Year: 1873




This Is a libel against the steamship Nebraskn in
which il is alleged in the information by Ferdinand
W. Hutchisor, Minister of the Interior and Presi
dent of the Board of HEALTH that said ship arrived
in this port on the 5th day Of May 1872, and that
there on board a certain passenger by the name
Of John Fletcher, who had been notoriously sick
for the last twenty-four hours previous to his
arrival, with a contagious disease known the
smallpox, and which could easily have been as
ceriained by proper medical inspection, and ex
animation, by the master of said steamer, and
her officers; and it is further alleged that there
were certain children sick of the same disease,
yet the master of said steamer although he knew
that the said contagious disease existed on board
at the time Of her arrival in port, falsely signed


certificate of health; and it is further alleged that
by reason of gross negligence and false certificate OF
the master of said steamer, the smallpox clan
destinely introduced into this Kingdom, contrary
10 the 295th Section of the Civil Code in which it is
declared that any vessel which shall be the OF
clandestinely introducing into this Kingdom any
contagious disease dangerous to the public health
shall be liable to seizure, confscation, and sale for
the benefit OF the public treasury.


There is general!deniAl Of the allegations in the
libel and the issue is clearly made; and the question
submitted to the Court is was the smallpox, al
legged in the libel clandestnely introduced here by
means OF the steamer Nebraska?


lam satisfied from the evidence that the passenger
Fletcher bad the smallpox, but that it was not
clearly developed when he landed; and the question
is, whether he permitted to go ashore when the
officers ofthe ship knew, or by reasonable diligence
could have known, that he had the disease. clan
desne introduction of the disease is, with secrecy
and with knowledge, or an omission to acquire the
knowledge which could have been done with reason
able diligence, and intelligence.


The counsel for the informant contends that the
mere fact Of the introduction of the disease by the
Nebraska was praa fdcie evidence that it was clan
destinely done and that the burthen of proof was
on respondent, and in this opinion fully concur.


Ifa master gives a health certificate it Is his duty
to know that there is no contagious sickness on
board his vessel and if he neglects to the means
TO acquire the necessary information, it is clandes
tine introductine of disease if such sick persons
landed. On this ship there is a surgeon, and the
captain relies upon him to keep him informed as to
the health of the passengers No better precaution
can be exercised than to employ cometent medical
man TO attend the sick on board This is the recog
nized usage on all passenger ships. The captain



disease on board the Nebraska on the passage re-
ferred to, and was not told o-by any one.


The Surgeon of the ship testified that he was act
ing as such on board the Nebraska on her passage
from San Francisco when she arrived on the 5tn of
MAY last, and that he did not know by name
passenger by the name OF Capt John Fletcher. He
SAYS that if there had been any sick with small
pox be should have known it, and that if Fletcher
was sick on board he never applied to him for ad-
vice and that be was not aware that any passengers
landed here were sick with any disease.


1t appears by the testimony of Capt. Briggs,
fellow passenger, that he knew Fletcher, and that
be saw him the day before the vessel arrived port
and he said he felt very bad and there was on his
hands kind of rash, but it could not be seen ex-
cept by close observation. He says that Fletcher
refused to see the DOCTOR and said that he could not
do anything with ships doctors; that he would
wait until be got on shore Capt. Briggs says " that
did not tell Fletcher what he thought the disease
was. 1t might have been the measles, but thought
it was the smallpox. did not mention to anyone
on board ship that thought Capt Flether had the
smallpox, and 1 heard nothing of its being cpl
demic in San Francisco" The Nebraska arrived
Sunday morning, and Fletcher came ashore about
half an hour after we arrived.


Capt Lambert, a follow passenger, testified that
he saw Fletcher often during the passage, aud that
be was very sick with very bad cold; that the
night before arrival be saw Fletcher and observed
that his face was badly swollen, and he examined
his legs and arms, and they weie dark red and be
thought it the erysipelas he further testified that
he never heard it mentioned that there was small
po1 on board.


A. F. Judd, Esq, was passenger on the Nebraska
az the same time, and he testified that be knew
Fletcher on board, and be was very much surprised
when he heard that he Fletcher had had the small
pox. He saws be never heard the smallpox men,
toned on board.


Dr. Hoffman, who examined Fletcher the day
after be came ashore, states that when he saw him
he had an eruption more less all over the body,
but more particularly around the abdomen BE
saws; MY impression was at first that had seen
something like this and two diseases passed through
nv mind; first, the idea of smallpox, as having
seen something like it here in 1853 then again in
regular malignant typhus IN Europe, but it seemed
TO me strange that wherever saw this round the
abdomen it was much more malignant in the face in
those cases saw before The nose, face and mouth
were the worst, which was not SO here. Again,
wherever saw patients in that condition they were
prostrated or delirious, and again in typhus the
same-entirely prostrated. then examined him
and asked the history Of this case and be told me
he had been sick ever since he left Chicago, with
cold and rheumatism, and had been travelling with
out accommodation; he also said be had had scurvy
at some time or other. After that the case became
more obscure TO me, as the marks led me TO think
the man had a disease produced BY want Of proper
food, or exposure generally, and this with the
former severe scurvy made me think perhaps that
the man might not have the smallpox, but disease
produced by his blood being in bad state, at the
same time could not make it out exactly. thought
1t might be smallpox or not, but certainly not the
regular form of smallpox"


Dr. Hutchison testified that he went in company
with DR.. Hoffman, TO Fleteher's room TO examine
him, and after examination, of opinion that it
was the smallpox, from the history of the case
as made by Fletcher himself


Dr. McKibbin, after examination of the case, and
hearing from Fletcher history of the state of bis
heath since the time he LEFT the Eastern States, was
of the same opinion.


Dr. McGrew was of opinion that Fletcher had the
smallpox from his first examination of his case, al
though cold affecting the lungs retarded ts devel-
opmeut The Doctor says that be died of congestion
of the lungs, and not Of smallpox. Without the
cold the smallpox would have run its regular
course. l should judge that he had had it two or