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(Circuit Court of Appeals, Ninth Circuit. December 7, 1908.)

No. 1,557.

1. SEAMEN (§ 29*)-PERSONAL INJURIES-UNSEAWORTHINESS OF VESSEL. In view of Rev. St. § 4561, as amended by Act Dec. 21, 1898, c. 28, § 11, 30 Stat. 758 (U. S. Comp. St. 1901, p. 3095), which makes it a penal offense to knowingly send an American vessel to sea in the foreign or coastwise trade "in such an unseaworthy state that the life of any person is likely to be thereby endangered," and the purpose of which is to protect seamen, a seaman will not be held to have assumed the risk from such unseaworthy state so as to preclude a recovery from the vessel or owner for an injury resulting therefrom, but the vessel by going to sea in violation of the statute assumes all risks which may result therefrom.

[Ed. Note. For other cases, see Seamen, Dec. Dig. § 29;* Master and Servant, Cent. Dig. § 592.]


A sailing vessel which, before starting for a voyage from San Francisco to Hawaii laden with oil and in tow of a steamer, was equipped with a secondhand anchor chain, used as a part of the towing line in accordance with custom, the links of which did not fit the compartments of the wildcat, on which it was wound, designed to prevent it from slipping, and therefore were not securely held thereby, but slipped when the line was subjected to severe strain, was unseaworthy in that respect, and liable to a seaman who, without negligence on his part, was injured as a result of such insecure fastening, it not being shown that a chain which would fit the wildcat could not have been procured.

[Ed. Note. For other cases, see Seamen, Dec. Dig. § 29.*]


The mate of a vessel being towed in the night in a heavy sea, who was injured while directing and assisting in lashing the anchor chain, used as part of the towline, to the towing bitt after the former lashing had parted and the chain had begun to slip on the windlass, held, on the evidence, not chargeable with contributory negligence.

[Ed. Note. For other cases, see Seamen, Dec. Dig. § 29.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

167 F.-1


Libelant, who was mate of a sailing vessel on a voyage from Port Harford, Cal., to Kihei, Hawail, in tow of a steamer, was injured in the course of duty when 582 miles out from Port Harford and from 1,500 to 1,600 miles from Kihei. Libelant's arm was crushed in such manner that surgical skill was necessary to properly treat it and he requested to be taken back at once to Port Harford for treatment, there being no surgeon on board. This the master refused to do, nor did he communicate with the master of the towing steamer on the subject, but proceeded on the voyage to Kihei, which was reached in about 10 days, libelant's arm being then in such condition that amputation was necessary. Both vessels carried cargoes of crude oil. The wind was favorable for a return to Port Harford, which probably could have been reached in 3 or 4 days. Held, that it was the duty of the master under the circumstances to return at once with libelant to Port Harford unless the steamer would take him back, and that his failure to do so rendered the vessel liable in damages. Gilbert, Circuit Judge, dissenting.

[Ld. Note.-For other cases, see Seamen, Cent. Dig. 187; Dec. Dig. § 11.*

Rights and liabilities of seamen as to medical treatment, see note to The Cuzco, 83 C. C. A. 186.]


An award of $17,500 for a personal injury to the first mate of a vessel earning $150 per month, which resulted in the loss of his right arm and entailed much pain and suffering, held not excessive.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 379, 390; Dec. Dig. § 132.*

For personal injuries as affected by plaintiff's character and condition, see note to Metropolitan St. Ry. Co. v. Kennedy, 27 C. C. A. 138.]

Appeal from the District Court of the United States for the Territory of Hawaii.

In Admiralty. Libel in rem, in the District Court for the Territory of Hawaii, against the American barkentine Fullerton and claimants, to recover damages in the sum of $50,000 for personal injuries received by libelant on a voyage from the port of San Francisco via Port Harford, to the port of Kihei, territory of Hawaii. Decree in favor of the libelant for $17,500. Claimants appeal.

W. S. Burnett and A. Lewis, Jr. (Donzel Stoney, Page, McCutchen & Knight, and Smith & Lewis, of counsel), for appellants.

E. C. Peters and S. H. Derby (E. B. McClanahan and E. A. Douthitt, of counsel), for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge. The libel in this case was filed in the District Court for the Territory of Hawaii by Henry Withof, the first officer of the American barkentine Fullerton, against the barkentine and claimants, to recover for personal injuries received by him. while in the performance of his duties on board the vessel.

It appears from the evidence that the barkentine Fullerton, owned by the Mission Transportation Company of Los Angeles, Cal., departed from the port of San Francisco on December 19, 1906, in tow of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the steam tug Monarch. On December 21, 1906, at a point from five to eight miles off Port Harford, the tow was transferred to the steamer Lansing, and by the latter vessel the barkentine was towed to Kihei, Island of Maui, one of the Hawaiian Islands, arriving at Kihei at 1:30, January 3, 1907. The Fullerton is a four-masted sailing vessel fitted for carrying oil. Her gross tonnage, as appears from the government register, is 1,554 tons, and her net tonnage is 1,494 tons. The steamer Lansing, as appears from the same record, is a vessel of 4,560 gross tons and 3,428 net tons. On the voyage in question both vessels were laden with oil, the Fullerton having on board 15,500 barrels and the Lansing 40,000 barrels. When the Lansing took the Fullerton in tow off Port Harford on December 21st the towing hawser of the Lansing was connected with about 20 fathoms of the port anchor chain of the Fullerton. The chain came on board the Fullerton leading through the hawse pipe on the port side, passed aft near the towing bitt, and then over the wildcat of the windlass on the port side, down through the spurling gate or deck pipe into the chain locker, where the end of the port anchor chain was connected with the starboard anchor chain by means of a large shackle. The wildcat is part of the windlass, and has a mechanism for holding the chain consisting of compartments or divisions on its outer circumference for receiving the links of the chain. To make the holding device effective, it is necessary that the links of the chain shall correspond in length with the length of the compartments or divisions. of the holding mechanism, so that each link of the chain fitting into a compartment shall lie securely and each alternate link be caught and firmly held by the shoulders of a compartment. When the size and shape of the link correspond to the size and shape of the compartment, the wildcat becomes an exceedingly effective holding device, whether the windlass is revolving or at rest; but in the present case the lengths of the links of the port anchor chain did not correspond to the lengths of the compartments of the port wildcat. The lengths of the compartments were each 10 inches, while the lengths of the links of the anchor chain varied from 114 to 114 inches, so that the ends of the links as they were drawn around the wildcat projected over the ends of the compartments, and the holding device was not brought into play, or, at best, only to a limited extent.

When the Fullerton was taken in tow by the Lansing off Port Harford, her port anchor chain, as part of the towing line, was further secured by lashing the chain to the towing bitt a few feet in front of the windlass. This lashing was done by the crew under the direction of the appellee as first officer, and under the supervision of the second officer and master, the latter being on the forecastle head at the time with the megaphone, through which he was communicating with the Lansing. The lashing was done with an inch and a half rope, which had been previously used for a like purpose when the barkentine was in tow of the tug Monarch. The appellee proposed to take a new 34 inch rope for the lashing on this occasion, but he was told by the master that it was not necessary to waste good rope; that he could use the old rope for that purpose, and because the mate, who saw the chain

slipping, protested that it might be dangerous and somebody get hurt, he was told by the master that he could go below; that he (the master), and the second mate would attend to it. The Lansing, with the Fullerton in tow as described, on December 21st proceeded on the voyage to Kihei. At about 10 p. m. of the evening of December 24th, at a distance of about 582 miles from Port Harford, and between 1,500 and 1,600 miles from Kihei, the Fullerton pulling heavily on her tow and running into a choppy head sea, the man on the lookout notified the appellee, who was then on the poop, that the chain was slipping over the windlass. The appellee called his watch together and proceeded to the forecastle head, where it was discovered that the lashing which had fastened the chain to the towing bitt had carried away and had been drawn forward into the hawse pipe. The appellee took the new rope which he had proposed to use when the lashing was first made, and with the assistance of the crew proceeded to again lash the chain to the towing bitt. This towing bitt is about 3% feet square and about 4 feet high. It is on the forecastle head, about 311⁄2 feet forward of the windlass, and extends down through the deck to the keelson, into which it is built. The port anchor chain leading straight from the port hawse pipe to the port wildcat passes within about 12 inches of the port side of the bitt. The appellee took the new rope, and with the assistance of the crew made it fast to the chain near the forward end of the bitt, then passed it around the bitt to the chain near the after end of the bitt, where the rope was passed around the chain and returned around the bitt to the forward end. Here the rope was again passed around the chain, and back around the bitt, and so on, the rope being passed backward and forward around the chain at the two points forward and aft and around the bitt, drawing the chain to within about 6 inches of the bitt. While this work of lashing the chain to the bitt was going on, the appellee was standing on the port side of the chain near the after end of the bitt, directing the work and assisting in making the end of the rope fast to the chain at that point. The rope had been passed around the bitt a number of times when the chain, under a heavy towing strain, suddenly jumped and slipped over the wildcat just as the appellee was connecting the end of the rope with the chain at the after end of the bitt. The jumping and slipping of the chain carried appellee's right arm between the chain and the bitt, where it was jammed and crushed. Members of the crew undertook to release appellee's arm by prying the chain away from the bitt with the capstan bar without effect. The lashing was then cut away and appellee's arm released. The appellee was removed. to the cabin. It was afterwards discovered that the injuries to appellee's right arm consisted in breaking the two bones of his forearm about the middle of the lower third and dislocating the bones of the wrist.

The appellee requested the master to return to Port Harford for medical assistance, stating that he had a very bad arm. The master said he knew, but he could not return; he could not cut loose from his tow. The steward was called, who washed the injured arm, and under the direction of the master it was placed in splints. On ar

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