Opinion
Peringer & Thomas and Thos. R. Waters, all of Bellingham, Wash., for libelant.
Kerr, McCord & Ivey and Stephen V. Carey, all of Seattle, Wash., for respondent. NETERER, District Judge.
The libelant was employed by the respondent in the capacity of watchman on the vessel Cleo. The vessel had been launched, and was afloat in the navigable waters, but was not 'finished,' and therefore not in commission, at the time, as an instrumentality of commerce and navigation. Plaintiff, while making his rounds, and in attempting to go from the forward bridge deck to the forward main deck by means of steps which had been constructed and placed there by the respondent, and for that purpose, slipped and fell to the floor of the main deck, throwing the plaintiff to said deck, causing serious personal injury. The night was dark; it was raining; the plaintiff was supplied with a flash light; it was the plaintiff's first round as watchman on that shift. He says:
'I put my right foot on the first step, as I usually did, to determine whether it was safe, and then put my left foot forward, and the ladder slipped below, and I fell.'
He had worked for respondent for eight months before the injury. I think it is established, by positive testimony and inferences from circumstances adduced (Towle v. Stimson Mill Co., 33 Wash. 305, 74 P. 471; Campbell v. Winslow Lbr. Co., 66 Wash. 507, 119 P. 832; Lichtenberg v. City of Seattle, 94 Wash. 391, 394, 162 P. 534; 29 Cyc. 622, 626; Esberg-Guest Cigar Co. v. Portland, 34 Or. 282, 55 P. 961, 43 L.R.A. 435, 75 Am.St.Rep. 651; 4 Thom.Neg. 294; The Themistocles (D.C.) 225 F. 671; Penn. Steel Co. v. Jacobsen, 157 F. 656, 85 C.C.A. 118), that the steps were substantially fastened at the time the ship was launched by cleats, and, if fastened at the top and bottom, the steps could not have fallen, and that the steps were not changed from the launching to the day of the accident. On the day of the accident the main deck was calked and oiled, and the cleats on the main deck at the foot of the ladder were removed while calking and oiling the deck, and the steps were replaced without fastening the cleats to the deck, or fastening the steps at the top. The plaintiff was not advised of the changed condition of the steps.
The respondent contends, as it did before the Circuit Court of Appeals (279 F. 367), that the court is without jurisdiction; (a) he sustaining a nonmaritime relation; (b) if the plaintiff's cause of action is maritime, he is limited to recovery to elements of which there is no proof; (c) if his right is nonmaritime, the evidence establishes that the injury was due directly to the negligence of the plaintiff himself, or that of fellow servants; (d) the evidence fails to establish with any degree of certainty that the injury was due to a default chargeable in law to the defendant.
The plaintiff asserts his right to recovery of consequential damages predicated upon the common law, and cites a long line of cases, exception to neither of which can be taken. The court, in The Moses Taylor, 4 Wall. 431, 18 L.Ed. 397, distinguishes between a remedy at common law and a common-law remedy, and it may be said the same reason applies by analogy to a remedy in admiralty and a remedy afforded by admiralty. Prior to the enactment of section 33 of the American Merchant Marine Act (41 Stat. 988) an action at law by an injured seaman did not change his right of recovery, which was governed by the maritime law. Hanrahan v. Pacific T. Co. (C.C.A.) 262 F. 951. The impotency of admiralty to give remedies afforded by the common law no doubt inspired section 33, supra. The rights in admiralty of a seaman preclude indemnity, and are limited to maintenance, wages, and cure, except for unseaworthiness. The Osceola, 189 U.S. 158, 23 Sup.Ct. 483, 47 L.Ed. 760; Hanrahan v. Pac. T. Co., supra
Thames Towboat Co. v. The Schooner Francis McD., 254 U.S. 242, 41 Sup.Ct. 65, 65 L.Ed. 245; The America (D.C.) 56 F. 1021; The Hattie Thomas (D.C.) 59 F. 297; The Sirius (D.C.) 65 F. 226; The James T. Furber (D.C.) 157 F. 124; The Fortuna (D.C.) 206 F. 573; The Sinaloa (D.C.) 209 F. 287; The Homer (D.C.) 99 F. 795; Pouppirt v. Elder D. Shipping (D.C.) 122 F. 983; The Pioneer (D.C.) 78 F. 600; The Hokkai Maru, 260 F. 569, 171 C.C.A. 353.
The plaintiff has standing in the admiralty court solely because the jurisdiction of courts of admiralty in torts depend upon location. Phil., Wil. & B.R. Co. v. Phi. & H. de G. Steam Towboat Co., 23 How. 209, 16 L.Ed. 433; The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Hoof v. Pac. Amer. Fish. (C.C.A.) 279 F. 367. While the court has jurisdiction, the rule of right applicable, unless the plaintiff bears the relation of a seaman, is the common-law right of recovery. 'Seaman' no doubt once meant a person 'who can hand, reef, and steer-'-- a mariner in the full sense of the word. As conditions changed, and necessities of changes increased, 'seaman' received an enlarged meaning. The cook and surgeon, and employees other than able seamen, were included. Bean v. Stupard, 1 Doug. 11; Allen v. Hallet, 1 Fed.Cas. 472, No. 223. In The J. S. Warden (D.C.) 175 F. 314, a bartender was ranked as a seaman. In The Baron Napier, 249 F. 126, 161 C.C.A. 178, a muleteer, performing the services of a watchman, was given the status of a seaman. In The Buena Ventura (D.C.) 243 F. 797, a wireless operator, employed by another, but placed on the articles at the nominal sum of 25 cents a month, was classed a seaman. Section 4612, R.S. (section 8392, Comp. St.), provides that:
' * * * Every person * * * who shall be employed or engaged to serve in any capacity on board the same (vessel) shall be deemed and taken to be a seaman. * * * '
Whether the libelant, under the facts in this case, shall have the status of a seaman, and his right of recovery be predicated thereon, I do not now think is material; in that sense, however, it may be said that the vessel was unseaworthy with respect to the steps in controversy. The libelant, as watchman, had clear and definite instructions as to his duty, which was to see that the lights were burning fore and aft, that the ropes were properly secured, and that no one trespassed on the boat, and to look out for fire. The employment of the libelant had nothing in common with the painters or calkers on the boat, and I believe from the testimony that the cleats were removed and left unfastened by the persons who oiled and calked the deck.
The libelant in his employment had nothing in common with these parties, and no circumstances are developed which imputed knowledge with relation to their qualifications or characteristics. There is no condition presented to enable the libelant to observe the fundamental elements
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of knowledge of danger to which he was exposed. He was not directly associated with either, and was not immediately employed with them, and over whose conduct and actions he had no control, and against whose carelessness he could not protect himself; no testimony to show that their duties brought the libelant and the parties employed in calking and oiling the deck on this day, or at all, into contact or association, or any relation established by which they might exercise mutual influences on each other promotive of proper caution; but each was employed in different lines of work, engaged separately from each other, neither knowing how the other's work was being carried on, each acting entirely independent, in a different sphere of labor, and were therefore not fellow servants. Asbury v. Hecla M. Co., 103 Wash. 542, 175 P. 179; Brayman v. Russell & Pugh L. Co., 31 Idaho, 140, 169 P. 932; Koerner v. St. L.C. Co., 209 Mo. 141, 107 S.W. 481, 17 L.R.A.(N.S.) 292; Rankel v. Buckstaff-Edwards Co., 138 Wis. 442, 120 N.W. 269, 20 L.R.A.(N.S.) 1180. It was defendant's duty to provide a safe place, and the duty is continuing, and it was the master's duty to warn the libelant of the danger created by the insecurity of the steps. In this it failed. Richardson v. Spokane, 67 Wash. 621, 122 P. 330.
The plaintiff was severely injured. There is no testimony as to sums expended in effecting a cure. At the time of the injury the libelant weighed 200 pounds, and has lost since the injury 30 pounds; has done nothing for two years. At the time of his injury he was earning $144 a month. He was in the hospital 6 1/2 weeks, and confined to his house and most of the time in bed, according to the testimony of himself and wife, and there is no evidence to the contrary, for the greater part of 2 years. He is a sufferer now, the doctors say, of neurasthenia, caused from the injury.
Under all of the circumstances, considering the libelant's apparent physical condition, and the injury sustained, I think he should recover the sum of $4,000.