The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1904-09-03
THE LATE JUDGE ESTEE'S
POSTHUMOUS REVERSAL
Decision OF Ninth Circuit Court of Appeals
Clearing Captain Graham of Negligence
in the Schrrmacher-PheIps Case.


i Port Stanley. one of them relating a
i thrilling experience of his own there
The court points out that there was
no evidence even tending to contradict
4 this testimony except an extract from
i the Encyclopedia Britannica, which
| went to show that Port Stanley was
convenient port of repair where an
average of fifty ships aggregating 10000
tons entered in a year.
The case of The Iroquois, 11S Fed.
1908, is quoted in which a seaman was
injured at sea $50 miles. from Port STAN
ley. and in which this same court
(Nfnth Circuit Court of Appeals) held
that the master should have taken him
into either that port of Valparaiso.
Yet, it is shown, that case was different
in that the injury was more severe than
in the present case that there was no
ore on board possessing any surgical
knowledge or experience and the bones
of the leg never united. and, moreover.
that there was no evidence before the
court of any difficulty in entering Port
Stanley and the accident occurred in
[ the summer instead of the winter of
that region. With reference to such
former case the appellate court goes
on to say:
THE Supreme Court, on appeal. with
some hesitation affirmed our judgment,
but only on the ground that the cap
tain might have been negligent in not
putting into Valparaiso. Said Mr.. JUS
tice Brown, speaking for the court:
Each case must depend upon its own
circumstances having reference to the
seriousness of the injury, the care that
can be given the sailor on shipboard,
ha ity of ;Y1te Il iof
the consequences of delay to the in
terests of the ship-owner, the direc-
ton of the wind and the probability of
its continuing in the same direction,
and the fact whether a surgeon is
likely to be found with competent skill
to take charge of the case. With refer
ence to putting into port all that can
be demanded of the master is the ex-
ercise of reasonable judgment and the
ordinary acquaintance of a seaman
with the geography and resources of !
the country. He is not absolutely
bound to put into such port if the
cargo be such as would be seriously /
injured by the delay. Even the claims I
OF humanity must be weighed in a ball I
ance with the loss that would probably
occur to the owners of the ship and
cargo. A. seafarillg life is a dangerous
one, accidents of this kind are pecu- !
liarly liable to occur, and the general
principle of law that a person entering
a dangerous employment is regarded I
as assuming the ordinary risks of such |
employment is peculiarly applicable to
the case of seaman The court in
conclusion said: AS the decision of
the District Court was unanimously |
affirmed by the Circuit Court of APP |
lie n inIy T..
such preponderance of evidence as
would justify us in disturbing THEN |
conclusion %
In view of that expression of the |
opinion of the Supreme Court, the
Court of Appeals does not think that
the captain of the Erskine NJ. Phelps
was negligent in not putting back to
Port Stanley. Neither does it agree
with the trial court in holding, further,
that the captain was negligent at a
later date in not deviating from his
course and putting into Valparaiso,
which he could have reached in nine
days sailing from that date august
g.. Captain Grahams reason for not
going to Valparaiso was that at that |
time the weather was fine, and he had /
reason to believe that the bones of the
anpellee's leg had united, and that the |
man was doing well. On the matter of
the appelIee's condition the court finds |
no substantial variation in the testi- /
mony of the three Honolulu surgeons
who testified, one for the appellee and |
two for tine appellants. Their opinion |
was that, so far as ultimate recovery |
was concerned, nothing could have
been done surgically after August and
that from that time the conditions We're
as favorable on the ship as they would
have been on land. The Court of APP
peals concludes its decision as follows;
There was some difference of opin-
ion as to the question of the perma-
nence of the injury to the appellee by
reason of the fracture of his leg if not
further operated upon. DR.. Herbert
testified that the appellee would ulti-
mately have perfect use of his leg. /
DR.. Day thought that he would be able |
to follow his occupation, but that he ,
would have to favor himself a little; !
that he would not be as nimble as he !
had been. DR. Cooper considered the /
mending of the leg "a good job and /
thought that the appellee would have
a good leg, a leg that would enable him
to earn a livelihood in any walk of /
life
When on August 2Sd the appellee
was injured the second time by fall |
ing on the deck, the ship was as near
to her port of destination as to any |
other. So far as the evidence goes, |
the shortening of the appellee's leg |
may have been caused by a second |
fracture sustained at that time. If |
that be true. the ship could not. in |
any view of the case, have been re- |
sporsible for that injury. Considering |
the whole Of the evidence as it is pre- |
sented here, we think that the captain |
was not negligent at any point in the |
history of the case, and that the ship |
is not liable, therefore, in damages. |
The decree is reversed. and the cause |
is remanded to the District Court, with |
instructions to dismiss the libel