop there? A. Yes, sir. Q. Did he change his mind, and want you to turn back, at any time? A. About a week or so afterwards he wanted me to put back to Port Townsend. Q. You were then past Port Townsend? A. It was a long ways off. Q. Why did you not turn back to Port Townsend? A. Because I was nearer Alaska at the time. Q. When the accident happened how far were you from Puget Sound? A. About 500 miles. * * * Q. Why did you not run into Puget Sound instead of going on to Alaska? A. Because it was hard to tell. It may take just as long to run in there. You cannot depend on the wind. It is not like we have got a steamer. We could then tell when we would be there. Q. You thought it advisable to go right on your course. A. Yes, sir. Q. Instead of taking the risk of being becalmed in Puget Sound? A. Yes, sir. * * * Q. To put into Puget Sound, you would have to take the risk of favorable wind to get in there? A. Yes, sir. Q. The wind was favorable in this direction for Unalaska? A. Yes, sir. Q. And you thought it advisable to continue on your course? A. Yes, sir. Q. You thought you could make Unalaska quicker or as quick as you could make Puget Sound? A. Not quicker, but just as quick; and, when Mr. Olsen agreed to it, I did not think it was necessary to return.'

What are the probabilities as to the truth of the different statements,--which is the more natural? What other circumstances, if any, tend to corroborate either of the parties? It is true that Olsen admitted that the master said, 'The nearest place is Unalaska,' and it is claimed that this should be taken as corroborating the testimony of the master, because it could not be true if it was said shortly after the accident occurred. On the other hand, is it reasonable to believe that Olsen, with two unset fractures in his leg,-- to use the language of his counsel, 'His foot shattered, racked with pain; the broken bones grating against each other and against the torn flesh with every motion of the boat; and knowing there was no one on board to reduce the fractures or give him other relief,'-- would have asked to be taken to a place distant about 1,750 miles instead of a place distant about 500 miles?

It must be remembered, in this connection, that, although the master testified in chief differently, the other witnesses, and afterwards the master himself, admitted that the wind was as favorable in one direction as the other. Although in his testimony he said Olsen consented or agreed to be taken to Unalaska, yet in a letter written by him at Unalaska, May 4th, to the owners of the schooner, notifying them of the accident to Olsen, and what had been done by him, he assigned as the reason why 'he had to go into Unalaska' that 'I was afraid the men was going to leave if I went to the sound. ' If there had been an agreement with Olsen to be taken to Unalaska, does it not seem reasonable that upon the arrival of the Uranus at Unalaska the master would have given that as his reason for going there instead of to the sound? When Olsen was recalled, and his attention drawn to the testimony of the master, he was asked whether he had 'ever agreed to go to Unalaska,' and answered 'No, sir.' After repeating the conversation he had with the master, substantially as we have before stated, he added that at that time the master said to him, 'I cannot put you back; the crew is going to run away...