1. The law both in England and America is settled as to the
following propositions:
(1) That a 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 owners 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
failure to supply and keep in order the proper appliances
appurtenant to such ship.
(3) That all the members of the crew, except perhaps the master,
are, as between themselves, fellow servants, and hence seamen
cannot recover for injuries sustained through the negligence of
another member of the crew beyond the expense of their maintenance
and cure.
(4) That the seaman is not allowed to recover an indemnity for
the negligence of the master, or any member of the crew, but is
entitled to maintenance and cure whether the injuries were received
from negligence or accident.
2. Section 3348, Rev.Stat. of 1898 of Wisconsin, providing that
every ship, boat or vessel used in navigating the waters of that
state shall be liable for all damages arising from injuries done to
persons or property thereby, and that the claim therefor shall
constitute a lien upon such ship, boat or vessel, is confined to
cases where the damage is done by those in charge of a ship, with
the ship as the "offending thing." Cases of damages done on board
the ship are not, within the meaning of the act, damages done by
the ship. Such statute does not create a lien which can be
enforced
Page 189 U. S. 159
in rem for injuries received by a seaman by the falling
of a gangway, resulting as alleged from the master negligently
ordering the same to be hoisted while a headwind was blowing.
This was a libel
in rem filed in the District Court for
the Eastern District of Wisconsin in admiralty against the
propeller
Osceola to recover damages for a personal injury
sustained by one Patrick Shea, a seaman on board the vessel,
through the negligence of the master.
The case resulted in a decree for the libellant, from which an
appeal was taken by the owners to the circuit court of appeals,
which certified to this Court certain questions arising upon the
following statement of facts:
"The owners had supplied the vessel with a movable derrick for
the purpose of raising the gangways of the vessel when in port, in
order to discharge cargo. The appliance was in every respect fit
and suitable for the purpose for which it was intended and
furnished to be used, and at the time of the injury was in good
repair and condition. The gangways which were to be raised by the
derrick were each about ten feet long lengthwise of the ship, about
seven feet high, and weighed about 1,050 pounds. In the month of
December, 1896, the vessel was on a voyage bound for the port of
Milwaukee, and when within three miles of that port, and while in
the open lake, the master of the vessel ordered the forward port
gangway to be hoisted by means of the derrick, in order that the
vessel might be ready to discharge cargo immediately upon arrival
at her dock. At this time, the vessel was proceeding at the rate of
eleven miles an hour against a head wind of eight miles an hour.
Under the supervision of the mate, the crew, including the
appellee, Patrick Shea, who was one of the crew, proceeded to
execute the order of the master. The derrick was set in place to
raise the gangway. As soon as the gangway was swung clear of the
vessel, the front end was caught by the wind and turned outward
broadside to the wind, and by the force of the wind was pushed aft
and pulled the derrick over, which, in falling, struck and injured
the libellant. The negligence, if any there was, consisted solely
in the order of the master that the derrick should be used, and
that the gangway
Page 189 U. S. 160
should be hoisted while the vessel was yet in the open sea, when
the operation might be impeded and interfered with by the wind. The
mate and the crew, in executing the orders of the master of the
vessel, acted in all respects properly, and were guilty of no
negligence in the performance of the work. The libel charged
negligence upon the owners of the vessel in 'requiring and
permitting the work of unshipping said gangway to be done while the
said vessel was at sea and running against the wind.' The owners
were not present upon the vessel, nor was the master a part owner
of the vessel. It is contended that the vessel and its owners are
liable for every improvident or negligent order of the captain in
the course of the navigation or management of the vessel."
The questions of law upon which that court desired the advice
and instruction of the Supreme Court are --
"First. Whether the vessel is responsible for injuries happening
to one of the crew by reason of an improvident and negligent order
of the master in respect of the navigation and management of the
vessel."
"Second. Whether in the navigation and management of a vessel
the master of the vessel and the crew are fellow servants."
"Third. Whether, as a matter of law, the vessel or its owners
are liable to the appellee, Patrick Shea, who was one of the crew
of the vessel, for the injury sustained by him by reason of the
improvident and negligent order of the master of the vessel in
ordering and directing the hoisting of the gangway at the time and
under the circumstances declared -- that is to say, on the
assumption that the order so made was improvident and negligent.
"
Page 189 U. S. 168
MR. JUSTICE BROWN delivered the opinion of the Court.
In the view we take of this case, we find it necessary to
express an opinion only upon the first and third questions, which
are, in substance, whether the vessel was liable
in rem to
one of the crew by reason of the improvident and negligent order of
the master in directing the hoisting of the gangway for the
discharge of cargo, before the arrival of the vessel at her dock,
and during a heavy wind. As this is a libel
in rem, it is
unnecessary to determine whether the owners would be liable to an
action
in personam, either in admiralty or at common law,
although cases upon this subject are not wholly irrelevant.
If the rulings of the district court were correct, that the
vessel was liable
in rem for these injuries, such
liability must be founded either upon the general admiralty law or
upon a local statute of the state within which the accident
occurred. As the admiralty law upon the subject must be gathered
from the accepted practice of courts of admiralty, both at home and
abroad, we are bound in answering this question to examine
Page 189 U. S. 169
the sources of this law and its administration in the courts of
civilized countries, and to apply it, so far as it is consonant
with our own usages and principles, or, as Mr. Justice Bradley
observed in
The
Lottawanna, 21 Wall. 558, "having regard to our own
legal history, Constitution, legislation, usages, and
adjudications."
By Article VI of the Rules of Oleron, sailors injured by their
own misconduct could only be cured at their own expense, and might
be discharged;
"but if, by the master's order and commands, any of the ship's
company be in the service of the ship, and thereby happen to be
wounded or otherwise hurt, in that case they shall be cured and
provided for at the cost and charges of the said ship."
By Article 18 of the Laws of Wisbuy,
"a mariner being ashore in the master's or the ship's service,
if he should happen to be wounded, he shall be maintained and cured
at the charge of the ship,"
with a further provision that, if he be injured by his own
recklessness, he may be discharged and obliged to refund what he
has received. Practically the same provision is found in Article 39
of the Laws of the Hanse Towns; in the Marine Ordinances of Louis
XIV, Book III, Title 4, Article 11, and in a Treatise upon the Sea
Laws, published in 2 Pet. Admiralty Decisions. In neither of these
ancient Codes does there appear to be any distinction between
injuries received accidentally or by negligence, nor does it appear
that the seaman is to be indemnified beyond his wages and the
expenses of his maintenance and cure. We are also left in the dark
as to whether the seaman in such a case has recourse to the ship
herself, or is remitted to an action against the owners.
By the modern French Commercial Code, Art. 262,
"seamen are to be paid their wages, and receive medical
treatment at the expense of the ship if they fall sick during a
voyage, or be injured in the service of the vessel."
Commenting upon this article, Goirand says in his commentaries
upon the French Code that
"when a sailor falls ill before the sailing of the vessel he has
no right to his wages; if he becomes ill during the voyage, and
from no fault of his own, he is paid his wages, and tended at the
expense of the ship,"
and if he is left on shore, the ship is also liable for the
expense of his return home, and,
Page 189 U. S. 170
under Article 263,
"the same treatment is accorded to sailors wounded or injured in
the service of the ship. The expenses of treatment and dressing are
chargeable to the ship alone, or to the ship and cargo, according
to whether the wounds or injuries were received in the service of
the ship alone, or that of the ship and cargo."
Similar provisions are found in the Italian Code, Article 363;
the Belgian, Article 262; the Dutch, Articles 423 and 424; the
Brazilian, Article 560; the Chilian, Article 944; the Argentine,
Article 1174; the Portuguese, Article 1469; the Spanish, Articles
718 and 719; the German, Articles 548 and 549. In some of these
Codes, notably the Portuguese, Argentine, and Dutch, these expenses
are made a charge upon the ship and her cargo and freight, and
considered as a subject of general average. By the Argentine Code,
Article 1174, the sailor is also entitled to an indemnity beyond
his wages and cure in case of mutilation, and by the German Code he
appears to be entitled to an indemnity in all cases for injuries
incurred in defense of his ship, and by the Dutch Code, the sailor,
if disabled, is entitled to such damages as the judge shall deem
equitable. In all of them, there is a provision against liability
in case of injuries received by the sailor's willful
misconduct.
Except as above indicated, in a few countries, the expense and
maintenance and cure do not seem to constitute a privilege or lien
upon a ship, since, by the French Code, Article 191, classifying
privileged debts against vessels, no mentions is made of a lien for
personal injury. The other continental and South American Codes do
not differ materially from the French in this particular. Probably,
however, the expenses of maintenance and cure would be regarded as
a mere incident to the wages, for which there is undoubtedly a
privilege.
By the English Merchants' Shipping Act, 17 & 18 Vict. c.
104, sec. 228, subd. 1,
"if the master or any seaman or apprentice receives any hurt or
injury in the service of the ship to which he belongs, the expense
of providing the necessary surgical and medical advice, with
attendance and medicines, and of his subsistence until he is cured,
or dies, or is brought back to some port in the United Kingdom, if
shipped in the
Page 189 U. S. 171
United Kingdom, or, if shipped in some British possession, to
some port in such possession, and of his conveyance to such port,
and the expense (if any) of his burial, shall be defrayed by the
owner of such ship, without any deduction on that account from the
wages of such master, seaman, or apprentice."
These provisions of the British law seem to be practically
identical with the Continental Codes. In the English courts, the
owner is now held to be liable for injuries received by the
unseaworthiness of the vessel, though not by the negligence of the
master, who is treated as a fellow servant of the owner.
Responsibility for injuries received through the unseaworthiness of
the ship is imposed upon the owner by the Merchants' Shipping Act
of 1876, 39 & 40 Vict. c. 80, section 5, wherein, in every
contract of service, express or implied, between an owner of a ship
and the master or any seaman thereof, there is an obligation
implied that all reasonable means shall be used to insure the
seaworthiness of the ship before and during the voyage.
Hedley
v. Pinkney &c. Co., 1894, App.Ca. 222, an action at common
law. Beyond this, however, we find nothing in the English law to
indicate that a ship or its owners are liable to an indemnity for
injuries received by negligence or otherwise in the service of the
ship. None such is given in the Admiralty Court Jurisdiction Act of
1861, although it seems an action in admiralty will lie against the
master
in personam for an assault committed upon a
passenger or seaman.
The Agincourt, 1 Hagg.Adm. 271;
The Lowther Castle, 1 Hagg.Adm. 384. This feature of the
law we have ourselves adopted in general admiralty Rule 16,
declaring that,
"in all suits for assault or beating on the high seas, or
elsewhere within the admiralty and maritime jurisdiction, the suit
shall be
in personam only."
In England, the master and crew are also treated as fellow
servants, and hence it would follow that no action would lie by a
member of the crew against either the owners or the ship for
injuries received through the negligence of the master.
Hedley
v. Pinkney &c. Steamship Co., 1894, App.Ca. 222. It is
otherwise, however, in Ireland,
Ramsay v. Quinn,
Irish.Rep., 8 C.L. 322, and in Scotland, where
Page 189 U. S. 172
the master is regarded as a vice principal.
Leddy v.
Gibson, 11 Ct.Sess.Cases, 3d Ser. 304.
The statutes of the United States contain no provision upon the
subject of the liability of the ship or her owners for damages
occasioned by the negligence of the captain to a member of the
crew; but in all but a few of the more recent cases, the analogies
of the English and Continental Codes have been followed, and the
recovery limited to the wages and expenses of maintenance and cure.
The earliest case upon the subject is that of
Harden v.
Gordon, 2 Mason 541, in which Mr. Justice Story held that a
claim for the expenses of cure in case of sickness constituted in
contemplation of law a part of the contract for wages, over which
the admiralty had a rightful jurisdiction. The action was
in
personam against the master and owner for wages and other
expenses occasioned by the sickness of the plaintiff in a foreign
port in the course of the voyage, all of which were allowed. The
question of indemnity did not arise in this case, but the court
held that, upon the authority of the Continental Codes and by its
intrinsic equity, there was no doubt of the seaman's right to the
expenses of his sickness.
This case was followed in
The Brig George, 1 Sumner
151, and in
Reed v. Canfield, 1 Sumner 195. Though the
last case did not involve the question of indemnity, Mr. Justice
Story, in delivering the opinion, remarked that
"the sickness or other injury may occasion a temporary or
permanent disability, but that is not a ground for indemnity from
the owners. They are liable only for expenses necessarily incurred
for the cure, and when the cure is completed at least so far as the
ordinary medical means extend, the owners are freed from all
further liability They are not in any just sense liable for
consequential damages. The question, then, in all such cases is
what expenses have been virtually incurred for the cure?"
The question of indemnity however, was fully considered by Judge
Brown, of the Southern District of New York, in
The City of
Alexandria, 17 F. 390, which was an action
in rem for
personal injuries received by the cook in falling through the fore
hatch into the hold, and it was held that, upon common law
principles, the claim could not be sustained, as the
Page 189 U. S. 173
negligence through which the accident occurred was that of
fellow servants engaged in a common employment. The court, however,
went on to consider whether the negligence, upon the recognized
principles of maritime law, entitled the libellant to compensation
from the ship or her owners in cases not arising from
unseaworthiness. After going over the Continental Codes, the cases
above cited, and a few others, Judge Brown came to the conclusion
that he could find
"no authority in the ancient or modern codes, in the recognized
textbooks or the decisions on maritime law, for the allowance of
consequential damages resulting from wounds or hurts received on
board ship, whether arising from ordinary negligence of the seaman
himself or of others of the ship's company. Considering the
frequency of such accidents and the lasting injuries arising from
them in so many cases, the absence of any authority holding the
vessel liable beyond what has been stated is evidence of the
strongest character that no further liability under the maritime
law exists."
The general rule that a seaman receiving injury in the
performance of his duty is entitled to be treated and cured at the
expense of the ship was enforced in
The Atlantic, Abbott's
Adm. 451, though it was said in this case, and in
Nevitt v.
Clarke, Olcott 316, that the privilege of being cured
continues no longer than the right to wages under the contract in
the particular case. In
The Ben Flint, 1 Abb.U.S. 126;
s.c., 1 Biss. 562, the claim to be cured at the expense of
the ship is held to be applicable to seamen employed on the lakes
and navigable rivers within the United States.
See also Brown
v. Overton, 1 Sprague 462;
Croucher v. Oakman, 3
Allen 185;
Brown v. The Bradish Johnson, 1 Woods 301.
In
The Edith Godden, 23 F. 43, the vessel was held
liable
in rem for personal injuries received from the
neglect of the owner to furnish appliances adequate to the place
and occasion where used -- in other words, for unseaworthiness.
This is readily distinguishable from the previous case of
The
City of Alexandria, 17 F. 390, and is in line with English and
American authorities holding owners to be responsible to the seamen
for the unseaworthiness of the ship and her appliances.
Page 189 U. S. 174
In
The Titan, 23 F. 413, the ship was held liable to a
deckhand who was injured by a collision occasioned partly by fault
of his own vessel. The question of general liability was not
discussed but assumed. In the case of
The Noddleburn, 28
F. 855, the question of jurisdiction was not pressed by counsel,
but merely stated and submitted. The case is put upon the ground
that, as the accident was occasioned by the master's knowingly
allowing a rope to remain in an insecure condition, the vessel was
consequently unseaworthy. In
Olson v. Flavel, 34 F. 477,
libellant was allowed to recover damages for personal injury
suffered by him while employed as mate, but if there were any
negligence on the part of the respondent, it appears to have been
not providing proper appliances, so that the case was one really of
unseaworthiness. In the case of
The A. Heaton, 43 F. 592,
a seaman was allowed to recover consequential damages for
negligence of the owners in not providing suitable appliances,
although in the opinion, which was delivered by Mr. Justice Gray,
he seems to assume the right of the seaman to recover against the
masters or owners for injuries caused by their willful or negligent
acts. The case, however, was one of injuries arising from
unseaworthiness, although the learned judge, in his discussion,
does not draw a distinction between the cases arising from the
unseaworthiness of the ship and the negligent act of the master. It
is interesting to note that, in
The Julia Fowler, 49 F.
277, a seaman employed in scraping the main mast on a triangle
surrounding the mast was allowed to recover for the breaking of the
rope which held the triangle, and precipitated libellant to the
deck, while in a case almost precisely similar,
Kalleck v.
Deering, 161 Mass. 469, the owners were held not to be liable
for an injury caused by the negligence of the mate in constructing
the triangle and ordering the seaman to use it. In
The Frank
and Willie, 45 F. 494, the ship was held liable to a sailor
who was injured by the negligence of the mate in not providing safe
means for discharging the cargo. As the opinion was delivered by
Judge Brown, who was also the author of the opinion in
The City
of Alexandria, 17 F. 390, the case can be reconciled with that
upon the ground that the
Page 189 U. S. 175
question was really one of unseaworthiness, and not of
negligence.
Upon a full review, however, of English and American authorities
upon these questions, we think the law may be considered as settled
upon the following propositions:
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
failure to supply and keep in order the proper appliances
appurtenant to the ship.
Scarff v. Metcalf, 107 N.Y.
211.
3. That all the members of the crew except perhaps the master
are, as between themselves, fellow servants, and hence seamen
cannot recover for injuries sustained through the negligence of
another member of the crew beyond the expense of his maintenance
and cure.
4. That the seaman is not allowed to recover an indemnity for
the negligence of the master, or any member of the crew, but is
entitled to maintenance and cure whether the injuries were received
by negligence or accident.
It will be observed in these cases that a departure has been
made from the continental codes in allowing an indemnity beyond the
expense of maintenance and cure in cases arising from
unseaworthiness. This departure originated in England in the
merchants' shipping act of 1876, above quoted,
Couch v.
Steel, 3 El. & Bl. 402;
Hedley v. Pinkney &c.
Co., 7 Asp.M.L.C. 135, 1894 App.Cas. 222, and in this country,
in a general consensus of opinion among the circuit and district
courts that an exception should be made from the general principle
before obtaining in favor of seamen suffering injury through the
unseaworthiness of the vessel. We are not disposed to disturb so
wholesome a doctrine by any contrary decision of our own.
2. It is insisted, however, that a lien is given upon the vessel
by a local statute of Wisconsin, Rev.Stat. of 1898, sec. 3348,
Page 189 U. S. 176
repeating a previous statute upon the same subject, which
provides that every ship, boat, or vessel used in navigating the
waters of that state shall be liable "for all damages arising from
injuries done to persons or property by such ship, boat, or
vessel," and that the claim for such damages shall constitute a
lien upon such ship, boat, or vessel, which shall take precedence
of all other claims or liens thereon. As the accident happened
within three miles of the port of Milwaukee, and as the
Constitution of Wisconsin fixes the center of Lake Michigan as the
eastern boundary of the state, there is no doubt that the vessel
was navigating the waters of that state at the time of the
accident. But the vital question in the case is whether the damages
arose from an injury done to persons or property by such ship,
boat, or vessel. The statute was doubtless primarily intended to
cover cases of collision with other vessels or with structures
affixed to the land, and to other cases where the damage is done by
the ship herself, as the offending thing, to persons or property
outside of the ship, through the negligence or mismanagement of the
ship by the officers or seamen in charge. To hold that it applies
to injuries suffered by a member of the crew on board the ship is
to give the act an effect beyond the ordinary meaning of the words
used. Would it apply, for instance, to injuries received in falling
through an open hatchway, or to a block blown against a seaman by
the force of the wind, though the accident in either case might
have resulted from the negligence of the master? We think not.
The act in this particular uses the same language as the seventh
section of the English Admiralty Court Act of 1861, which declares
that "the High Court of Admiralty shall have jurisdiction over any
claim for damage done by any ship." Construing that act, it has
been held by the Court of Admiralty that it applies to damages
occasioned by a vessel coming in collision with a pier,
The
Uhla, L.R. 2 Ad. & Ec. 29, note, and also to cases of
personal injury,
The Sylph, L.R. 2 Ad. & Ec. 24, where
a diver, while engaged in diving in the River Mersey, was caught by
the paddle wheel of a steamer and suffered considerable injury, but
not to a case where personal injuries were sustained by a seaman
falling down into the hold of a vessel
Page 189 U. S. 177
owing to the hatchway's being insufficiently protected,
The
Theta, 1894, P.D. 280, or to loss of life,
The Vera
Cruz, 9 P.D. 96. As we have indicated above, the statute was
confined to cases of damage done by those in charge of a ship with
the ship as the "noxious instrument," and that cases of damages
done on board the ship were not, within the meaning of the act,
damages done by the ship.
In the case under consideration, the damage was not done by the
ship in the ordinary sense of the word, but by a gangway, which may
be assumed to be an ordinary appliance of the ship, being blown
against the libellant by the force of the wind.
It results that the first and third questions must be
answered in the negative.