The law of the sea

by George L. Canfield; J. Y. Brinton; George W. Dalzell

6. Personal Injuries.—

Where a sailor is injured in the service of the ship he is entitled to care and cure at the expense of the ship, irrespective of any question of the negligence of any member of the ship's company and irrespective of whether the seaman was guilty of contributory negligence, but ordinarily, he can not recover damages unless fault can be brought home to the owner. He will also be entitled to his wages for the trip or voyage on which the injury occurred, unless discharged by voluntary consent under § 4581 Rev. St. before the voyage ends.

In very recent years repeated assaults have been made upon the long established rule which prevented seamen from recovering on account of injury or death in line of duty. In Southern Pacific Co. v. Jensen, 244 U. S. 205, an employee engaged in maritime work attempted to recover damages for a maritime injury pursuant to the Workmen's Compensation law of New York. The Supreme Court held, that "Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country," and that in so far as the Workmen's Compensation law of a state sought to confer upon seamen rights inconsistent with the general maritime law, the state Workmen's Compensation law was unconstitutional. Thereupon Congress by the act of October 6, 1917, undertook to confer upon suitors in admiralty "the rights and remedies under the Workmen's Compensation Law of any state." Thereafter in Knickerbocker Ice Co. v. Stewart, decided May 17, 1920, the Supreme Court of the United States held that the act of Congress of 1917 was destructive of the uniformity of the principles of admiralty law, which the Constitution sought to preserve, and was therefore beyond the power of Congress to enact. Therefore, up to May 17, 1920, the date of the decision of Knickerbocker Ice Co. v. Stewart, the old rule of admiralty whereby sailors could not ordinarily recover damages for injuries in the course of their employment had successfully withstood all attacks by state legislatures and by Congress and remained the law. However, three weeks after the decision in Knickerbocker Ice Co. v. Stewart, Congress, by the Merchant Marine Act of June 5, 1920 (see Appendix), enacted the following:

That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply; and in case of the death of any seaman as a result of any such personal injury the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such action all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable. Jurisdiction in such action shall be under the court of the district in which the defendant employer resides or in which his principal office is located.

This provision, which seeks to confer upon seamen the rights enjoyed by railway employees under the Federal Compensation Act, has not yet been construed by the courts.

The rights of railway employees thus conferred upon seamen are those given by acts of Congress approved April 22, 1908, and April 5, 1910. These acts gave to the employees of railroads engaged in interstate and foreign commerce, a right of action against the employing carrier in case of injury or death of the employee, notwithstanding that the accident may have been caused by acts of a fellow servant or may have been due to one of the risks naturally incident to the employment, and notwithstanding that the plaintiff may have been guilty of contributory negligence, although in the latter case the damages are to be diminished in proportion to the amount of the employee's negligence. Suit may be brought in the state or federal courts, which are given concurrent jurisdiction in such cases.

It should be observed that under neither the Merchant Marine Act nor the Railway Employers' Liability Acts is the jurisdiction to be exercised by the court sitting in admiralty. The jurisdiction invoked is that of the courts of common law.

Where, however, there is negligence on the part of the shipowner in providing a seaworthy ship, or on the part of the officer in caring for the injured man, the admiralty will award damages; if there has been contributory negligence, it will not prevent recovery but the damages will be apportioned or divided (The Max Morris, 137 U. S. 1).

The principle on which vessels are held liable for injuries to seamen due to unseaworthiness is simply an application of the rule of law that every master is bound to provide his servant with a safe place to work; that is to say, a place as safe as any prudent man would provide for the performance of work of similar character, and that failure to provide such a safe place is actionable negligence. In the Joseph B. Thomas, 86 Fed. 658, it was held that where an employee on a vessel placed an empty keg on a pile of hatchway covers in such a position that an accidental jar caused it to fall in the hatch and injure a stevedore, the master and the owners were liable and the ship was held for violation of the duty to provide a safe place to work.