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

Judge Dole's award of $17,50O dam
ages to Henry witthof, first officer OF
the barkentine Fullerton, for personal
injuries received through defective ap-
planes on the Fullerton have given
| the case an interest and drawn an
cause of this and because of the fact
| that Judge Dole has written an opin-
ion in the case that in it's limpid sim
plicity of statement makes it intensely
| interesting. the opinion is here pre-
sented in full.
| The Proctors in the case were E. A.
who sued for $4,000 damages, and
Smith and Lewis and l.. J. Warren for
the vessel. The opinion is as follows:
The libelant, the first officer of the
American barkentine Fullerton, brings
his libel in re against the said Full
lerton and claimants, for damages for
injuries received by him on a voyage
Of the said Fullerton from the port
of San Francisco, State of California,
to the port of Kihei, Territory of Ha-
wall, she being under tow by steamers
damages are alleged: First, that dur
ing such towing operations the tow
line, the same being a chain cable,
started to slip over the windlass of the
Fullerton, and while libelant was at
tempting to prevent such slipping by
lashing the line to the towing bitt he
was injured by the slipping of the line,
which injury was due to the negli-
gence of the owners of the Fullerton
in furnishing windlass which with
ITS appliances was unsafe to those US
ing it: second. at the time of such
accident the Fullerton was about 500
miles from Port Hartford and about
1900 miles from the port of Kihei, and
the master of the Fullerton. in viola
ton of his duty to libelant, proceeded
on his voyage instead of returning to
Port Hartford for medical assistance for
libelant, whereby and because of the
long time required for reaching said
Kihei, libelants right arm had to be
amputated after arriving at Kihei, in
order to save his life. For the said
negligence and violation of duty to
ibelant, whereby he was caused ex-
IRENE and long continued suffering
and the loss of his arm, and the in
capacity, resulting therefrom, to per-
'orm the duties of his employment as
mariner and ships officer, he claims
damages in the amount of fifty thou
sand dollars.
The libelees, in their answer. deny
he negligence charged, and allege that
before the departure of the Fullerton
rom San Francisco, whence she pro-
,eeded to Port Hartford for her tow.
he Iibelant had accurate knowledge of
he said windlass and it's appliances,
md its functions and the operation of
he same, and of any defect therein, If
efect there was, and of the liabilities
rising therefrom in the case of the
owing of the Fullerton by means
hereof, and therefore assumed all the
isks, if any, that might arise there
rom: and further allege that libelant
vas injured solely through his own
arelessness in attempting to lash the
owing line in heavy weather, and in
reckless manner, without signaling
he towing vessel Lansing first to slow
own.
As to the charge of the libel OF
collation. of duty to the libelant, the
nswer alleges in substance that If
he Fullerton had put about and re-
urned to Port Hartford she would have
cen compelled to cast off her towline
rom the Lansing and proceed under {
err sails alone; that the winds were /
ncertain and variable, and the mas '
er believed that they would in all
reach the port of kihel
18th the aid of their tow in less time q
nan it would take to reach Port Har- Il
1rd under sail. 1
The first basis of damages raises c
NO questions of fact and of law; first. S
as the ship. through its owners ana |
guilty of negligence in 2
FINISHING unsafe appliances with v
-hich to manage the ship, thereby 7
,ndering it liable to injuries received d
V reason of such unsafe appliances? i
if that is the case, Is the y
nip relieved from liability because OF o
10 assumption of the risk by libelant, a
r by his negligence in exposing him. v
sIf TO the danger?