Opinion
No. 11943.
March 26, 1929.
Bronson, Jones Bronson and Schwellenbach, Merrick Macfarlane, all of Seattle, Wash., for petitioner.
George F. Vanderveer, of Seattle, Wash., for claimant.
In Admiralty. Petition by the Crosby Fisheries, Inc., owner of the steamship Salmon King, for exemption from or limitation of liability. Decree in accordance with opinion.
See, also, 24 F.2d 555.
The petitioner claims exemption from or limitation of liability, stating that the steamship Salmon King, at the time in issue, was in all respects seaworthy, efficiently officered, manned, and equipped, and furnished in accordance with law; that on June 1, 1926, one F.E. Rhodes, the chief officer of the vessel, at the time in command, was injured without fault of the petitioner, but through gross neglect of the injured party; and that following the injury he commenced an action in the state court, seeking recovery from the petitioner of $77,750 damages and expenses in effecting a cure; that the sum demanded is in excess of the value of the vessel and no freight had been earned; that the petitioner desires to claim benefit of the statutory limitation provisions, and prays judgment accordingly.
The claimant denies that the vessel was seaworthy, and denies that he was injured through any neglect of his own, but through the defective condition of the starboard or midship winch; denies that he contributed in any manner to his injury; alleges the value of the vessel is in excess of $50,000; and files claim in the amount prayed in the state court proceeding, a copy of which appears in the record.
The evidence shows that the petitioner used all due diligence to make the vessel seaworthy, properly officered, manned, and equipped, and was not privy to any act of omission or commission contributing to the injury, and that it is entitled to limitation of liability.
Rhodes, the injured claimant, was employed as mate. He was regularly licensed, and at the particular time was in charge of the vessel as master. The vessel was taking cargo at the port of Seattle on the preceding week through hatch No. 1 under the direction and supervision of the claimant. On Tuesday, the 1st day of June, under the direction of the injured claimant as chief officer, dunnage was removed from hatch No. 2 preparatory to taking on supplies, etc., and the claimant directed that it be put on the far side of the hatch, about four or five feet from the hatch coming; the claimant at the time standing at the after end of the load which pointed fore and aft. The load was swung to the point indicated. The claimant said: "We sung out to them to drop it; to let it go; the usual signal." The claimant and the hatch tender at the time had hold of the dunnage, the claimant pushing, and the hatch tender pulling, it into place, and, instead of dropping it, the load swung over the hatch, knocking the claimant into the hold below, where he received serious injuries.
It is contended by the claimant that one of the winches "stuck," which caused the dunnage to move in that fashion, resulting in the injury. There is no evidence that there was anything mechanically wrong with the winch; there are statements from several witnesses that the winch "stuck." The winchman did not testify. Neither of the parties were able to locate him. It is stated that he left Seattle shortly after the injury.
The strong preponderance of the evidence is that there was nothing mechanically wrong with the winch; that, following the accident, it was used throughout the summer without any mechanical changes or repairs, except such as were incidental to the work. A careful weighing of the evidence and examination of the elaborate briefs filed by the parties confirms this conclusion of fact. I am also convinced from the evidence that the claimant, in pushing the load in an endeavor to place it at the point desired, stepped between the load and the hatch coaming, and that when the load swung it carried with it the claimant, who hung onto a piece of timber for a brief time before falling 30 feet into the hold. All of the circumstances point to the conclusion that the winchman failed to move the winch, or to operate the winch, in harmony with the order given, and that the primary cause of the injury was the improper operation of the winch by the winchman, and the proximate cause was stepping between the load and hatch, and but for which act of claimant the injury would not have occurred.
The claim is made under the Federal Employers' Liability Act ( 45 USCA § 51, p. 92): "Every common carrier * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its * * * appliances, machinery, * * * or other equipment."
The provision of the Liability Act is broad in its scope, and includes officers, etc., and contributory negligence does not bar recovery, but only diminishes the damages in proportion to the amount of negligence attributable. ( 45 USCA § 53). "The policy of the statute is directed to the safety of the men and to treating compensation for injuries to them as properly part of the cost of the business." International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19, 71 L. Ed. 157.
Nor does the negligence of a coemployee resulting in injury preclude recovery, and the common-law fellow-servant doctrine is abrogated, and the negligence of the coemployee is placed on the same basis as negligence of the employer. Chesapeake O. Ry. v. DeAtley, 241 U.S. 310, 36 S. Ct. 564, 60 L. Ed. 1016. The mate, Capt. Rhodes, in charge of the vessel, and the winchman, were, under the act, fellow servants. International Stevedoring Co. v. Haverty, supra; Carstensen v. Hammond Lbr. Co. (C.C.A.) 11 F.2d 142; Hammond Lbr. Co. v. Sandin (C.C.A.) 17 F.2d 760. And the negligence of the winchman in the operation of the winch will not preclude the recovery for the reason that the claimant, as his superior officer, could not control the immediate conduct of the winchman.
The claimant was seriously and permanently injured. He had a life expectancy of 19 years. While not totally disabled, it is idle to consider a monetary consideration for a man who loves life, for the injury sustained, and from which he still suffers, and, no act of the petitioner contributing to the injury, it is difficult to ascertain what justice and right require. While the negligence of the claimant in stepping between the dunnage load being moved and the hatch was not such a reckless disregard of security and right as to imply bad faith, and tantamount to "magna culpa" of the civil law, it was a greater want of care than is implied by "ordinary negligence." All of the circumstances considered, I think $7,500 should be awarded.
Decree may accordingly be presented on notice.