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ARGUED AND DETERMINED
UNITED STATES CIRCUIT COURTS OF APPEALS AND THE CIRCUIT AND DISTRICT COURTS.
THE ERSKINE M. PHELPS.
(Circuit Court of Appeals, Ninth Circuit. May 31, 1904.)
1. SEAMEN-INJURY IN SERVICE-DUTY OF SHIP TO MAKE NEAREST PORT. The master of a sailing ship on a voyage to Honolulu was not chargeable with a neglect of duty which renders the ship liable in damages because he did not return from the vicinity of Cape Horn to Port Stanley, Falkland Islands, which was the nearest port, and 540 miles distant, with a seaman who received an injury in which both bones of his leg below the knee were broken, where the mate, who had some surgical skill and experience, took charge of the injured man, and set the bones, which united firmly, but, by reason of the fracture being oblique, overlapped, producing a shortening of the leg, and where, while the ship could probably have made the islands in two or three days, the season was midwinter, when the days were short and cold and storms prevailed, and it was further shown without contradiction that the entrance of the harbor at Port Stanley by a ship of her size was very dangerous, and likely to take several days at that season, and that vessels went there only as a last resort, and in cases of dire necessity.
Appeal from the District Court of the United States for the District of Hawaii.
R. W. Breckons and Holmes & Stanley (Milton Andros, of counsel), for appellants.
T. McCants Stewart and J. J. Dunne, for appellee.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
GILBERT, Circuit Judge. The appellee was an able-bodied seaman on the Erskine M. Phelps, a full-rigged four-masted ship of 2,715 registered tons, which sailed on May 1, 1903, from the port of Norfolk, Va., bound for the port of Honolulu, Hawaiian Islands. On July 15, 1903, while in latitude 58° 29′ south, longitude 65° 30' west, a little to the southward and westward of Cape Horn, the ship encountered
very heavy gales, and was laboring heavily. About 6 o'clock in the evening, when the ship had just come about, and while the men were hauling at the forebraces, a large wave came over the port bow and completely buried the fore part of the ship. The appellee, who was hauling at the forebraces, was struck by the wave and thrown against the rail, and thereby sustained a fracture of both bones of the right leg at a point nearly midway between the ankle and the knee. The captain, knowing that the first mate had some medical skill, directed him to set the broken leg. The first mate accordingly did so. He testified, and it is not disputed, that he had served from 1894 to 1897 in the United States navy, and had received instruction in "first aid to the wounded," and had served 270 days in the Boer War, in which he said he had had plenty of experience, for the small commandoes had no surgeons, and the men had to help one another. The first mate, after setting the fractured bones, placed the appellee's leg in splints, bandaged it, and suspended it in a swing. The appellee was confined to his bunk until August 23, 1903, when he was carried out on the deck. Four days later, while walking on the deck with the support of a crutch and a cane, he slipped and fell, and his leg was again injured, probably broken. It was again bandaged and placed in a sling, and the appellee was confined to his bunk until about four days before September 15, 1903, the date of the arrival of the ship at Honolulu. On September 17, 1903, at his request, the appellee was taken to a hospital at Honolulu. It was there ascertained that the bones of the leg, which had been obliquely fractured, had firmly united, but that they overlapped, producing a shortening of the leg. The trial court found that the appellee was permanently injured and incapacitated from performing hard labor, but that there was no proof of the failure of the ship in its duty to him, except in the neglect to provide proper care and medical attention, which should have been done by putting into some convenient port for surgical treatment, and that the failure of the master so to deviate from his course constituted negligence for which the ship was liable in the sum of $1,800.
The accident occurred in the middle of the winter season. Eight others of the crew were injured at the same time, leaving nine men on duty. Of these nine men, the captain testified-and it is not denied— that two or three were useless on account of saltwater boils and ulcers. The same sea that caused the accident washed overboard the fore and main braces. Some of the braces were cut in twain by the iron shutters of the ports; some of them had to be spliced, and others replaced. Under these circumstances the captain was confronted with the question whether his duty to the injured seaman required him to take the appellee back to Port Stanley, in the Falkland Islands, for surgical treatment. The lower court held that it was his duty to have put into the nearest port to obtain such aid, "if it was reasonably possible for him to do so," and that he should have sailed for Port Stanley. At the time of the accident, as shown by computations made from the log of the first officer, the ship was 484 miles in a direct line from that port, and 540 miles as the ship would sail. The wind was favorable for sailing in that direction. The ship, with all sails set, and under favorable conditions, could make 288 miles per day. The captain, in giving his