Smith v. The Ship "Challenger"

Opinion by

Hoyt, Associate Justice.

The amended libel in this cause alleges' in substance that in the month of May, 1882, the libellants shipped on the “ Challenger,” at the port of Philadelphia, for a voyage from that place to-New Tacoma, Washington Territory : the libellant Smith shipping in the capacity of third mate, the libellant Watson as carpenter, the libellant Schaeffer as deck boy, and the others as seamen, at the wages specified in the libel. That they signed shipping articles. That the mates of said ship were men of violent temper, and cruel and inhuman dispositions, which fact was at all times known to the master, but not to the libellants until after the commencement of the voyage. That during the whole course of the voyage said libellants, without cause, were wrongfully subjected to beatings, imprisonments, cruelties and abuse by the mates of said ship; and that the master failed, neglected and refussd to use due diligence to protect the libellants from, such acts ; and that each of said libellants had been damaged thereby in a certain sum set out in said libel. Then follows ait allegation that wages are due said libellants as follows: Warrow, $37.50, dander, $34, Anderson, $20.25, Herbert, $50, Ross, $29.26, Danielson, $22.70, Francisco, $33.70, Hanson, $21.20, Dahlgren, $28.05, Johnson, $29.20, Andreo, $25.20, Matson, $162.66 ; and a prayer for those various amounts, in addition to-the amount of damages above mentioned.

The claimants excepted in detail to all the allegations in the-amended libel, except those referring to the shipment of the libellants, and the amount of wages due them. These exceptions,, twenty in number, were all overruled by the Court.

Issue was then made upon the allegations of said libel, and the cause heard upon proofs duly, taken; and a decree entered against the said ship and her claimants, in favor of each of said libellants (excepting certain of them, who had, pending the action, compromised their claims), both for damages on account of said ill-treatment and for the wages found due, with costs. And from this decree claimants have prosecuted this appeal.

The question of most importance in the cause, and the one to which counsel have directed most of their argument, is as to the effect of Admiralty Rule Sixteen; it being contended by appellants that the damages claimed for in this libel, by reason of said rule, could not be enforced against the ship, even although her owners might be liable in a suit in personam; while the appellees insist that though said rule bars an action against the ship for an assault and battery, as such, yet it has no application to claims of the kind set oqt in their libel, which are for a breach of the contract, for protection and fair treatment, implied in the contract for service, by reason of certain assaults and beatings, and not an action to recover directly for damages from such assaults and beatings. Said Rule Sixteen reads as follows: “ In all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only.”

It is conceded that the Supreme Court had the power to adopt this rule; it follows that it must be given such a construction as will give force to the words therein used, and meet the object for which it seems to have been adopted.

What, then, was the situation before this rule was promulgated, as to the liability of the ship for damages of this nature ? Was she liable for every act of assault or beating committed on board of her; or was she liable only when such assaults or beatings were made uuder such circumstances as to constitute a violation of the contract or duty of protection and fair treatment ? We think the latter ; as in our opinion the only remedy the injured party on shipboard, as elsewhere, ever had for a single willful assault, as such, was an action in personam against the person who inflicted the injury; and it seems to us that without such rule it could never have been held that either the ship or her owners were liable in any form of action, from the simple fact that one person upon said ship had committed a willful assault upon another; as we think that the only ground upon which one far away from and in no way connected with such assault could be held liable, would be, that he had in some way violated his contract, either express or implied, with such injured party.

To give the construction to said rule contended for by appellees would, in our opinion, entirely nullify it, and leave the matter just where it was before its adoption. Without it the action ■could be in personam only, in all cases where the ship was not liable; and we do not see how either she or her owners could be held thus liable for damages of this nature, on other grounds than that the allowing of the same was in violation of some duty imposed by contract, or in consequence of negligence in the performance of some duty enjoined by law; and it is for just such violations or neglect that appellees claim the right to recover herein.

If, however, said rule is construed as contended for by appellants, it becomes at once of vital force; for it says to the person who has had his contract for protection violated by assaults or beatings, that though he could before have proceeded against the ship, he must now content himself with a suit in personam.

We are not discussing the wisdom or justice of said rule, as these questions-address themselves only to the power that made it.

We suppose that it was thought necessary in the interest of commerce to prevent the frequent attachment of vessels at ports far away from home, for liabilities which could not have been contemplated, and for which, therefore, no preparations could have been made; and that public interest demanded that occasional individual injustice should be suffered, rather than that commerce should be so inconvenienced and obstructed.

It is true that in many cases, as in that at bar, great hardship and injustice may be done, by compelling the injured party to go to the home of the owner to obtain redress, yet in most cases where there has been really serious abuse, the damages recovered will be such as to warrant such a course; and on the whole, the injustice may not be greater than to compel such owner to meet the tying up of his ship at any port, however remote or small, that she may chance to visit, upon every allegation, real or pretended, that by assault or beating the said contract has been broken.

The construction is strengthened by the language of the rule, for had the intention been to provide a remedy for an assault and battery, as such, only the words assault or beating were not the most appropriate; while if the inténtion was to cover all ■cases of actionable personal abuse, as well those that were, as those that were not, violations of such contract, no more apt words could have been found to express such intention.

' Besides, the rules of which this under consideration is one have substantially covered the entire field of maritime jurisdic-. tion,and have pointed out the proper proceeding in all, or nearly all, classes of casesauthorizing certain claims to be enforced in item, certain in personam, and again others by either or both of such remedies ; and if it had not been the intention by this rule to indicate the procedure in all cases of liability growing out of assault and battery, there would have probably been another rule for the class of liabilities not so provided for.

We see nothing to induce us to hold that, having had its attention called to this matter of assault and beatings, the Supreme ■Court would have provided by rule for one class of liabilities arising therefrom, and left another class without any rule for its government.

' The rule, fairly interpreted, is broad enough to cover all cases the gravamen of which is an assault or beating, and we think that such should be its construction.

To construe it otherwise would allow damages growing out of assault or beating in one form of action to be enforced against the ship, while the same elements of damage in another form of action could not be so enforced, and this would overturn a well established principle in admiralty, that substance and not form is the thing to be considered.

But appellees insist that even if this rule is construed as above stated yet it does not have these claims, as the injuries alleged are not those arising from assaults and beatings only, but also include those arising from much other ill-treatment. We think, however, that the principal element of alleged damages is for injuries received by assaults and beatings, and that these claims must be held to be° within said rule. We have discussed this question upon the language of said rule, and the circumstances of its adoption, rather than in the light of authority, as it was concluded upon the argument that but little light can he found in the hooks upon this subject. Such light, however, as is shed by the authorities, both negative and positive, upon this subject, seems to favor the construction given above. A large number of cases have been brought to recover for this class of damages, and have with a single exception been prosecuted in personam ; while in the single case where an attempt was made to hold the ship, the ruling of the Court was that she was not liable. (See The Guiding Star, 1st Federal Reporter, 347.)

It is, of course, true, that the negative authority above mentioned is entitled to hut little weight, for it may have been out of abundant caution only that attorneys have always prosecuted in personam instead of in rem; yet when we consider the manifest, advantages in many cases of the proceeding m rem, we must conclude that the fact that it has never been resorted to shows pretty conclusively that the bar of the country had construed, such rule as a bar to the proceeding in rem.

The damages claimed for could not, then, be recovered in this action, and should have been stricken from the libel.

Appellants do not question the decree of the Court below for wages due. the several libellants, but claim that there should have been no allowance of costs ; the proof showing, as they allege, that they had before suit made a full tender of such wages: hut as the lower Court seemed to think that a sufficient tender had not been shown, we are not disposed to disturb the finding for costs in favor of appellees in the Court below, as it does not sufficiently appear that they were wrongfully allowed.

There must be a decree entered here in favor of libellants for the wages found due, and for costs incurred, in the lower Court, from which must be deducted the costs of this appeal, which are allowed appellants.

Ve concur : S. C. Wingard, Associate Justice.

George Turner, Associate Justice.