THE OSCEOLA. (See S. C. Reporter's ed. 158-177.) at her dock. At this time the vessel was Admiralty-liability of ship for seaman's including the appellee, Patrick Shea, who injuries. 1. A vessel is not liable in rem to one of the crew, under the general principles of admiralty, for damages for personal injuries sus tained by him through the improvident and negligent order of the master in directing a gangway for the discharge of cargo to be hoisted before the arrival of the vessel at her dock and during a heavy wind. 2. Injuries sustained by a member of the crew on board a ship in attempting to hoist a gangway in a heavy wind are not done "by such ship." within the meaning of Wis. Rev. Stat. 1898, § 3348, imposing liability on every ship "for all damages arising from injuries done to persons or property by such ship," as such statute was intended to cover only cases of damage done by the ship herself, as the offending thing, to persons or property outside the ship. [No. 98.] was one of the crew, proceeded to execute Argued December 2, 1902. Decided March and running against the wind.' The owners 2, 1903. A CERTIFICATE from the United O`States Circuit Court of Appeals for the Seventh Circuit presenting questions as to the liability of a vessel in rem to a member of the crew for injuries sustained through the negligence of the master. Answered in the negative. Statement by Mr. Justice Brown: This was a libel in rem filed in the district court for the eastern district of Wisconsin, in admiralty, against the propeller Osceola, to recover damages for a personal injury sustained by one Patrick Shea, a seaman on board the vessel, through the negligence of the master. The case resulted in a decree for the libellant, from which an appeal was taken by the owners to the circuit court of appeals, which certified to this court certain questions arising upon the following statement of facts: "The owners had supplied the vessel with a movable derrick for the purpose of raising the gangways of the vessel when in port, in order to discharge cargo. The appliance was in every respect fit and suitable for the purpose for which it was intended and furnished to be used, and at the time of the injury was in good repair and condition. The gangways which were to be raised by the derrick were each about 10 feet long lengthwise of the ship, about 7 feet high, and weighed about 1,050 pounds. In the month of December, 1896, the vessel was on a voyage bound for the port of Milwaukee, and when within 3 miles of that port, and while in the open lake, the master of the vessel ordered the forward port gangway to be hoisted by means of the derrick, in order that the vessel might be ready to discharge cargo immediately upon arrival were not present upon the vessel, nor was are liable for every improvident or negli- The questions of law upon which that court desired the advice and instruction of the Supreme Court are "First. Whether the vessel is responsible for injuries happening to one of the crew by reason of an improvident and negligent order of the master in respect of the navigation and management of the vessel. "Second. Whether in the navigation and management of a vessel the master of the vessel and the crew are fellow servants. "Third. Whether, as a matter of law, the vessel or its owners are liable to the appellee, Patrick Shea, who was one of the crew of the vessel, for the injury sustained by him by reason of the improvident and negligent order of the master of the vessel in ordering and directing the hoisting of the gangway at the time and under the circumstances declared; that is to say, on the assumption that the order so made was improvident and negligent." Mr. John II. Roemer argued the cause and filed a brief for appellees: If a state statute gives a right of action touching a subject of maritime nature, admiralty can administer the law by a proceeding in rem if the statute grants a lien, or in personam, no lien being granted. The Corsair, 145 U. S. 335, sub nom. Barton v. Brown, 36 L. ed. 727, 12 Sup. Ct. Rep. 949; Bigelow v. Nickerson, 30 L. R. A. 336, 17 C. C. A. 1, 34 U. S. App. 261, 70 Fed. 113. If the Wisconsin statute merely applies 189 U. S. to causes in personam already maintainable | such cases is certainly supported by the betunder the statute, or the common or the ter reasoning. maritime law, it is submitted that it is effective to create liens in all cases within | its scope, and that such liens may be enforced by proceeding in rem in admiralty. Mendell v. The Martin White, Hoff. Op. 450, Fed. Cas. No. 9,419; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 340, 13 Sup. Ct. Rep. 498; The Oregon, 158 U. S. 186, 39 L. ed. 943, 15 Sup. Ct. Rep. 804; The J. F. Warner, 22 Fed. 342. The subjects of admiralty jurisdiction include all affairs relating to mariners, whether ship officers, or common mariners; their rights and privileges respectively; their office and duty; their wages; their offenses, whether by wilfulness, casualty, ignorance, negligence, or insufficiency, with their punishments. Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas. No. 2,575. The rule of the English courts that, unless the owner is liable at common law, the vessel cannot be held in admiralty, has been rejected in this country. Homer Ramsdell Transp. Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 45 L. ed. 1155, 21 Sup. Ct. Rep. 831. Even in cases of marine torts, independent of prize, courts of admiralty are in the habit of giving or withholding damages upon enlarged principles of justice and equity, and have not circumscribed themselves within the positive boundaries of mere municipal law. They have exercised a conscientious discretion on the subject. The Marianna Flora, 11 Wheat. 54, 6 L. ed. 405; The Palmyra, 12 Wheat. 1, 6 L. ed. 531; The Explorer, 20 Fed. 135; The Wanderer, 20 Fed. 140; The Max Morris, 24 Fed. 860, 28 Fed. 881, 137 U. S. 1, 34 L. ed. 586, 11 Sup. Ct. Rep. 29. If it should be determined that the proceeding should have been commenced in personam, and not in rem, the question cannot be raised at this time. Betts, Admiralty Practice, 99; The Zenobia, Abb. Adm. 48, Fed. Cas. No. 18,208; Roberts v. The Huntsville, 3 Woods, 386, Fed. Cas. No. 11, 904; The Union, 4 Blatchf. 90, Fed. Cas. No. 14,346; The White Squall, 4 Blatchf. 103, Fed. Cas. No. 17,570; The Monte A. 12 Fed. 331; The Willamette, 31 L. R. A. 715, 18 C. C. A. 366, 44 U. S. App. 26, 70 Fed. 874; Leathers v. Blessing, 105 U. S. 626, 26 L. ed. 1192; Chamberlain v. Ward, 21 How. 554, 16 L. ed. 211; The Charles Morgan, 115 U. S. 69, 29 L. ed. 316, 5 Sup. Ct. Rep. 1172; 2 Brown, Civil & Adm. Law, p. 400; The Warren, 2 Ben. 498, Fed. Cas. No. 17,192; The Bilbao, Lush. 149. Peterson v. The Chandos, 4 Fed. 645; The Clatsop Chief, 7 Sawy. 274, 8 Fed. 163, 767; The Titan, 23 Blatchf. 177, 23 Fed. 413; The A. Heaton, 43 Fed. 592; The Julia Fowler, 49 Fed. 277; The Frank & Willie, 45 Fed. 494; McCullough v. New York, N. H. & H. R. Co. 9 C. C. A. 521, 20 U. S. App. 570, 61 Fed. 364. To the same effect see also Keating v. Pacific Steam Whaling Co. 21 Wash. 415, 58 Pac. 224. Mr. Charles H. Van Alstine argued the cause and filed a brief for appellants: A proceeding in rem in admiralty is a proceeding to give effect to a maritime lien; and such a lien must always exist, to form the basis of such a proceeding. Beane v. The Mayurka, 2 Čurt. C. C. 72, Fed. Cas. No. 1,175; The Rock Island Bridge, 6 Wall. 213, 215, sub nom. Galena, D. D. & M. Packet Co. v. Rock Island R. Bridge, 18 L. ed. 753, 754; The Corsair, 145 U. S. 335, 347, sub nom. Barton v. Brown, 36 L. ed. 727, 731, 12 Sup. Ct. Rep. 949; Vandewater v. Mills, 19 How. 82, 89, 15 Ľ. ed. 554, 556; The Glide, 167 U. S. 606, 612, 42 L. ed. 296, 298, 17 Sup. Ct. Rep. 930. The question as to the true limits of maritime law and admiralty jurisdiction is undoubtedly exclusively a judicial question. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends upon what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it. The Lottawanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654. The ancient maritime codes are insufficient to give a seaman a lien upon the vessel for damages based on mental and physical pain and loss of earning capacity. Appendix to 30 Fed. Cas. pp. 1174, 1191, 1200, 1209; The City of Alexandria, 17 Fed. 390. The court cannot make the law; it can only declare it. If, within its proper scope, any change is desired in its rules other than those of procedure, it must be made by the legislative department. The Lottawanna, 21 Wall. 576, 577, sub nom. Rodd v. Heartt, 22 L. ed. 662, 663. As the appellee resorted to a libel in rem, the court is bound by the maritime law. Homer Ramsdell Transp. Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 45 L. ed. 1155, 21 Sup. Ct. Rep. 831. By the maritime law of this country the liability of the vessel owner, in cases like the present, is limited to medical and surgi cal attendance, and wages to the end of the voyage. The reported cases show that there is a conflict of opinion as to whether or not the vessel and its owners are liable in admiralty The City of Alexandria, 17 Fed. 390. for the negligence of the master in the manCases holding the owner liable in personagement and navigation of the ship, proxi-am are rested on the common law. mately causing injury to an ordinary sea- The Titan and The Hills, 23 Blatchf. 177, man. The line of cases holding that the 23 Fed. 413; The A. Heaton, 43 Fed. 592; vessel and its owners are responsible in The Sachem, 42 Fed. 66; McCullough v. New York, N. H. & H. R. Co. 9 C. C. A. 521, | in The Lottawanna, 21 Wall. 558, sub nom. The Federal courts enforce liens created by state statutes, upon vessels, when such statutes are not in conflict with the laws and usages of the United States, because, and only because, the lien touches a subject within the constitutional jurisdiction of the Federal courts; and it necessarily follows that they cannot go beyond the state or municipal law creating the cause of action and lien. Bigelow v. Nickerson, 30 L. R. A. 336, 17 C. C. A. 1, 34 U. S. App. 261, 70 Fed. 113; The City of Norwalk, 55 Fed. 98, 107, 108, 112; Sherlock v. Alling, 93 U. S. 104, 23 L. ed. 820; The Corsair, 145 U. S. 347, sub nom. Barton v. Brown, 36 L. ed. 731, 12 Sup. Ct. Rep. 949. Under the facts certified, appellee and the master of the vessel were fellow servants; and the owners are not liable under the laws of the state. Hedley v. Pinkney & Sons S. S. Co. [1892] 1 Q. B. 58; Dwyer v. American Exp. Co. 82 Wis. 307, 52 N. W. 304; Stutz v. Armour, 84 Wis. 623, 54 N. W. 1000; Cadden v. American Steel Barge Co. 88 Wis. 409, 60 N. W. 800; Hartford v. Northern P. R. Co. 91 Wis. 374, 64 N. W. 1033; Klochinski v. Shores Lumber Co. 93 Wis. 417, 67 N. W. 934; McMahon v. Ida Min. Co. 95 Wis. 308, 70 N. W. 478; Albrecht v. Chicago & N. W. R. Co. 108 Wis. 530, 53 L. R. A. 653, 84 N. W. 882; Wiskie v. Montello Granite Co. 111 Wis. 443, 87 N. W. 461; Thompson v. Hermann, 47 Wis. 602, 32 Am. Rep. 784, 3 N. W. 579; Mathews v. Case, 61 Wis. 491, 50 Am. Rep. 151, 21 N. W. 513. Mr. Justice Brown delivered the opinion of the court: In the view we take of this case, we find it necessary to express an opinion only upon the first and third questions, which are, in substance, whether the vessel was liable in rem to one of the crew by reason of the improvident and negligent order of the master in directing the hoisting of the gangway for the discharge of cargo, before the arrival of the vessel at her dock, and during a heavy wind. As this is a libel in rem, it is unnecessary to determine whether the owners would be liable to an action in personam, either in admiralty or at common law, although cases upon this subject are not wholly irrelevant. Rodd v. Heartt, 22 L. ed. 654, "having regard to our own legal history, Constitution, legislation, usages, and adjudications." By article 6 of the Rules of Oleron, sailors injured by their own misconduct could only be cured at their own expense, and might be discharged; "but if, by the mas ter's order and commands, any of the ship's company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in that case they shall be cured and provided for at the cost and charges of the said ship." By article 18 of the Laws of Wisbury, "a mariner being ashore in the master's or the ship's service, if he should happen to be wounded, he shall be maintained and cured at the charge of the ship," with a further provision that, if he be injured by his own recklessness, he may be discharged and obliged to refund what he has received. Practically the same provision is found in article 39 of the Laws of the Hanse Towns; in the Marine Ordinances of Louis XIV. book III. title 4, article 11; and in a Treatise upon the Sea Laws, published in 2 Pet. Adm. Dec. In neither of these ancient Codes does there appear to accidentally or by negligence, nor does it be any distinction between injuries received appear that the seaman is to be indemnified beyond his wages and the expenses of his the dark as to whether the seaman in such maintenance and cure. We are also left in is remitted to an action against the owners. a case has recourse to the ship herself, or By the modern French Commercial Code (art. 262), “seamen are to be paid their wages, and receive medical treatment at the expense of the ship, if they fall sick during a voyage, or be injured in the service of the vessel." Commenting upon this article, Goirand says in his commentaries upon the French Code, that "when a sailor falls ill before the sailing of the vessel he has no right to his wages; if he becomes ill during the voyage, and from no fault of his own, he is paid his wages, and tended at the expense of the ship," and if he is left on shore, the ship is also liable for the expense of his return home; and *under article 263[170] the same treatment is accorded to sailors wounded or injured in the service of the ship. The expenses of treatment and dressing are chargeable to the ship alone, or to the ship and cargo, according to whether the wounds or injuries were received in the service of the ship alone, or that of the ship and cargo. If the rulings of the district court were correct, that the vessel was liable in rem Similar provisions are found in the Italfor these injuries, such liability must be ian Code, article 363; the Belgian, article founded either upon the general admiralty 262; the Dutch, articles 423 and 424; the law or upon a local statute of the state Brazilian, article 560; the Chilian, article within which the accident occurred. As the 944; the Argentine, article 1174; the Portuadmiralty law upon the subject must be guese, article 1469; the Spanish, articles gathered from the accepted practice of 18 and 719; the German, articles 548 and courts of admiralty, both at home and 549. In some of these Codes, notably the abroad, we are bound in answering this Portuguese, Argentine, and Dutch, these ex[169] question to examine the sources of this law penses are made a charge upon the ship and and its administration in the courts of civ-her cargo and freight, and considered as a ilized countries, and to apply it, so far as it is consonant with our own usages and principles, or, as Mr. Justice Bradley observed subject of general average. By the Argentine Code, article 1174, the sailor is also entitled to an indemnity beyond his wages and cure in case of mutilation; and by the German Code he appears to be entitled to an indemnity in all cases for injuries incurred in defense of his ship; and by the Dutch Code, the sailor, if disabled, is entitled to such damages as the judge shall deem equitable. In all of them there is a provision against liability in case of injuries received by the sailor's wilful misconduct. Except as above indicated, in a few countries, the expense and maintenance and cure do not seem to constitute a privilege or lien upon a ship, since by the French Code, article 191, classifying privileged debts against vessels, no mention is made of a lien for personal injury. The other Continental and South American Codes do not differ materially from the French in this particular. Probably, however, the expenses of maintenance and cure would be regarded as a mere incident to the wages, for which there is undoubtedly a privilege. By the English merchants' shipping act (17 & 18 Vict. chap. 104, § 228, subd. 1), "if the master or any seaman or apprentice receives any hurt or injury in the service of the ship to which he belongs, the expense of providing the necessary surgical and medical advice, with attendance and medicines, and of his subsistence until he is cured, or dies, or is brought back to some port in the United Kingdom, if shipped in [171]the United Kingdom, or, if shipped in some British possession, to some port in such possession, and of his conveyance to such port, and the expense (if any) of his burial, shall be defrayed by the owner of such ship, with out any deduction on that account from the wages of such master, seaman, or apprentice." These provisions of the British law seem to be practically identical with the Contirental Codes. In the English courts the owner is now held to be liable for injuries received by the unseaworthiness of the vessel, though not by the negligence of the master, who is treated as a fellow servant of the owner. Responsibility for injuries received through the unseaworthiness of the ship is imposed upon the owner by the merchants' shipping act of 1876 (39 & 40 Vict. chap. 80, § 5), wherein, in every contract of service, express or implied, between an owner of a ship and the master or any seaman thereof, there is an obligation implied that all reasonable means shall be used to in sure the seaworthiness of the ship before and during the voyage. Hedley v. Pinkney & Sons' S. S. Co. [1894] A. C. 222, an action at common law. Beyond this, however, we find nothing in the English law to indicate that a ship or its owners are liable to an indemnity for injuries received by negligence or otherwise in the service of the ship. None such is given in the admiralty court jurisdiction act of 1861, although it action in admiralty will lie against the master in personam for an assault committed upon a passenger or seaThe Agincourt, 1 Hagg. Adm. 271; The Lowther Castle, 1 Hagg. Adm. 384. This feature of the law we have ourselves seems an man. adopted in general admiralty rule 16, declaring that "in all suits for assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only." In England the master and crew are also treated as fellow servants, and hence it would follow that no action would lie by a member of the crew against either the owners or the ship for injuries received through the negligence of the master. Hedley v. Pinkney & Sons' S. S. Co. [1894] A. Č. 222. It is otherwise, however, in Ireland (Ramsay v. Quinn, Ir. Rep. 8, C. L. 322), and in Scot land, where the master is regarded as a[172] vice principal. Leddy v. Gibson, 11 Ct. Sess. Cas. 3d series, 304. The statutes of the United States contain no provision upon the subject of the liability of the ship or her owners for damages occasioned by the negligence of the captain to a member of the crew; but in all but a few of the more recent cases the analogies of the English and Continental Codes have been followed, and the recovery limited to the wages and expenses of maintenance and cure. The earliest case upon the subject is that of Harden v. Gordon, 2 Mason, 541, Fed. Cas. No. 6,047, in which Mr. Justice Story held that a claim for the expenses of cure in case of sickness constituted in contemplation of law a part of the contract for wages, over which the admiralty had a rightful jurisdiction. The action was in personam against the master and owner for wages and other expenses occasioned by the sickness of the plaintiff in a foreign port in the course of the voyage, all of which were allowed. The question of indemnity did not arise in this case, but the court held that upon the authority of the Continental Codes, and by its intrinsic equity, there was no doubt of the seaman's right to the expenses of his sickness. This case was followed in The George, 1 Sumn. 151, Fed. Cas. No. 5,329, and in Reed v. Canfield, 1 Sumn. 195, Fed. Cas. No. 11,641. Though the last case did not involve the question of indemnity, Mr. Justice Story, in delivering the opinion, remarked that "the sickness or other injury may occasion a temporary or permanent disability, but that is not a ground for indemnity from the owners. They are liable only for expenses necessarily incurred for the cure; and when the cure is completed, at least so far as the ordinary medical means extend, the owners are freed from all further liability. They are not in any just sense liable for consequential damages. The question, then, in all such cases is, What expenses have been virtually incurred for the cure?" The question of indemnity. however, was fully considered by Judge Brown, of the southern district of New York, in The City of Alexandria, 17 Fed. 390, which was an action in rem for personal injuries received by the cook in falling through the fore hatch into the hold; and it was held that upon common-law principles the claim could not be sustained, as the negligence[173] through which the accident occurred was that of fellow servants engaged in a com mon employment. The court, however, | appliances, so that the case was one really went on to consider whether the negligence, of unseaworthiness. In the case of The Ă. upon the recognized principles of maritime Heaton, 43 Fed. 592, a seaman was allowed law, entitled the libellant to compensation to recover consequential damages for neglifrom the ship or her owners in cases not gence of the owners in not providing suitarising from unseaworthiness. After going able appliances, although in the opinion, over the Continental Codes, the cases above which was delivered by Mr. Justice Gray, he cited, and a few others, Judge Brown came seems to assume the right of the seaman to to the conclusion that he could find "no au- recover against the masters or owners for thority in the ancient or modern Codes, in injuries caused by their wilful or negligent the recognized text-books or the decisions acts. The case, however, was one of injuon maritime law, for the allowance of con- ries arising from unseaworthiness, although sequential damages resulting from wounds the learned judge in his discussion does not or hurts received on board ship, whether draw a distinction between the cases arising arising from ordinary negligence of the sea- from the unseaworthiness of the ship and man himself or of others of the ship's com- the negligent act of the master. It is interpany. Considering the frequency of such esting to note that in The Julia Fowler, 49 accidents and the lasting injuries arising Fed. 277, a seaman employed in scraping from them in so many cases, the absence of the main mast on a triangle surrounding any authority holding the vessel liable be- the mast was allowed to recover for the yond what has been stated is evidence of the breaking of the rope which held the trianstrongest character that no further liabil- gle, and precipitated libellant to the deck; ity under the maritime law exists." while in a case almost precisely similar (Kalleck v. Deering, 161 Mass. 469, 37 N. E. 450), the owners were held not to be liable for an injury caused by the negligence of the mate in constructing the triangle and ordering the seaman to use it. In The Frank & Willie, 45 Fed. 494, the ship was held liable to a sailor who was injured by the negligence of the mate in not providing safe means for discharging the cargo. the opinion was delivered by Judge Brown, who was also the author of the opinion in The City of Alexandria, 17 Fed. 390, the case can be reconciled with that upon the ground that the "question was really one of [175] unseaworthiness, and not of negligence. The general rule that a seaman receiving injury in the performance of his duty is entitled to be treated and cured at the expense of the ship was enforced in The Atlantic, Abb. Adm. 451, Fed. Cas. No. 620, though it was said in this case, and in Nevitt v. Clark Olcott, 316, Fed. Cas. No. 10,138, that the privilege of being cured continues no longer than the right to wages under the contract in the particular case. In The Ben Flint, 1 Abb. (U. S.) 126, 1 Biss. 562, Fed. Cas. No. 1,229, the claim to be cured at the expense of the ship is held to be applicable to seamen employed on the lakes and navigable rivers within the United States. See also Brown v. Overton, 1 Sprague, 462, Fed. Cas. No. 2,024; Croucher v. Oakman, 3 Allen, 185; Brown v. The Bradish Johnson, 1 Woods, 301, Fed. Cas. No. 1,992. As Upon a full review, however, of English and American authorities upon these questions, we think the law may be considered as settled upon the following propositions: 2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. Scarff v. Metcalf, 107 N. Y. 211, 13 N. È. 796. In The Edith Godden, 23 Fed. 43, the ves- 1. That the vessel and her owners are liasel was held liable in rem for personal in- ble, in case a seaman falls sick, or is woundjuries received from the neglect of the owned, in the service of the ship, to the extent er to furnish appliances adequate to the of his maintenance and cure, and to his place and occasion where used; in other wages, at least so long as the voyage is conwords, for unseaworthiness. This is read- tinued. ily distinguishable from the previous case of The City of Alexandria, 17 Fed. 390, and is in line with English and American authorities holding owners to be responsible to the seamen for the unseaworthiness of [174]the ship and her appliances. *In The Titan, 23 Blatchf. 177, 23 Fed. 413, the ship was held liable to a deck hand who was injured by a collision occasioned partly by fault of his own vessel. The question of general liability was not discussed but assumed. In the case of The Noddleburn, 12 Sawy. 129, 28 Fed. 855, the question of jurisdiction was not pressed by counsel, but merely stated and submitted. The case is put upon the ground that, as the accident was occasioned by the master knowingly allowing a rope to remain in an insecure condition, the vessel was consequently unseaworthy. In Olson v. Flavel, 13 Sawy. 232, 34 Fed. 477, libellant was allowed to recover damages for personal injury suffered by him while employed as mate; but if there were any negligence on the part of the respondent, it appears to have been not providing proper 3. That all the members of the crew, except, perhaps, the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of his main tenance and cure. 4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident. It will be observed in these cases that a departure has been made from the Continental Codes in allowing an indemnity beyond the expense of maintenance and cure |