The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-06-18
LIABILITY
Of The SHIP
Does Not Exist Where
the Master Is Not
Aware.

Following is the decision previously
noted of Judge Sanford B. Dole on the
libel in admiralty of Robert H. Cur
tbs VS.. the American bark Dirigo, etc.
AS may be inferred from the reading.
the decision is of great Importance to
masters. mates and seamen. 1t shows
that the snip can not be held response
bic for mistreatment of a sailor where
il is unknown to the master:
SYLLABUS
Admiralty Rule Is: This rule applies
to libel for assault and battery with
in the jurisdiction of an admiralty
court, when the treatment complained
OF is limited TO a single occasion and
is without the knowledge of the mas
ter. and such a suit must be in per-
sonam. even though It is brought for
breach of the implied contract to treat
the Hnelant humanely as an articled
seaman. But where there is a con-
tinued course of i'll treatment known
to- and tolerated by, the master. the
rule does not apply and libels for dam
ages therefor may be brought in rem.
Liability of ship for masters negli-
gence in engaging a mate of known
brutal disposition, who afterwards as
saults a seaman of such ship: Whether
q ship may be held liable for assault
and battery on a seaman where the
master hires a mate, knowing that he
has a brutal disposition, who subse-
quently assaults and beats the seaman,
quaere
Geo. A Davis, proctor for libelant:
Holmes & Stanley. proctors for Ii
belize
DECISION.
The libel in this case is in rem
against the Hbelee. for an assault and
battery upon the .ibelant by the second
mate OF the libelee while the ship was
lying in the port of Honolulu, Terri
tory of Hawaii. The grounds of the
exceptions are as follows:
L. That the allegations in the said
libel contained do not disclose any adj
miralty or maritime claim or lien upon
the said bark whereupon an attach
ment should be founded; and
so. That the court has no jurisdic-
ton in the premises on the ground
that the claim set forth in the libel can
not be Irrigated in suit in rem, such
suit being barred by Admiralty Rule
No 49,
Admiralty Rule Is is as follows: I'm
all suits for an assault or beating on
the high seas or elsewhere within the
admiralty jurisdiction, the suit shall be
i'll personam only
The admiralty rules are established
as rules of practice for the courts of
the United States in admiralty and
maritime jurisdiction in pursuance of
an Act of Congress. If this rule applies
to this complaint, the court is bound
by it.
The libel complains that such assault
and battery was a violation Of his con-
tract with the libelee and the duty
cast on the owners thereof and the
master and officers to treat libelant
humanely while upon said vessel as an
articled seaman. Counsel for libelant,
referring TO Admiralty Rule Is, cites
from Benedicr's Admiralty, Third Edi-
ton, page It's. which, in referring to the
rule providing that all suits for assault
and battery must be in personam only,
uses the following language:
This is undoubtedly true, where the
action is technically for the assault and
battery. as a mere tort; but it would
seem. on principle, that if the action
be brought on the contract, as for not
a passenger safely and with
out injury. or for not treating with
proper kindness a passenger or seaman,
an assault or beating being the grava-
men of the breach. the suit may be in
rem against the vessel
Although this expression by Benedict
is plausible and appears reasonable, to
my mind it is not sufficient to remove
a complaint for assault and battery
from the rule. for the assault is the
W hole complaint. and calling it a VIC
lation of a contract does not essentially
change the character Of the case ex-
cept TO make it a suit for damages for
a breach of contract instead of suit
for damages for a tort 1 find no
cases which support this citation from
Benedict, except under circumstances
where there is a continued course of
i'll treatment known to and tolerated
by the master. which is not the fact as
alleged in this case.
If such a course of treatment is not
within the 18th Admiralty Rule, it is
because it is distinctvely a breach OF
the implied contract TO protect the
crew from violence. being a course of
conduct toward a seaman which IS
within the power of the master, the
representative of the owners, to pre-
vent But where a single assault takes
rlace. not in the presence of the mas
ter. which he had no opportunity or
preventing. there seems no ground for
tho contention that Rule Is does not
apply. even though it is nominallY
brought for violation OF contract in
stead Of in tort. unless it could be held
that tie ship was liable in that the
master representing the owners was
guilty Of negligence in providing man
Of brutal disposition as second mate.
" hich proposition might be tenable
under an allegation that such dispo-
sition was unknown to the master
when he engaged him
Under the first ground of the eXcep-
tons there is no allegation in the libel
that the assault complained of was
known to the master or was in his
presence.
The exceptions are allowed on both
grounds.
SANFORD B. DOLE.