LAFOURCHE PACKET CO. V. HENDEHSON.
871
greater or less extent than in the other. (2) The method of operating motors having independent energizing circuits, as herein set forth, which consists in directing an alternating current from a single through both circuits of the motor, and varying or modifying the relative resistance or self-induction of the motor circuits, and thereby producing in the currents differences of phase, as set forth."
Thos. B. Kerr, for complainant. Seward Davis, for defendant. SHIPMAN, Circuit Judge. The bill of complaint, so far forth as it relates to letters patent No. 511,559 is demurred to upon the ground that the patent is for a mode of operation which involves only the function of certain machines or apparatus, and is therefore, upon its face, for a process which is not patentable under the law. The patent is not for a function, but is for a new method of producing an electrical result, and the method is carried out or produced by the use of apparatus. The Telephone Cases, 126 U. 8.531, 8 Sup. Ct. 778. The demurrer is overruled, with costs.
LAFO"GRCHE PACKET CO. v. HEXDERSON. (Circuit Court of Appeals, Fifth Circuit. 1'0.810. 1. 2. ApPEALS IN ADMJRALTy-AsSIGNMEl'I'l'S OJ" ERROR.
:May 23, 1899,) ,
An assignment "that the court erred in holding that libelant was entitled t'.> any compensation for the injuries received" by him is too general. It seems that, under the general admiralty practice, a Seaman injured through the use of defective appliances furnished by the owners of the ship may proceed against the ship for damages.
SHIPPING-INJURIES TO SEA}lEN-LIABILITY OF SUII'.
3.
SAME-NEGLIGENCE-DEFECTIVE Apl'I,IANCES.
Where a skid used to stow barrels the hold was brol,en on a prior voyage, to the kno,vledge of the ship's officers, so that, through the sagging of one side of it, a bolt worked up and caught a barrel being sent dowP., and threw it off and against a seaman engaged in tp.e work, the ship was liable for the injuries intlicted.
A seaman does not assume the risk involved in the use, under 'orders, of patently defective appliances furnished him ,br the master. o. SAME-DAMAGFJs-ExCESSIVENESS. 'Vhere both bones of the leg of a seaman were broken through negligence, and after the injury he was grossly neglected by the officers of the ship, and the injury was permanent and greatly damaged him in his earning capacity, <Iamages of $2,000 were 'not excessive.
4.
'SAME-ASSUMPTION OF HISK.
Appeal from the District Court of the United States for the Eastern District of Louisiana. On or, about :VIareh 8, 1898, 'William Henderson, appellee, was shipped at Xew Orleans, La., as a seaman in the service of the steamboat Lafourche, for a to Thibodaux, La., in Bayou Lafourche, and return to New Oi'leans, at the wages of $80 per month and found. The boat made the outward trip with libelant in the service thereof. On the return trip,and ,yhile said vessel wa,; lying at a plantation on Bayou Lafourche, the said Henderson, with others of the crew, was duly ordered to go into the hold or hull of said steamboat to aid and assist in storing' carge. Accordinglr he proceeded to the place or part
872
94 FJJDERAL REPORTER.
()f .said hull or hold deSignated,· and proceeded in tbedischarge of the dutie'il required of him. ."'hile so occupied, and while carg-o was being taken on board and stowed In the hull of said vessel, sala: Henderson· was required by the proper officers of said vessel, and the duty assigned him, to stand by the lower end of the skid leading from the main deck down to the floor in the hull, so that, as barrels of sugar skated or "skidded" Into the hold of said boat from the main deck would arrive at a point near, he could "cut". (turn) them aroullLl, for others of the crew engaged thereabout to roll them to theafterpart of the hull for storage. ·While said Henderson was perfonning- the duties above mentioned, a barrel of sugar was placed on the skid and started on its way down. After this barrel had gotten about halfway. down, and traveling with great velocity, It around, and, Instead of cOllt.inuing down the skid, it rapidly rolled off over the side; and, before libelant coulclescape, his left leg was caught by the barrel against It stanchion,and both bones of the leg were broken. ToJhe knowledge of the officers of saiclsteamboat, acquired on a prior trip, one sille of the skid was weak, one hook broken off, and the iron facing of the runner broken. After sustaining the injury complained or, libelant was carried ·uJ) out of· the hull, taken aft, and pl/iced on some freight. A doctor came on board and professed to set the broken limb,' which was then bandaged; and libelatit;was laid on some stllff spread on the boat's deck, made to answer the purpose of a mattress. Appellant was injured about 4 or 5 o'clock Wednesday afternoon, and from that time until Thursday night he was left on the boat's deck, as above mentioned. 'Vhen the crew was paid off, his wages were sent down to him. After the trip was conclUded, the crew soon left the boat, except libelant who was permitted to lie on the boat's deck in his helpless condition. Some hours after the arrival of tue vessel in port, a harbor police officer came on board, and found appellee lying In a helpless condition on deck, ascertained from: him the nature of his Injury, and sent for the Charity wagon, which In due time arrived, and took appellee to the GhRrity Hospital. All these facts are undisputed. The opinion of the court deals with controverted matters. Because of the injuries sustained, the loss of wages. and the impaired capacitr,toea:rn wages, the paip., and the negleCt of appellee Rfter he was Injured, he brought this libel 11l reIn to recover the. sum of $3,000. After a hearing· of the' case, and Riter a personal Inspecti6n of the skid causing RPpellee'l'l injuries, the court renderedR ,decree In favor of the libelant for the stim .of $2,000. On this appeal, the following· are the assigned errors: "(1) That the court erred In holding that lioolRnt was entitled to Rny eompensation for the injuries received; (2) that the Injuries complained of in the said libel were not caused by Rny fault or negligence on the part of the clRimant, or any pl'rson for whonl clalmRnt was responsible; (3) that the defect. If existing at all, 'was R pRtent defect, and the risk aSStlmed was one of the assumed risks of the employment,and was known to libelant; (4) that. even If libelant was entitled to any allowance whatever, the allowance granted herein is excessive."
Hewes T, Gurley, for appellant, . JohnD. Grace and A. B. Phillips, for appellee. Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. .After stating the facts, the opinion of the court was delivered by PARDEE, Circuit ,Judge:· The first assignment of error is too general to warrant attention, but the tpcover' the point sought to be raised,-that, while the district court,sitting in admiralty, had jurisdiction of the demand, yet the libelant had no right to proceed ill rem, because had no maritime Ueri'on thesb.ip;nor any lien ul).der the domestic law for damages resultiJ;lg from his personal injuries; as set forth in the libel. In the district and circuit courts in this circuit, it has never been seriously uuder the general admiralty practice, a seaman wl:lqiis.injured tllr0il.gh the u!'le of defective appliances furnished by the owners. of the,ship has a rightto proceed against , " . I. ' . ' . '
LAFOURCHJ;; PACKET CO'. V. HENDERSON.
873
the ship to recover his damages. cases of the kind hilve been brought to this circuit court of appeals since its organization, and jurisdiction to proceed in rem has been taken for granted. The Whisper, 2 C S. App. 618, 4 C. C. A. 654, and 54 Fed. 896; Johnston v. Johansen, 30 C. C. A. 675, 86 Fed. 886. The right of other persons than regular seamen, employed on a ship, to proceed in rem to recover damages for personal injuries, has been tacitly recognized in all the courts of the United States, and has been affirmatively recognized in The Christobal Colon, 44 Fed. 803, decided in the Eastern district of Louisiana; and there may be other cases to the same effect. 'We know of none to the contrary. The precise question now presented is not necessarily raised on this appeal, because the domestic law gives the libelant a lien and privilege. The Lafourche was owned in Louisiana, and was running from :New Orleans to various places through Louisiana waters; and the injuries eomplained of were suffered on Bayou Lafourche, in the state of Louisiana. Article 3237 of the Louisiana Revised Civil Code provides as follows: "The following debts are privileged on the price of ships and other vessels, in the order in which they are placed: * * * (12) Where any loss or damage has been caused to the person or property of any individual by any carelessness, neglect or want of skill in the direction or management of any steamboat, barge, flatboat, water craft or raft, the party injured shall have a privilege to rank after the privileges above specified. * * *"
The second assignment rai.,es the question whether the injuries to the libelant were caused by any negligence or fault on the part of the ship. As recited in the statement of facts, it is undisputed that the libelant received his injuries while in the line of his duty, and while using with his fellow servants a broken skid, and that the skid so U<5ed had for some time been broken, on or before a prior voyage, and its condition was known to the officers of the ship. The evidence of the libelant and his witnesses is to the effect that, through the sagging of one side of the skid on which side the hook was broken, a bolt worked up about the middle o'r belly of the skid, which caught the barrel then being sent down into the hold, cut one of the hoops, and otherwise threw it off the .,kid, resulting in the libelantis injury. John Williams, the witness who testified the clearest on this point, was the man who placed the barrels upon the skid, starting them down the hold. His evidence is so pointed that we extract as follows: "Q. Do you know what the cause was of that barrel twisting around on that skid? A. 'When the barrel twisted around on the skid, and this man hollered, I went down in the hold to assist him; and when I went down in the hold to assist him I looked on the side of the skid, and I saw there was a bolt just about that high up,-that had risen up about an inch,---'-and the hoop of the barrel had struck it, and the hoop was cut plumb in two. Q. Was it proper for that bolt to be extending up over and above the side of the skid? A. sir. Q. 'What was the cause of the bolt extending up that way'! A. The skid was broken one side. It had only one prong, whereas it should have had two. One was broke, and they were fixing the skid with a block,-working the skid with a block. It was put underneath the skid, and it would slip out, and that would make this bolt work up. Q. Whose duty was it to pay attention to those blocks? A. Most any that Was in the hold. Q. What blocks were they? A. They were little, short blocks, put under the skid to keep it from sliding up. Q. Pieces of 'plunder,' they call it on the boat? A. Yes, sir. Q. You say this
874
94
REPORTER.
bolt had worked up through there? A. Yes, sir. Q. To your mind, was the up of thetlolt thecause of the catching of this barrel and throwing the M'rrel off? (Objection fs urged, being a matter of opinion.) A. Yes, sir. Q. Was there any other thing present, or thesillid in any other· condition, that could, have brought about that result, except .the fact that this skid was broken, andbloc4s.put under it? A. The skid was broken on the side, and it was kept propped UP witll these blocks; and, when these blocks slipped out, It let the skid doWn, and that would make this bolt jump up. Q. Do you know whether a complaitil' was made to the carpenter ·about the condition of that skid? A. Yes, sir; 1'made it myself. Q; 'When? A. While the boat was coming down Bayou Lafo,u).'che. Q. What did you tell this carpenter? A. I said that the skid !:)e ,fixed,-it was mighty dangerous,-and he told me it was none of my' buslrteSs. * * *' Q. After Henderson got hurt, was any more barrels'(jut down on that side?· :Ai Yes, sir; I went down and shoved the block down underneath the skid, .and took a long piece of iron and drove the bolt back;ang1:he next man tljat tOok his place, off the barrels, I told him to be particular of that block rtIl'derneath, anff'whenever it got loose to let me know, and I would stop the. work so that he could put it underneath again. * * * Q.They didn't put lI'·tl:tbody down there to look after the blocks, then? A. No, sir. Q. I speak about this block underneath the skdd. ,A. That was his business, but lie didn't know it.. Ko one didn't tell him about it. That was his first trip on,the lJoat.. He thought the skIds were in proper shape. lIe didn't to the blocks at all. Q. Nb one had warned him about the defecti'Ve'co':lJ.dition of the skid? A. No, sir. * * * Q. You said something awhile ago 'about 'a bolt that waEi in the skid,-about a catching on this hoop ofthe barrela'1:\il: cutting it. ' Whei'e was thatbOlt? (Objection is urged to this exalliihatIon, nothing aboutwhi,ehhasbeenbrbught outon thecross-examination.l A. The swagging of the broken part-' .Wll'en the 'bloc-Ii would slip out, it would swag this way, and make the bolt rise upon the side. Q. About how far 'down tile skid was this bolt?"A. It WllJ; about middle ways. Q. Each side,of the'sltidJeonsists of seve'!lal"pieces of wood bolted together. Now, this .bolt ofithe bolts to.theskid? . A.;lt ;was one Qf the bolts that held baD.l\ on the, ; .Q. AbollthoW far A.bQut the belly of ,the skip? ;A, A.oout middle, ways of tlJ.e, s!Hd,. Q. Yoq about the hook being btoken;'1h3.t allowed tMskld to 'A. Yes,' sir;'and it made the bolt rise up,' i :Q(i And that malie:the' bolt downiin the beHy of the skid work up? A. :·Yes, sir;";': ' , I
,py, ,and is not disby anY'0( the :'The cont,eriHori of. tMappellap.ts, is that the 'libelant :,was injureo. the'Jiegiigence' of fellow Servant in placing M'rI,'els on the tpa{ the .brokennookof the mattE;l"r. , trhlSC()nte,lltlOn ha£! no in because the J*i'l3ons who were in on,the skid directly lIeri;tit,-deny that any were improperly' placed oil theskid,-and there is no evidence whatever to show that the one barrel which the im'propeI.'ly,placedupOIithe skid. as to of libel, s.ome argumeilt is madew, tb,e ant's witullilses, ibut, from ,an inspection of the record" we l1re unable to see that ,they were· any lessintelHgent or more prejudiced than t.hose witnesses,Wferedby the claiIilant. The resuV, to our mindl3, on all the evidence, IS tlie,fttr,UlcoIlvi<;tio:Q. thatttie libelant received which was an inhis injuries through the. use of the sufficient and defective,ifnot actually dangerous, appliance furnished by the 'ship.. ' ",'.' . ". . · · Under the third"assignment pf errQr appellant contends that Htheskidwasbrokenand defective, and 'the libelant was injured in 'Using the same, still he c'annot 'recover, because the'defect was patent, ·
}orrobOra
LAFOURCHE PACKET CO. V.
875
and he knew it, or ought to have known it, from contact with and observation of it, and in continuing to use the same he accepted the risk. The learned counsel, in a very strong brief, supports this contention by the citation of text-books and adjudged cases in the common-law courts,-particularly citing Bailey, Mast. Liab. pp. 198, 199; Way v. Railroad Co., 40 Iowa, 341; Sullivan v. Manufacturing 00., 113 Mass. 398; McGlynn v. Brodie, 31 Oal. 380; Hayden v. Manufacturing 00., 29 Oonn. 548; W ormell v. Railroad Co., 79 Me. 405, 10 At!. 52,. in which last-mentioned case it is declared as follows: "It is the duty of the servant to exercise care to avoid injuries to himself. He is llnder as great obligation to provide for .his own safety from such damages as are known to him, or are discernible by ordinary care on his part, as the master is to provide for him. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work where there is danger. He must inform himself. This is the law everywhere."
Without discussing or disputing the law as declared in the authorities mentioned, we are of opinion that it is not applicable to the ease in hand. There must be a different rule as to the risks assumed by seamen on board ship from the rule as to the risks assumed by servants and other employes on land. Ourtis on the Rights and Duties of Merchant Seamen (page 11) ' "Tile contract of hire for marine service belongs in general to the entire class of contracts for t)le hire of services, but it also involves, and is governed by, principles peculiar to itself, and which carry it, in very important ,particulars, lle:l'ond the rules applicable merely to contracts of service upon land. Thus, by the 'common law of England and of this country, when a man lets himself to hire, and neglects or refuses to fulfill his engagement, he cannot be compelled to perform it by any restraint put upon the freedom of his person. The remedy of the· other party is solely· in the damages· he may recover for breach of the contract. The same principle prevails in the civil law ('nemo potest prreclse cogi ad factum'), and the same remedy only is afforded to the injured party. But by the law of most countries the mariner's contract is an exception to this general principle. By the French ordinance, the seaman who fails to render himself on board according to this contract can be pursued and arrested wherever he is found, and constrained to complete his engagement. The same provision for his aj:)prehension and compulsion is made in England and in this country. There is also another peculiarity of this contract, in which it differs from other contracts for the hire of services. It is the only form of service stipulated to be rendered by a freeman of full age. known to the common law, in which the employer, by his own act, can directly inflict a punishment on the l'lllployed for of duty or breach of obligation. By the positive law ot' some countries, also, and perhaps by the general law of the sea, the seamen are bound to assist, at the risk of their lives, in defending the ship against pirates; Hnd a refusal to fight is punished criminally. Such Is the law of l!'rance and of England. All these peculiarities of the contract are founded in deep reasons of policy and necessity; and, although they do not give a character to this which takes it out of the general rules and principles applicable to the whole class of contracts for the hire of services, they are important to be stated at the outset, as the prominent features of distinction, reminding us that those general rules and principles will sometimes fall far short of satisfying the exigencies Of a contract so strongly marked by principles of its own."
In Robertson v. Baldwin, 165 U. S. 275, 282, 17 Sup. Ct. 329, thp. supreme court say: . ..
876
e4
FEDERAL
, "From the earliest historical period the contract of the sailor has been as an exceptional one, and. involving to a certaIn extent the surrender of hie personal lJberty during the lJfe of the contract. Indeed, the business of navigation could scarCely be carried on without .some guaranty, beyond the ordinary civil remedies upon contract, that the sailOl"will not de-sert the ship at a critical moment,or leave her at some place where seam¢b are Impossible to be obtained, .-'Cas' Molloy,forclbly expresses it, 'to rot in her neglected brine.' Such desertion Plight Itllvolve a long delay of the vessel:while the, master Is seeking another crew, an abandonment ·ofthe .voyage, an,<l in. some cases the safety of the ship itself., Hence the laws of nearly all maritime nations have made provision for l;Iecuring ·the personal attendance of the crew on board, and for their criminal punishment for desertion.or absence without leave during the life of the shipping articles."
A seaman aboard ship is bound t() perform such services as may be requirell. of him in th,elipe of his emplo;yment. He cannot hold back and refuse prompt obedience because he may deem the appliances fault;y or unsafe. Masters'of ships exercise large powers, and they ma;y legally compel obedience to orders. A seaman necessaril;y surrendersD;luch of his personal liberty and freedom of action, and qe isnever.at liberty, like the landsman, to quit or make much objection to the circumstances surrounding the work -commanded. In Johnson v.,Johansen, supra, which 'V$ a case in many respects simi· lar to the one in hand, in answer to the same objection as the one ' now made, tb,is ,court said:, "It may be, as urged so strongly by the appellant, that the libelant received these appliances and proceeded to use them without objection; but, if this be so, it must be considered that on board ship a sailor is not expected to, nor, as for that matter, permitted, before executing an order, to question the propriety of the order, or the sufilciency of the materials furnished."
The remaining assignment of error is that the damages allowed by the district court are excessive. Oonsidering the very serious injury by. the appellant, in the breaking of both bones in the leg, his ph;ysical suffering, and the neglect he received from the hanili3 of the officers of ,the boat, and the undisputed fact that the libelant is permanentl;y: injured, and greatl;y damaged in his earning capacity, we are not disposed to disturb the amount allowed by the district court. No case is made for the division of damages because of contributary. negligence. The decree appealed from is affirmed..
LEARNED et aI. v. BROWN et al. RUMBLE et al. v. 8..-\.ME. (Circuit Court of Appeals, Fifth Circuit. "
May 31, 1899.)
No. 814. quarters are at a port therein, such place must be treated as her home port. . al).d no lien is given by theIFeneral maritime, for supplies furnished at . '.such port, which are presutried to have been furnished on the credit of. the
1:. MARITIME LIENS-SUPPLIES FURNISHED INCitizens PORT. state, and her headHOME 'Vhere a V"1ssel is. owned. by resident of a