The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-10-21

duties under such circumstances h
can not be held TO have voluntarily
assumed dangers which he was ignor.
ant of at the inception of the voyage
or that We're outside of the ordinary
risks of his employment. The fact OF
a tug returning to the shore under
the circumstances off Port Hartford
with the other fact that libelant had
not signed shipping articles, does not
in my opinion, take his case out OF
| this rule. Furthermore if the libel
ant failed to appreciate the danger
/ attending the use of the winch, the
contention falls to the ground, what
ever the circumstances.
/ ''It is objected by the learned counsel
of respondent that the facts stated
| show that the service necessarily re-
quired by the employment was danger
| Gus, and that the plaintiff, by enter
! ing upon it, took the risks and haz-
ards upon himself, and that he was
not bound to obey orders requiring
such service, and might have declined
| the service and abandoned the en-
ployment, and was negligent in not so
doing''
I'VE think that the peculiar char
tions existing between the master and
the common seaman of a merchant
vessel outside of port, remove this case
from these objections and the author
tiles cited to sustain them; and that
although they might be correct legal
propositions in respect to other kinds
Of employment, they have scarcely any
application here. Smith " C,
O.
Wedgwood v. c. & N. w. R'y Co, "A
id. A, and many other cases in this
court Thompson V. Hermann, 80 Am.
Rep. 7S4, 7s5, 1856.
Counsel for the libelees contends al
so that the ship is relieved of liability
for the injury through the negligence
of libelant by which he carelessly and
recklessly exposed himself to danger
and brought the injury upon himself.
General statements of rule of law
are sometimes misleading, by being
vague and indefinite. The proper
statement of the rule is, that one who
knows of the defect and understands
the danger created by it, is precluded
from recovery when injured in con-
sequence of such defect, when he has
voluntarily exposed himself to the
Conn. r. P. Co, 155 u. S. 1856; N. W.
S. s. Co. ". Criggs, 146 F. r. 472. ATS;
Anderson V. CLARK, 20 N. E. $50, $50.
There may be a perception of dan
ger without knowledge of the risks"
Crawford V. Am. S. & W. Co., 123 F.
r. 275, 279, ESQ., Clark ". Holmes, H.
& N. 937. Libelant had been told by
some of the crew of the Fullerton of
h. lnCC # ho vork ~, -, Of
the Fullerton on the previous voyage,
by its slipping over the wildcat, by
which the wildcat was carried away
and the chain ran out, carrying the
starboard chain to which it was
shackled, with it. 1t was this, rather
than the danger of injury in the way
it actually happened to him. that was
in his mind, SO far as the evidence
goes. He had never before had to do
with wildcat when its chain was too
large for it. On the evening of the
oath of December, when he was in
formed that the chain was slipping
over the wildcat, he feared that it
might carry things away and not on
ly damage the ship but put her in
serious danger; to him it was an emer>
gency calling for prompt action. AS to
he says he had no authority to signal, |
and could not use the signal without |
the captains permission, and that |
time would have been lost in
to signal The negligence |
of the agents of the ship had brought |
about this dilemma. "In the presence |
of great and unforeseen danger no man |
is expected to act with elaboration" |
Kekauoha V. Robert Levers, 1 U. S. |
Dist. CT. Haw. rs, IS. "An engineer
who remains at his post and faces
danger is not to be deemed negligent |
If he believes his duty re-
quires him to do what he can to save
those under his charge, and he braves
death in the discharge of that duty,
the law has for him no censure, but
has, on the contrary, high commenda-
ton and respect" Penn. Co. v. Roney,
Is Am. r. 173, ia, IT'S; Cottrill V. Chi
cago, 81 Wis. 634, 80 Am. r. 796. These
Eases are not exactly analogous to the
case before the court, but they are
so to support the applica-
ion of the principle involved in them
There is no convincing evidence that
here was negligence on the part of
he libelant in the operation of MAX
ng the flashing referred to. The proxi-
nate cause of the accident was the
negligence of the ship, and the action
If libelant by which he exposed him
self to danger was not unreasonable
md may be regarded as meritorious.
rhe further point is raised in the argu-
nent, that the master was negligent in
Using the winch and misfitting chain
o meet the strain of the tow The
Joint is well taken The master,
moving that the chain did not fit the
should have adopted some |
ther method of fastening the towline,
~ the towing bitt, for instance, which
vas apparently made for this very pur-
lose.
The second basis of damage claim {
ID is the refusal of the master of the
fullerton to turn back for Port Har-
ord after the accident, for medical
ssistance. find no basis for an argu-
nent in the contention of counsel for
Ibelant that the Fullerton and the l
owing steamer, the Lansing, being 7
ngaged in joint enterprise and con- Z
ected by towline should be con- /
idered as a single vessel. as in the h