U.S. Supreme Court

THE OSCEOLA, 189 U.S. 158 (1903)

189 U.S. 158

THE OSCEOLA.

No. 98.

Argued December 2, 1902.

Decided March 2, 1903.

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 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 10 feet long lengthwise of the ship, about 7 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 3 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 11 miles an hour against a head wind of 8 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 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:

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.'

'First. Whether the vessel is responsible for injuries happening to one of the erew 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.' The questions of law upon which that court desired the advice and instruction of the Supreme Court are--

Mr. Charles H. Van Alstine for appellants.

Mr. John H. Roemer for appellee.

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

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, sub nom. Rodd v. Heartt, 22 L. ed. 654, 'having regard to our own legal history, Constitution, legislation, usages, and adjudications.'

By article 6 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 Wisbury, '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. Adm. Dec. 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

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 wilful 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. chap. 104, 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

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 engligence 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. chap. 80, 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 & Sons' S. S. Co.