Lorang v. Alaska S. S. Co.

2 F.2d 300, 1924 U.S. Dist. LEXIS 1135, 1924 A.M.C. 1476

Opinion

NETERER, District Judge

(after stating the facts as above). The motion to strike the parts of articles VI and YII specified in the motion is granted, and as to article VIII as set forth is denied. The motion as to the portions of article XI moved against is granted, the same being clearly frivolous and irrelevant. It is immaterial whether the defendant carelessly and negligently took on board the cargo of copper, or whether there wore no lights as set forth in article YII, or whether the defendant made inquiry with relation to the condition of the weather.

The plaintiff seeks to have his claim for injury measured by the common-law standard and to have a trial by jury instead of under the admiralty rule. (D. C.) 298 Fed. 547. He may determine what law he will rely on. The Fair v. Kohler Dye Co., 228 U. S. 22, 25, 33 S. Ct. 410, 57 L. Ed. 716; C. S. Ann. Supp. 1923, § 8337a. For injury he had two remedies—one in admiralty, where the general seaworthy condition of the ship might be material as evidence of negligence and basis for recovery, and in such action the seaman is entitled to recover wages for the voyage and maintenance and cure) irrespective of negligence; or he may “at his election maintain an action for dam-, ages at law” (section 8337a, supra), and in such ease the injury and the proximate cause thereof, and the measure of compensation, if any, is the issue, irrespective of the weather reports or construction of the ship, except in so far as such construction is the proximate cause of the injury. The plaintiff having elected to pursue his remedy at law, the issue must be determined according to the principles of the common law. The West Jester (D. C.) 281 Fed. 877; B. & O. Ry. Co. v Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772.

Proximate cause is a natural, continuous, sequence—a continuous succession of events without an intermediate cause, so linked that they become a natural whole, unbroken by any new cause, or undisturbed by an independent cause (Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Berns v. Gaston Gas Coal Co., 27 W. Va. 305, 55 Am. Rep. 304; Couse v. N. Y., L. E. & W. Ry., 49 Hun, 609, 2 N. Y. S. 312; Myers v. Chi., M. & St. P. Ry Co. [C. C.] 101 F. 915; Insurance Co. v. Boon, 95 U. S. 117, 130, 94 L. Ed. 395; Pease v. C. & N. W. Ry. Co., (31 Wis. 163, 20 N. W. 908), the cause that? sets the other causes in operation.

For the remedy invoked, the matters set forth in the complaint and sought to be stricken are irrelevant and immaterial. It is fundamental that a person may be negligent, but if the negligence is not the proximate cause of the injury there is no common-law liability. A seaman, in such action, bears a different relation to the ship than does the cargo, or passenger, or stranger, whose rights rest on a different basis. The Osceola, 189 U. S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171. The cases cited by the plaintiff, a summary of which appears in the margin,¹ have no relation to this issue.

1 The Benjamin Noble, 244 Fed. 95, 156 C. C. A. 523, is a limitation of liability case.

In The Jean Bart, 197 F. 1003, it was held that improper ventilation of the ship was not excused by the Harter Act (Comp. St. §§ 8029-8035).

In The Manitoba (D. C.) 104 F. 145, failure to close the port on the, approach of bad weather was negligence of the” ship, even though the port was open at the beginning of the voyage and was not known to the officers of the ship.

Compagnie Maritime Francaise v. Meyer et al. (C. C. A.) 248 F. 881: To exempt from liability for damage to the cargo under the Harter Act it must be shown that the vessel was in all respects seaworthy and that due diligence was used to make her so.

The Oneida (D. C.) 108 F. 886: The Harter Act does not excuse for unseaworthiness, due to improper loading, making the ship topheavy and unstable, and thus-unfit to encounter the ordinary perils of navigation, which should reasonably be anticipated during the voyage.

The R. P. Fitzgerald (C. C. A.) 212 F. 678: Under the Harter Act the owner must take such reasonable and adequate precautions for the protection of cargo as reasonable foresight may anticipate.

The C. W. Elphicke, 122 F. 439, 58 C. C. A. 421: A shipowner is not exempt under the Harter Act for damage to cargo resulting from unseaworthiness of the ship at the commencement of the voyage, even though he exercised due diligence to make her seaworthy in all respects.

In The E. V McCaulley, 90 F. 511, 33 C. C. A. 620, the court held a tug not negligent in putting to sea after a storm had abated and the signals had been changed to indicate fair weather and favorable winds, and that the insufficiency of the hawser to withstand a storm, where it appears the loss was not attributable thereto, was not negligence.

The Colima (D. C.) 82 F. 665: Judge Brown held a steamer not seaworthy that could not keep out of the trough of the sea during a storm, where she rolled heavily and in three successive large waves was turned over completely, she carrying on deck 47 tons of lumber, her beam being somewhat narrower in comparison with her depth than most steamers of her class, and held that insufficient heavy weights were loaded below, and that such neglect, combined with the tender model of the ship, with the deck load, through the shifting of the cargo when rolling heavily in the trough of the sea, constituted unseaworthiness.

The Salutation (D. C.) 239 F. 421: The weather was threatening, and the master expected a storm, had been lying in the harbor for 10 hours because of threatening weather, and passed out into Long Island Sound with five boats in tow, without inquiring for the reports of the Weather Bureau, which had within a few hours sent out two storm warnings, and paid no attention to its signals, which he-should and could have seen, and a very low and. long-falling barometer. He lost four boats and was held negligent.

Texas & Gulf S. S. Co. v. Parker (C. C. A.) 263 F. 864, a limitation of liability proceeding: It was shown that the master of the ship,, which foundered going from Galveston to Corpus Christi, knew before leaving that a dangerous hurricane was entering the Gulf, and that it would reach the Texas coast before he could expect to reach Corpus Christi, and made no inquiry. It was held that when he knew, or might have upon inquiry ascertained, that a hurricane was approaching, he was negligent in putting to sea and attempting to outrun it with the type of vessel which he had, and limitation was denied. The owner knew of the master’s decision to sail.

Judge Hough, in Nicholson v. Railway Co., 255 F. 55, 166 C. C. A. 382, held that failure to observe storm warnings or to obey them is not conclusive of negligence, but it is evidence of failure in that ordinary care and skill which is a master mariner’s duty. In that case the masters said that they considered it no part of their duty either to observe or give weight to-the Weather Bureau’s advice. The judge said: “This was-an error; we think such duty exists.”'