ter took him back to her house for the purpose of taking care of him. His condition appears to have aroused her sympathy, and she endeavored to raise means to send him home direct, but failed. She then consulted counsel in the case, with a view of making the vessel send him home, and the result was the boy was sent to the Good Samaritan hospital, and thereafter, on March 29th, this suit was commenced.

(8) The master failed and neglected to procure or provide any medical aid or advice for the boy after the arrival of the vessel in port, and was contriving and intending to get rid of him as easily as possible.


(9) When the libelant went to the hospital his arm and leg were still partially paralyzed, and the attendant had to cut his food for him. the trial he appeared to have improved mentally and was able to answer the questions put to him readily and intelligibly. The wound on his head had healed over. The scar is bare of hair and about three inches long and three-fourths of an inch in width, and the depression in the skull is about three-eighths of an inch. He had not recovered from the paralysis of his side, and according to the testimony of the medical expert he may never do so, but probably will on account of his youth. The doctor also thinks that the brain may accommodate itself to the depression in the skull, so that it will not be necessary or desirable to resort to the operation of trephining, but this is at least problematical.

(10) The master did nothing towards sending the libelant home at the vessel's expense, and in my judgment never intended to, and the equivocal and invalid offer made at the trial to that effect was merely made for effect; and the proposition to send the boy home as a passenger on the City of Carlisle, with her present master, considering the duration of the voyage and the treatment he is likely to receive in the mean time, was simply inhuman.

(11) The injury to the libelant was the result of the concurring carelessness of the vessel in lowering the sail without "stopping" the clews at the bunt thereof, and that of the libelant himself in passing directly under the sail when and as he did; but his carelessness was not of that gross character, nor was it the result of such reprehensible motives or purpose, as will forfeit his right to be kept and cured at the expense of the vessel, for he might not have perceived that the clew, when cast off the stay, would reach him, as it would not if he had been on the deck instead of the hatch, in crossing which, instead of going round in front of it, he was actuated by a laudable desire to obey the command of the master with alacrity, and get to the port side of the poop, where he understood he was wanted, by the shortest way and in the least possible time.

These are the material facts in the case. Before proceeding to state the law arising thereon, it may be well to briefly advert to the testimony in support of the last finding, for over this point the chief contention of the parties was made.

The weight of the expert testimony shows that in sending down the topsail good seamanship requires that the clews when drawn up to the bunt of the sail should be "stopped" or tied together there. The dan

ger of sending it down with the clews loose and the clew-irons dangling about is apparent to any one who has given any attention to the subject. The evidence also shows that in good weather, when a vessel is not rolling, the sail is often sent down with the clews loose. But in such cases the vessel simply takes the chances. Then it may be said, "All's well that ends well," but otherwise not.

The libelant must have been aware of the fact that the sail was being lowered with the clews loose, and that the starboard one had swung over with the roll of the vessel and got foul of the stay. He had just come down from the yard, where he had been assisting in cutting the robands to let the sail loose therefrom. When called by the master he was standing on the deck just forward of the main hatch, and probably looking at the man on the stay casting the clew loose. He must have heard the mate's warning, though neither he nor Freer, who stood close beside him, was questioned on that point.

It is also true that the mate testifies he gave the first warning two minutes before the clew was cast off, and the second one one minute before; from which it may be claimed that the warning was given so long before the event as to be no warning at all. But in the nature of things the warning, if given at all, would be nearer the event than this. And when the mate speaks of one or two minutes from recollection, at this distance of time, he merely intends to convey the idea that it was a very short time, -only momentary.

Besides, I think it was the duty of the libelant, under the circumstances, to "look aloft" before he undertook to cross the hatch.

But, as I have found, this carelessness of the libelant is not of such a character as to deprive him of his right to be cared for and cured by the vessel. The fault which will forfeit this right must be some positively vicious conduct, such as gross negligence or willful disobedience of orders. The Chandos, 6 Sawy. 549, 4 Fed. Rep. 645, and cases there cited; The City of Alexandria, 17 Fed Rep. 390. In this latter case Mr. Justice BROWN says, (page 395:)

"The only recognized qualification of the seaman's right of recovery is where the injuries have arisen from his own gross and willful misconduct." And in Olson v. Flavel, 34 Fed. Rep. 479, this court said:

"Where the negligence is concurrent, or both parties are in fault, courts of admiralty will apportion the damages, or give or withhold them, in the exercise of a sound discretion, according to principles of equity and justice, considering all the circumstances of the case."

Citing The Marianna Flora, 11 Wheat. 54; The Explorer, 20 Fed. Rep. 135; The Wanderer, Id. 140; The Max Morris, 28 Fed. Rep. 881; Atlee v. Packet Co., 21 Wall. 389.

There is nothing in the case to indicate that the libelant was either a negligent or willful hoy, but the contrary. He appears to have stood well in the training ship, where he held some petty office, and had made such progress that he was allowed to become an apprentice and go to sea eight months before his period of training had expired. Nor do I think that the rule applicable to an experienced seaman as to skill and pru

dence in taking care of himself ought to be rigidly applied to a boy of 16 years of age, a few weeks at sea, on his first voyage. He was only to receive £28 for four years' service; and was there to be taught and cared for,-looked after in rather a paternal way.

The relation of master and apprentice is well recognized in the English law as imposing a peculiar responsibility on the master. Whether on land or water, he stands to the apprentice in loco parentis; so that the relation is not merely that of master and servant or master and seaman. As Sir HENRY HOBART said in the year 1616, in Coventry v. Woodhall, Hob. 134a:

"The matter of puting an apprentice is a matter of great trust for his dyet, for his health, for his safety. And generally no man can force an apprentice to go out of the kingdom, except it be so expressly agreed, or that the nature of the apprenticehood doth import it, as if he be bound an apprentice to a merchant-adventurer or a saylor or the like."

And although Basquall was not directly apprenticed to the master, he was to his owners, for whom he stood, and whom he represented in all this matter.

On the question of going into Rio Janeiro for surgical aid for the libelant, I do not feel warranted on the state of the evidence as to the wind, in holding that it was the absolute duty of the master to make the deviation, though I am much inclined to think he might very properly have done so. He was 6 degrees east of Rio, and, calling a degree of longitude at that point 55 geographic miles, he was about 232 miles from the port. The master says it was 600 miles. In this he is certainly mistaken, and probably intentionally so. He did not say whether he meant geographic or statute miles, but probably the former. However, the distance is less than 400 statute miles. With a six-knot breeze this distance might have been made in less than two and a half days, which does not seem a great delay or sacrifice to make in a voyage of five months to save the life or mind of a boy committed to the care of the master in loco parentis. And later on he might have gone into Montevideo or the Falkland islands without going 100 miles out of his way. If the vessel was in need of a spar or topmast, I doubt not he would have gone into either of these ports to replace it.

As usual in these cases of suits against British vessels in this court, objection is made to the jurisdiction, because the parties and the vessel are British; and in this case because the contract sued on (the articles of indenture) is not maritime.

And first, this suit is not brought on the articles of indenture, but on a tort committed on the high seas. The articles are mere matter of inducement, by which the relation of the libelant to the ship is shownthat of an apprentice to the owner-as the shipping articles would in the case of a similar suit by a seaman. Besides, the articles of indenture are just as much a maritime contract as the shipping articles. They are both contracts executed on land to be performed on sea. Insurance Co. v. Dunham, 11 Wall. 1; Ben. Adm. § 261.

Before taking this apprentice to sea the master was required by section

145 of the British merchants' shipping act of 1854 to cause him to appear before the person before whom the crew was engaged, and there produce the indenture; and the name of the apprentice with the date of the indenture, and the name of the port at which it was registered, was then entered on the "agreement" with the seaman. Thereupon he was duly shipped as an apprentice on the City of Carlisle for the voyage mentioned in the "agreement" or shipping articles, and has the same remedy against the master or vessel for any injury or wrong sustained by him during the voyage as any other member of the crew; and this in addition to any right of action he may have against Iredell & Sons directly on the covenants in the articles of indenture.

Courts of admiralty in the United States have jurisdiction of torts committed on the high seas without reference to the nationality of the vessel on which they are committed, or that of the parties to them. Such jurisdiction will, in the discretion of the court, be declined in suits between foreigners, where it appears that justice will be as well done by remitting the parties to their home forum. But the jurisdiction will not be declined where the suit is between foreigners who are subjects of different governments, and therefore have no common forum. Bernhard v. Creene, 3 Sawy. 230; The Noddleburn, 12 Sawy. 132, 28 Fed. Rep. 855; The Belgenland, 114 U. S. 355, 5 Sup. Ct. Rep. 860; Ben. Adm. § 282.

There is no reason to decline the jurisdiction in this case. To do so would be equivalent to a denial of justice. The libelant is separated from the vessel. His condition and the circumstances justified him in leaving her; and it is highly probable that the master indirectly encouraged him to do so. The vessel is not expected to reach her home port for many nonths yet. And if he has a remedy on the covenants in the articles of indenture directly against the owners in England, how is he going to get there in the mean time? and when there, where will his witnesses be? The crew have all left the vessel except the officers and two apprentices, and no one can say where they will be in that time. Indeed, it is shocking to think of turning this poor helpless boy out of court in a civilized country without redress for a grievous wrong, upon the theory that he has a remedy in the courts of his own country, when it is apparent that, however just may be the laws of such country and impartial their administration, such remedy is, under the circumstances, to him utterly unavailable.

As Mr. Benedict, in discussing this question, well says, (Ben. Adm. § 282:)

"Nothing within the territory of a nation is without its jurisdiction. ** * All persons in time of peace have the right to resort to the tribunals of the nation where they may happen to be for the protection of their rights. The jurisdiction of the courts over them is complete, except when it is excluded by treaty."

The official log-book was offered in evidence for the defense, on the question of the injury to the libelant and his subsequent treatment. On objection made by the libelant, it was admitted subject thereto.

The British merchants' shipping act of 1854 provides (section 282)

that an entry shall be made by the master in the official log-book in "every case of illness or injury to any member of the crew, with the nature thereof and the medical treatment adopted, if any;" and section 285 of the same declares:

"All entries made in any official log-book as hereinbefore directed shall be received in evidence in any proceeding in any court of justice, subject to all just exceptions."

But this act does not settle the question for this court. So far as it declares the admissibility of the log-book as evidence, it is only in force in British courts. By the law of this court, the lex fori, the competency of evidence in a proceeding before it, must be determined, and not that of Great Britain. Whart. Confl. Laws, § 752. However, I think the book is admissible under our law, as prima facie evidence of the truth of the entries required by the British act to be made therein. Ev. § 495; 1 Whart. Ev. § 648.

1 Greenl.

But the entries in the log are shown to be materially untrue, and could not well have been made contemporaneous with the events to which they relate. Under no circumstances could they have any more weight, as evidence, than the master's statement on oath, as a witness, which I am constrained to consider unworthy of credit.

It is also objected that the suit "joins a libel in personam with a libel in rem. "" This objection comes too late on the argument. It ought to have been made, if at all, by exception to the libel before answer. And if it were well taken now, and it had any merit, the court would allow the libelant to dismiss as to the master.

I had occasion to examine this subject in the case of The Director, 11 Sawy. 493, 26 Fed. Rep. 708, and the conclusion there reached was that the admiralty rules, from 12 to 20 inclusive, relating to joinder of parties or causes of suit in certain cases, do not apply to cases not therein enumerated; and that such cases may be proceeded in, in this respect, under rule 46, in such manner as the court may deem expedient for the administration of justice; and also, that where the facts of the case establish the liability of the master, and give the libelant a lien on the vessel, as well, for the amount of his claim, it is proper and expedient that the proceeding against him and the vessel be joined in one libel.

This case is not within any of the admiralty rules aforesaid regulating the joinder of causes of suit, and therefore comes under rule 46. The claim of the libelant, if established, is certainly a lien on the vessel; and a suit to enforce it may include a cause of suit against the master, arising out of the same facts. The Clatsop Chief, 7 Sawy. 274, 8 Fed. Rep. 163; Ben. Adm. §§ 396, 397.

This I believe disposes of the casé, except the question of damages. Assuming, as I do, that it was the duty of the vessel to take care of the libelant, at least to the end of the voyage, including such medical treatment as was proper and could reasonably have been obtained, as decided in The City of Alexandria, supra, in Reed v. Canfield, 1 Sum. 195, and The Atlantic, Abb. Adm. 451, the damages under this head will be

« ForrigeFortsett »