The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-09-03


| cision of the Ninth Circuit Court of
Appeals, San Francisco, in the case of
the ship Erskine NJ. Phelps, her tackle,
etc, and Robert j. Graham, claimant
and intervenor. appellants VS.. julius
A. schumacher, appellee. This deci-
| sion reversed a judgment by the late
| Judge NJ. NJ. Estee, though he did not
| live to know it, in which Schirrma cher
was awarded $500 against the ship be-
cause she was not diverted from her
| course, on voyage from Norfolk, Va,
| to Honolulu, so as to make either Port
| Stanleysor Valparaiso for the purpose
| of obtaining surgical assistance for
| Schumacher. one of the crew, who
| had suffered a fracture of both bones
of the right leg by being struck by a
wave and thrown against the rail, while
the ship was Iaboring heavily in a gale
a little to the southwark and westward
of Cape Horn.
r. w. Breckons and Holmes & Stan
ley were proctors for the appellants.
and Milton Andres of counsel. T. Nc
Giants Stewart and j. ]. Dunno We're
proctors for the appellee.
Judges Gilbert, Ross and Hawley
heard the appeal. The decision. revers-
ing the decree and remanding the cause
TO the U. S. District Court of Hawaii
with instructions to dismiss the libel,
was rendered by Judge Gilbert.
The accident happened on July Is,
1903. Under the directions of Captain
Graham the first mate--who had served
from 1894 to 1897 in rhe U. S. Navy
and received instruction in first aid
to the wounded besides having had
plenty of experience in that line during
go days he had served in the Boer war
set the broken leg, placed it in splints,
bandaged it and suspended it in a
swing. The appellee was confined to
his bunk until August 20, when he was
carried out on the deck Four days
later, while walking on the deck with
the support of a crutch and a cane,
he slipped and fell, again injuring and
probably breaking his leg. 1t was again
bandaged and placed in sling, and the
appellee was confined TO his bunk I'M
til about four days before the vessels
arrival at Honolulu, which was on Sep
TENDER Is, 1909 On the 18th, at his re-
quest, he was taken to a hospital. It
was IAlSiG dSCSl lIldl the OOtlGS VI
the leg, which had been obliquely
fractured, had firmly united but over
Tapped. shortening the leg. The trial
court found that the appellee was per- /
manently injured and incapacitated
from performing hard labor, but that
there was no proof of the failure of the
ship in its duty to him except in the
neglect to provide proper care and
medical attention, which should have
been done by putting into some con- !
venient port for surgical treatment, and !
that the failure of the master so to de- |
viate from his course constituted neg /
ligence for which the ship was liable in |
the sum of $780,
Summing up the case the appellate
court thus describes the predicament of |
Captain Graham:
THE accident occurred in the middle |
of the winter season. Eight others of |
the crew were injured at the same |
time, leaving nine men on duty. OF |
these nine men the captain testified, |
and it is not denied. that two or three
were useless on account of saltwater
boils and ulcers. The same sea that |
caused the accident washed overheard |
the fore and main braces. Some of the |
braces We're cut in twain by the iron
shutters of the ports; some of them
had to be spl$ced, and others replaced. |
Under these circumstances the captain /,
was confronted with the question |
whether his duty to the injured sea-
man required him 70 take the appellee I
back to Port Stanley in the Falkland |
Islands for surgical treatment"
The lower court held that such was |
his duty. In giving his reasons for not !
putting back. Capt. Graham said he ,
considered it would have been sheer !
madness to attempt to enter the harbor !
of Port Stanley with the ship and crew i
in the condition in which they were. |
The ship was 4S4 miles from that port
in direct line and $40 miles as the ship
would sail. With all sails set and I'M
der favorable conditions the ship could
make 2SS miles a day Captain Graham
testified that he had sailed thirty-fve
times around the Horn. The appellate
courts summary proceeds in part as
follows:
He admitted that he could very
easily have gone back to the region
of the Falkland Islands, but he testi-
fed that it was a stormy region, SUBJ
ject to continual sleet. hail, and snow
storms at that time of the year, which
was the middle of the winter season;
that there was very little daylight, dark
coming on at o'clock in the afternoon
and lasting until O'Clock in the morn
ing, so that it was next to impossible
to get a reliable observation from the
sun; that if he had ATTEMPTED Port
Stanley with his ship and crew Grip
pied as they were. he would have been
in serious danger of running ashore
and losing his ship, that the entrance
to the harbor is less than one-half a
mile wide; that there is no tug there;
that there would have been great diff
Guilty in working SO long a ship into
the entrance. since even with a favor
able wind there is scarcely sufficient
room TO clear the entrance, and that
with SO long ship half a mile is very
scant room for sailing; that after en-
tering the outer harbor it is danger