The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1907-09-07
FOREIGN SEAMAN
CAN LIBEL SHIP
Judge Dole Makes important
Rulings in Local
Case.


man VS.. the Steamship Nebraskan.
Judge Dole yesterday overruIed the
exceptions Of the libelee to the libel
and denied the motion to dismiss it.
r. w. Breckons, proctor for the Ii
belize, then called his attention TO the
question of the negligence of a fellow
servant, and Judge Dole suggested to
the libelant that he had better amend
his libel to conform to the suggestion
made and gave permission to amend
and five days to the libelee to answer
the amended libel
The facts in dispute are stated in
the opinion of Judge Dole overruling
the exceptions to the libel. The opin-
ion is as follows:
This is a libel in rem, for damages
for personal injuries, in which the Ii
belant alleges that he is an articled
seaman on board the American steam
ship Nebraskan, and that while in Ho-
nolulu last December, as the Nebras-
kan was lying at the wharf and the
cargo being discharged, he was en-
gagged in painting the ship and was
at work on the outside of the vessel,
standing in a boat, and through the
carelessness of the workmen who were
hoisting large iron and steel plates out
of the vessel TO the wharf by means of
ropes and other appliances, in negii-
gently arranging the ropes used in
Jnoisting such plates, one of them Slip
ped from its fastenings and fell upon
this libelant while so engaged, injur-
ing him severely, for which injuries
he demands damages of three thou
sand dollars. He further alleges that
he is without property, and therefore
unable to pay or secure costs, and that
he has a good cause of action, and
asks to be allowed to prosecute suit
in forma pauperis, according to the
act of Congress providing for such
cases.
The Observation-Disclosures Steamship
Company, a corporation of the State
of New Jersey, filed its claim as the
owner of the libelee, and filed its mo-
ton to dismiss the action, and later,
exceptions to the libel. The motion
to dismiss is based on the grounds
that there has been no payment or
security for costs, no showing OF c1ti-
zenship under the act providing for
suits by citizens of the United states
in forma pauperis, no showing that all
persons interested in the suit are un-
able to pay or secure costs, nor that
the action is not brought on contin-
gent fee. 1 find that the statute re-
ferred TO, which is the act of july ~
1892, 81 Statutes at Large, page 2oZ'
has been complied with, the ibelant
having stated that he was without
property and unable to pay or secure
costs, and it is further shown by the
affidavit of the proctor appointed In
this case, that there is no one inter-
ested in the suit able to pay or secure
costs except himself, and that ne Is
in the case under no contingent Zee
and is entitled to nothing from the
proceedings except what fee may De
awarded him by the court. l f1nd tna'
the allegation of his engagement as
an articled seaman on board an Amer
ican vessel brings him within the pro-
visions of the act referred to, 1t Delns
an established rule in American prac-
tise. corresponding with the English
rule. that a sailor on an American
vessel is liable to American regula-
+ions and subject to American autnor-
titles even when he is charged with
the commission of a crime in foreign
territory. and he also has the protec-
finn Of the American laws for the time
being. as if he were citizen. III
every regularly documented American
vessel the crew who navigate it viii
End their protection in the flag which
is over Them webster's Works, Vol
G mage 325. This rule, that the vessei
H,eine American Is evidence that tne
,aooan IN hoard are such, is now an
established doctrine of this country
or5 in s,,pport of it there is with the
Aroarican people no diversity of opin-
son and can be no division or actlon,
In re Ross, 40 u. S. 453, 47s-
The exceptions to the libel are, III
hrief. that there is no maritime clalin
<,,,ovn in the libel upon which an at
ltachment should be founded; second
lho aueeations do not constitute a
cause of action in rem or at all.
-6na that the admiralty courts OF the
Trnited states have jurisdiction In rem
-for matters of tort, with the exception
created nv the sixteenth admlraIt9
r,la which provides that in SUITS Ioi
assault the suit shall be in personaII
sonlv. McGrath VS.. Candelere, 10 E y
12s. mo. $500. But as FAR as mess
two exceptions raise the point ina
the lIbelant has no claim upon tme
shin for injuries caused by the negh-
gence of his fellow servants uh,es>
the case is covered by the act reia1-
ing to the liability Of common carI as :
of June IL, 1906. (stat. U. 5. lSOo-O
mat /. page 2s2). as indicated IN 'ns
argument. I find that they must oS
allowed. there being no aiiegation -
the libel that the libelee Is a conlnlo.
carrier. The act referred 10 mar.
common carriers engaged In business
xvithin certain limitations Liable 70 any
of their employees for such oalnases
as result from the negligence Oh any
Of their other employees respeetiveiy.
The third exception Is that II ~
not appear in what the neshsenes
charged consists. nor are any ~
constituting negligence set forth. q rs )
allegation is sufficient. the Iact =.
niate slipping from its fastenlne :
while being swung from the snip - -
the shore. suggests neglsehee
&c tho libelee on its defense.