Schirrmacher v. The Ship "Erskine M. Phelps"

1 D. Haw. 444

• Court: District Court, D. Hawaii
• Decided: October 15, 1903
• Status: Published

Opinion

Estee, J.

This is a libel m rem in admiralty filed on behalf of a seaman on board the ship “Ersldne M. Phelps” for damages in the sum -of ten thousand dollars for personal injuries sustained on hoard- the ship while engaged in his duties as such seaman, on a> voyage from Norfolk, State- of Virginia, toi TIom> lulu in the Territory of Hawaii.

Said vessel left Norfolk on May 1, 1903, arriving in Honolulu on1 the 15th of September, 1903. While said vessel was navigating Cape Horn and during very stormy weather, on July 15th, 1903, the libellant, without any carelessness or negligence an his part, was washed, down on the deck by a heavy sea, thrown between the rads and stanchions of thei ship with great force and violence and sustained a fracture of his right leg. Several others of the seamen were also somewhat injured at this time, but no one of them, so far as the evidence showed, suffered any serious damage save libellant.

There was no medical man .aboard the vessel who could render any surgical aid to the libellant, but thei leg ivas rudely bandaged by the mate, with cloths, and after a day placed in splints and rested in a sling attached to the. ceiling! over libellant’s berth in the forecastle, where the libellant remained for some five weeks, when he was first assisted on deck with the'aid of a cane and a crutch. He again slipped and fell, breaking the injured leg, and had to be carried back to Ms berth, where he stayed until within a few days of Honolulu, when he was again helped on deck. The ship reached Honolulu on September 15, 1903, two months after the accident occurred, hut it was not until the third day after reaching said port, that libellant was removed to the United States Marina Division of the Queen’s Hospital, by the captain of the sliip, where he bias since remained. Thebomesof thei injured leg overlapped about an inch and a quarter, and libellant at the time of the trial was unable to walk save with the assistauce of canes or crutches.

Although the allegations of the libel would seem to indicate an intention on the part of libellant to fasten the blame for the injury primarily on the owners of the vessel by reason of negligence in the loading of her cargo-, resulting in a necessity to shift the same while navigating that well known dangerous locality, Qape Horn, and thus practically causing the injury to libellant by tire listing of the sliip, yet no evidence was introduced in pursuance of those allegations or tending to prove such negligence on the part of the owners of tire ship.

As was said by this Court in the case of Langaas v. The Barkentine “James Tuft,”

(1) decided July 3, 1903:

“Among! the positive duties which the owner of a vessel owes to its crew are to see that the vessel is seaworthy in all particulars: that it is provided with all necessary appliances for the safety of the: ship and of the men; that the ship is properly man,nierl and provided with proper food supplies; and further, that in ease of sickness or injury of any member of the crew, that he shall be given proper cara 'and medical attendance. For a failure in the performance of any one of these duties, the owner of the ship is liable.”

No proof was introduced in this case of a failure in any one of these duties except a neglect to provide proper medical care and attention for the injured seaman.

The case then narrows itself down into the single proposition of whether it was reasonably possible for the. captain of the ship to have obtained proper medical care and aftentioni for this man after the accident which resulted in the breaking of his leg.

At the time this man’s leg was broken first, as is shown by computations made from the log of the first officer, the ship was less than five hundred miles, to be 'accurate soma four hundred and eighty-four miles from Port Stanley, in •the Falkland Islands; and as also appears from the. testimony of the first 'officer, and by reference to his log, ■with winds favorable for making this port within two days. Honolulu, the port of destination, was then seven, thousand seven hundred miles distant, or practically that amount, as the captain testified that 7700 miles AVas the distance from Cape Horn to' Honolulu.

On August 6,’ 1903, the ship' was lass than nine hundred miles from Valparaiso, less than eight hundred miles from Valvidia, hath on the coast of Ohili; while on August 19th the ship was Avitliin 2028 miles of Tahiti and 2426 miles from T'ai-o-hae, in tire ’Marquesas. At all of these ports, it is well known, if not actually in evidence, that medical and surgical aid could have been obtained.

A seaman Avbo is injured in the service of the: ship is entitled to medical care and nursing and to a. cure, if possible, at the expense of the ship, 'and all reasonable measures must be taken to that end. Whitney v. Olson, 108 Fed. 292 ; The Troy, 121 Fed. 901; Brown v. Overton, 1 Sprag. 462, Fed. Case 2024; The City of Alexandria, 17 Fed. 390.

This seems to be settled law. The injured seaman is to be cured at the expense of the ship; if the cure is possible; but all necessary steps must be taken to. effect that cure, and these steps must b© the usual and reasonable means employed.

The duty of the captain of a ship is to do. all in his power for the safety of the lives and limbs of his men. He holds their lives and their health while on ship board largely in his keeping; and while the men must obey all lawful commands and do all they can in the lino of their duty to. preserve the ship and its cargo; they necessarily look toi tire captain and Ms officers for all reasonable care in case of sickness and reasonable aid in case of injury. Any man of common intelligence knows that a man not professionally educated in surgery, acting as thei mate of a ship; cannot properly set a limb when broken, and the1 photographs of this man’s leg, taken with the X-ray, show clearly that Ms limb was not properly set, although it was done with the primitive knowledge claimed to be possessed by tbe mate..

Notwithstanding the statements of Dr. Cooper to the contrary, I think a voyage of nearly seventy-seven hundred miles across* the ocean is. a severe test of thei physical endurance of a man suffering with a broken leg crudely set by one admittedly without surgical knowledge.

In the line of the sMp’s duty to the seaman to provide Mm with medical aid, care and nursing, it was the duty of the captain of the ship to have put into tire nearest port to have obtained such aid. While this duty must have been known to the captain of the sMp; as he is an old navigator, yet not the slightest attempt was made, by Mm; as the evidence shows, to. go anywhere to seek such medical .aid, but he simply continued on Ms long voyage to these islands.

The captain seemed to have been peculiarly indifferent in reference to. the whole matter. He never went, to see this man but twice, once immediately after the occurrence of the accident, again the next day, when he told him he could' do nothing for him, but that thei mate would attend to him. The captain 'himself testified that after ordering the mate to attend to. libellant, he only saw him, with the exception of these two instances cited, through tliei skylight of the forecastle where the man lay. In, fact, he seemed to avoid coming! ini contact with him. And even after the vessel arrived in Honolulu, Captain Graham went “about the ship’s business,” as he testified, for nearly three clays without having the libellant sent to a hospital, where he could have received treatment. Libellant should have been sent to the liospit-al a,t -once upon the arrival of the vessel and he should have been paid the wages then due him; and not have been sent alono finally to -the U.- S. Marine Division- of the Queen's Hospital without any money, with hut a slight knowledge- of the English language', and unable to walk.

Where a seaman in the performance of his duty, and without fault on his, part, is injured in the service of the ship, and there, is no one- -on board competent to, treat the injury, it is the positive duty of the master of the ship to take him at once- to the-nearest port where proper medical treatment can: be obtained, and: the failure of the master to do soi is negligence for which the ship 'and its owners are liable. The Iroquois, 113 Fed. Rep. 964; The Iroquois, 118 Fed. Rep. 1003; Brown v. Overton, 1 Spraig. 462, Fed. Case No. 2024.

And this, too, without reference to any loss of time or risk to the cargo orto, the vessel. The Iroquois, 113 Fed. Rep. 964.

As was saiel by Judge Dei Haven in the last above mentioned, case—

“I canno-t agree to the proposition that the sacrifice of time- and risk to cargo, are matters which 'can properly be permitted- to-•outweigh the duty of procuring: surgical aid for a. seaman disabled in the sendee of the, vessel wlie-n such assistance is necessary and cannot be obtained otherwise than by putting- into-p-ort. The obligation of the ship- is discharged only when the-master has used reasonable care in providing for the comfort and cure of the seaman * * * B-u,t it would seem clear that if -one-of the crew ware so, ill or severely injured that anyone- of ordinary judgment seeing him would know that his life or limb was in serious danger and that he ought to have medical or surgical aid at the earliest possible moment, then it would be- the imperative duty of the master to take the necessary steps to procure such aid if within his power.”

In this case; there is no doubt but what it was within the power of the master of the ship to have procured this aid for libellant within two days after the injury occurred. According to the testimony of Captain Graham, the ship with favorable winds and all sails set could make twohumdred and eighty-eight miles a day. On the day the accident occurred, the ship was some four hundred and eighty-four miles from the Falkland Islands, where at Port Stanley there could have been obtained the aid of competent surgical men. The winds and currents were favorable to take the ship there. It appears! from the testimony of the first officer, Helbron, who made the log and had change, of it, that said log showed the position of the ship at that time to have been 58 degrees', 29 minutes south latitude, 65 degrees, 30 minutes west longitude, with the wind blowing northwest to west-northwest. Tliei Falkland Islands were then east and north of the position of the Ship. It is well known to navigators, and it appeared in evidence, that there is a sea current running eastward and northward from Gape Horn. The first officer, Helbron, testified that, at that time the wind was west, the current setting north and east, and that in his opinion “they could have gone to the Falkland Islands if they wanted to.”

The evidence is clear that at the time of the accident and after, strong westerly winds were blowing’ and continued, while the ship was see,-sawing back and forth, beating to the westward. The winds and currents being so heavy, pushed the vessel backward in the direction of the Falkland Islands, to, the eastward.

In hew of these, facts, it is reasonable to suppose that if the captain had had the well being of the libellant in. view, and fully understood his duty in the premises, ho would have changed his course and sailed direct far Port Stanley, which he could have reached in lees than two days, if Ms testimony is correct that, with favorable winds, ho could make twoi hundred and eighty ■eight miles a day.

The reasons given, by Oaptain Graham for not putting back to Port Stanley were that it was a dangerous harbor; that liis crew were disabled and that he could noit have made that port without great risk. In view of the fact that there is not a particle of evidence that any of the men injured or hurt on tire fifteenth of July were at a.11 seriously hurt with the exception of libellant and one man, Shulz, who stated that he was laid up for nine days, and in view of the further fact that he. had then seventeen mear remaining, his full crew of able-bodied seamen being nineteen, 'if I recollect rightly, the latter excuse does not seiem sound; and especially from the fact that if the siripis course had been directed to Port Stanley, the winds and currents being shown- to be favorable, it would have been easier to have made that pert with a disabled crew than to have gone on fighting against the winds and currents with such a crew, (conceding that the vessel was short-handed for thirteen days), the length of time the rough wea,ther continued, according to tire captain’s testimony.

As to the evidence of tire captain and some of his witnesses, who were masters of vessels like himself, that tire port of Stanley was a dangerous onei to make, this seems directly contradictory of ‘the history of that. port. It is well known that for many years ships have put in there for supplies, and that now there are in the town1 of Port Stanley repair shops, where, in the language of a well known authority, the Encyclopaedia Brittaniea ("Werner’s Edition, published in 1900), “ships can he repaired and provided in every way, much better and more safely than at any of the South American ports, — a, matter of much importance, seeing that a greater amount of injury is done annually to shipping passing near Cape Horn by severe weather, than in. any other locality in the world. The average number of vessels entering Stanley Harbor in tire year is about fifty, with an aggregate tonnage of 20,000; of tbis number a fourth arrive in distress and are repaired at. Stanley.”

The evidence of the captain further disclosed that he could have reached Valparaiso within twenty-five days after the first accident occurred, and on August 6th could have sailed there in nine days. While there is some evidence showing that up- to within thirty-seven hundred miles of Honolulu, he could more readily have reached tire ports of Papeete, on the Island of Tahiti, or Tai-o-hae,, in tire Marquesa», where surgical aid could have been obtained. Such a possibility never seemed to have entered into the calculations of the captain, as he made no effort to make any port but his port of destination. And while it is said libellant did not ask to be taken to. the nearest port for aid, yet that did not relieve the captain of his duty in the matter. The farmer may have been ignorant of bis rights arid so failed to ask to have them enforced.

I am of opinion that the captain was negligent in not taking the course the law required of him, namely, to have put into the nearest port, and the ship and owners thereof are liable for such negligence.

"While tire bones of this man’s leg have knit, yet it is in evidence that the fractured bones overlap an inch and a quarter, which causes a consequent shortening and deformity of the leg. He is unable to walk without the aid of a cane or crutches; while from the testimony of the medical witnesses it will be, at least a year from ilia time of the accident before lie is able to have a natural muscular use of the leg. and resume: bis vocation as a seaman.

If this man had had proper medical care: ivithin a reasonable: time after the injury he might possibly still have a leg which, while not as perfect as the uninjured one, yet the deformity would not be apparent and he would have been saved the pain and suffering incident to the two month» during which he was without medical assistance, and during which time he again injured the leg by falling, entailing more pain and suffering.

Libellant shipped aboard this vessel on the first day of May, 1903, and the vessel reached this port on the fifteenth of September, 1903. He was to receive $18 a month as wages. None of this wage has been paid him so: far as the evidence shows, and he is therefore entitled to the sum of $81 wages for four months and a half, as while he was incapacitated from work during a portion of that time, such incapacity arose from injuries received while in the service of the, ship,. Ilesty Shipping and Admiralty, Sec. 155, and cases Hiere cited. I cannot, however, award him that sum in this action as no demand is made for the same in the libel.

Libellant is entitled to damages for the pain and suffering and the injury he: received by reason of the failure of the captain to seek a port where medical aid and attendance could have been obtained as the law requires, and which he could have obtained by going into the nearest port, which in this instance was either Port Stanley, in the Falkland Islands, or failing in that, then Valparaiso or Valdivia on the coast of Chili. I will award the libellant in full for all such damage®, excepting the wage which should have been paid him upon the termination of the voyage, the sum of eighteen hundred ($1800) dollars, together with costs ■of suit.

Let judgment be entered accordingly.

See Ante, P. 420.