Gould v. Christianson

10 F. Cas. 857

Opinion

BETTS, District Judge.

Both parties have gone into very extended proofs in support of their respective pleadings and to repel the allegations brought against them. One commission was executed at Valparaiso and one at Canton; ten other depositions were taken out of court, and six witnesses were examined orally on the hearing. It is not important to analyze, in this opinion, this mass of testimony. Its general bearing throughout is in contradiction of the inflamed charges of the libel, and goes to prove the conduct of the respondent, in the treatment of the libellant, to-have been, ordinarily, mild and unobjectionable. This is the tenor of the evidence given by the libellant’s own witnesses, who were in the ship with him — not merely the crew, but passengers in reputable walks of life, who may be supposed to appreciate personal rights more justly; whilst the rest of the crew, and- all the passengers, including a supercargo and the American consul at Valparaiso, speak in unqualified terms of approval of the general deportment of the respondent in his command, and in regard to-the libellant, so far as his situation came under their notice or they heard him speak of it. But, abating the exaggerations in the statement of the libellant’s case, and making l)road subtractions from the evidently prejudiced representations of two of his witnesses, the boy Childs and the carpenter, I think there is direct and unimpeached evidence, that on two or three occasions the respondent assaulted the libellant and committed violence upon his person, in a manner not justified by the proofs — first, in pushing the libellant forcibly across the deck, and accompanying the act with a blow or slap on the side of his head, for a breach of etiquette in walking on the weather side of the quarter-deck; again, in cuffing him for awkwardness or lack of activity in setting the pump to work; also, in twitching his head backwards and slapping him for failing to know and find a particular rope he was ordered to haul upon; also, in pulling off the libellant’s belt, striking him over the shoulders with it, and throwing it overboard, in presence of the passengers, and taunting and deriding him for his clumsy and ungainly dress and appearance; and again, for striking him across the small of his back with a rope’s-end, when he was stooping down in the effort to raise from the deck one end of a yard with a wet sail on it. The court is very careful not to be carried away by the picture given in the libel of this last-named transaction, or by the dubious colorings applied to it by the testimony of the boy Childs, and of another sailor, because their testimony is inconsistent with the after conduct and representations of the libellant himself, and because their credibility as witnesses, if not legally impeached, is much impaired by the testimony, of the passengers and of others of the crew. Yet, I cannot deny my belief of the fact that a blow with a rope was given at the time by the respondent. This is the substance of the credible proof in support of the charges in the libel. It may embrace another instance or two of like character; but no punishment or a more aggravated kind appears to have been inflicted on the libellant by the master.

The argument for the defence is, that If the master has not succeeded in wholly discrediting the evidence against him on this subject, he was justified in law for his acts, under the circumstances and in the relation of the parties to each other; and that, in respect to this minor, the master stood emphatically in loco parentis, and was empowered to correct him under the same immunity that a father may correct a child. The rightful authority of a master to correct a mariner at sea, for malconduct or culpable negligence on shipboard, is not now in debate. The libellant’s action is put on the footing, that he was entitled to a privilege or exemption in this service, which distinguished his liability to the authority of the master from that of a common sailor; and, if not, that the punishment he received was excessive and cruel. It is in proof that the libellant was about eighteen years of age, and of a delicate constitution, and was desirous of making a long sea voyage to benefit his health and learn navigation with a view to that profession. He was of highly respectable connections, and had been brought up in a distinguished family and with cultivated and refined tastes. He had never been accustomed to hard labor, and was entirely without experience of the exactions and hardships of seafaring life. Prom these considerations, his father and friends were opposed to his undertaking the voyage; but, yielding to his persistency, they obtained a berth for him on board the ship Commerce, commanded by the respondent The libel-lant’s father explained the young man’s situation to the respondent, and besought for him treatment on board which might render the service useful and encouraging to him, and contribute to strengthen his constitution and health. The master was reluctant to receive him and another young man, his companion, of about the same age and position in society, alleging that sons of gentlemen were troublesome in merchant ships and proved to be poor sailors, and that the libel-lant, if he engaged in the voyage, would find the service more severe than he anticipated, and become dissatisfied with his position. He was, however, accepted as one of the crew, and signed shipping articles for the voyage as a boy. He was stationed in the steerage with the carpenter and another boy, and was not put in the forecastle with the common sailors.

The old distribution of titles and rank amongst the ship’s company ² has, in respect to boys at least, gone into disuse in modern times. In American ships, cabin-boys, apprentices or pupils, and raw or green hands, are all rated as boys, without regard to their ages. The full-grown man, if not an ordinary seaman, ranks as a boy. Cabin-boys are usually attendants upon the master or steward, are regarded rather as servants than as mariners, and are rarely put to gen-«ral ship’s duty. It is otherwise with apprentices or pupils; but, as they serve under special articles or hiring, their cases come less under the supervision of the law maritime than those of other members of the crew. In this case, the libellant was a boy, in a general and nautical sense. He was a raw hand, and, having signed the shipping articles, was subject to the rules and authority of the ship, in every respect, according to his capacity and experience, the same as an ordinary seaman. The master might rightfully punish him for delinquencies, in the same manner as a common sailor, and, when the misfeasance was of a hind to call for personal chastisement, there was nothing in his position which exempted him from its infliction. Nevertheless, the effect of the infliction of unjustifiable punishment upon a delicate, educated and sensitive youth, and upon a hardy seaman, inured to rough usage from officers and from his messmates, would be widely different, and the consequences to the master for the wrongful act ought not to be the same. In my judgment, it is proved in this ease, that personal chastisement was applied to the libellant in several instances, where no necessity is shown for its infliction. It was administered for' very trivial delinquencies, if the acts or omissions of the libellant could be so termed, and abruptly, without calling the libellant to explain his conduct, or giving him an opportunity to offer apologies or amends for it Nor did the master pronounce it faulty, so as to afford a caution to the libellant or the crew against its repetition. The correction administered was the only admonition given, and in this respect the method of instruction was the same that it would have been if the libellant had been an irrational animal. This was unwarranted in law. A master has no authority to fall upon a mariner with blows for every inadvertency or act of misbehavior, unless the urgency to subdue him instantly or to resist some outrage threatened by him, be palpable. Nothing mutinous or violent or refractory, on either occasion, on the part of the libellant, is shown. I think it clear, upon the proofs, that the punishments complained of were exceedingly slight in kind, inflicted no injury upon the person of the libellant, and were only calculated to wound his pride and sensibilities. They do not, therefore, demand any startling reparation by damages, and, but for some circumstances peculiar to this case, the court would feel constrained to award little beyond costs and nominal damages. But the relation of the libellant to the master and to the ship presents considerations both of a general bearing and special to the case, which deserve notice. The government and discipline on board ships at sea being necessarily largely in the discretion of the master, courts can exercise little more supervision than to see that the discipline is administered temperately, and with reasonable regard to the capacity, constitution and feelings of the crew. Rice v. The Polly and Kitty [Case No. 11,-754], If there arises a necessity for corporal restraint or punishment to individuals of the crew, the- same measure of severity is not permitted towards the inexperienced, the feeble of frame or the improvident, as towards thoroughly trained, robust and perverse offenders. The libellant was under physical infirmities, of which the master was aware, which called for leniency and forbearance, if an order failed to be promptly and correctly fulfilled by him at the instant it was given. His eyesight was bad, he was of slender strength, he was timid in undertaking work which was strange to him, and he was awkward in learning. It should, accordingly, have been the occasion for careful teaching, or at most for reproof, if he failed to find or haul upon the right rope at once, or bungled in rigging up the pump, or went aloft clumsily or with hesitation, or was prone to cover himself with more clothing than was convenient to an easy and prompt action on duty, rather than for using a rope’s end upon him, or boxing his ears, whether either produced bodily suffering or not. The offences set forth in the answer, in excuse of the corrections given to the li-bellant, appear to have been chiefly inad-vertencies, or the results of ignorance, and his failure to lift at once the spar and sail for which he was struck across the back, if owing, in a degree, to the lack of a hearty good will for the work, must also be deemed, on the evidence, attributable in part to the weight of the spar and sail, compared with his actual strength. It appears to me, that every instance of misconduct or neglect alleged against the libellant was a fit subject for expostulation, caution or reproof by the respondent, and did not demand personal chastisement to correct the error or stimulate the libellant to a proper performance of his duties. If he was to be regarded and treated merely as a sailor, yet, as he was an educated and intelligent person, the master should have appealed to his reason and sense of right, to lead him to obedience, before resorting to blows.

The case presents another aspect, which should be adverted to. The libellant was making an experimental voyage, partly with a view to acquaint himself with navigation and the duties of a seaman, in order to qualify himself for that calling. It is of national concernment that the merchant marine should be supplied with men of intelligence and character, not only to officer the ship, but to fill every station on board of her. Nor is this consideration limited to the importance of having the ship’s company made up of men competent, in every emergency, to navigate the vessel, and to deal intelligently with her lading, nor to the advantages to be derived by commerce and trade alone, from such a composition of a crew. Orews of American ships, if a creditable and true representation of American intelligence and morals at home, would abroad, wherever they went, become envoys more efficient than diplomacy or arms can send forth, in spreading arts, culture, religion and the love of peace and liberty. They would efface the disrepute attached, in a degree, to the calling of a sailor, and would render those who fill this vast field of enterprise on the high seas, common participators, in reputation and worth, with the merchants whose business they transact The country has thus a deep interest in encouraging young men of capacity, ambition and good character, to seek employment in' the merchant marine, and in having the ship of the merchant, like his counting-house, become to a school to his employés, for the culture of general intelligence and refinement of manners, together with a thorough knowledge of their special pursuit. The coarse and rude usage which the libellant received from the respondent is not, then, in my judgment, to be estimated solely by the consideration of the positive bodily harm which accompanied it; but the misconduct of the respondent is to be measured with some regard, also, to the broader interests, both those of navigation and those of a public nature, affected by it, in view of its tendency to deter sensitive and worthy young men from entering the merchant’s service as mariners. Nor is it to be overlooked, that, in appreciating the wrong received from torts of the description proved in this case, the wound to the libellant’s pride and self respect is entitled to weight, in determining the damages to be awarded him. Although, then, I hold the respondent acquitted of any wanton maltreatment of the libellant, and of any intentional cruelty towards him, and of any design to disgrace and humiliate him by the mode of punishment adopted, and although the actual injury received by him therefrom was inconsiderable, and was not made matter of complaint on-board, yet the respondent was culpably in fault in using force upon the libellant, on the-occasions where moderate reproof and admonition or plain instruction to his inexperience was all the correction his delinquencies-seem to have demanded. The humiliation and suffering to the libellant’s feelings, in being subjected to corporal punishment, must have been greater than would have been, experienced by a lad brought up roughly and with associates accustomed to like treatment; and this consideration will properly enter into -the estimate of damages.

A master of a vessel, under the imputed authority of a parent over his crew, or even over mere boys under his charge, cannot claim the exemption or immunity which a father enjoys, to chastise a child at his discretion, without responsibility to the law, by punishments other than such as are cruel and injurious to the life or health of the child or-are a public offence. On the contrary, a ship-master is liable directly to a minor for every personal tort committed upon him without legal justification. The considerations before suggested will, in this case, augment the damages beyond a mere remuneration for the bodily injury sustained by the libellant, but will not entitle him to vindictive- or aggravated damages. I shall decree him $100 damages and his costs. Decree accordingly.

2 The persons ordinary for sailing in ships have divers denominations: The first, which is the master, known to us and by most nations both now and of old, and especially by the Roman laws, ‘•navicularius” or “magister navis”; in English rendered “master”; or “exercitor navis”; in the Teutoniek “skipper”; by the Graecians, “navarchus” or “nauclerus”; by the Italians, “patrono.” But this is only to those vessels that are ships of burden and of carriage; for to ships of war the principal there is commonly called “commander” or “captain.” The next in order of office to the master, is he who directs the ship in the course of her voyage, by the French called “pilote”;' by the English and Flemming, “steersman”; by the Romans, “gubernator”; by the Italians, “nochi-ero pilotto,” and “navarchus,” as Gerettus writes. The third is esteemed the master’s mate or companion, chiefly if the master be steersman himself; of old by the Graecians and Romans called “proreta”; his charge is to command all before the mast. His successor in order is the carpenter or shipwright, by those two nations of old called “naupegus” by the latter; by the first “ealaphates.” From the loins of one of that rank sprang that great emneror Michael, surnamed “Calaphates,” who denied not to own the quality of his father among his regal titles. The very name of “chalaphate” the Venetian and Italian still use to this day. The next who succeeds in order, is he who bears the charge of the ship's boat, by the Italians called “brachierie”; by the Graecians and Romans, “carabita,” from “carabus,” which denotes the boat of a ship. The sixth in order, especially in ships of burden, is the clerk or purser, by the Italians called “scrivano”; whose duty is the registering and keeping the accounts of all received in or delivered out of the ship; for all other goods that are not by him entered or taken into charge, if they happen to be cast overboard in a storm, or are stolen or imbez-zled, the master answers them not, there being no obligation on him by law for the same; his duty is to unlade by day, not night. The seventh, a most necessary oflicer, as long as there are aboard bellies, sharp stomachs and provision, called the “cook.” The eighth is the ship's boy, who keeps her continually in har-bours, called of old by the Graecians, “nauphi-lakes”; by the Italians, “guardino”: These persons are distinct in offices and names, and are likewise distinguished in their hires and wages: the rest of the crew are under the common name of “mariners”; by the Romans called “nautae”; but the tarpollians. or those youths or boys that are apprentices, obliged to the most servile duties in the ship, were of old called “mesonautae.” 1 Molloy, bk. 2, c. 3, pp. 341,