CHAPTER II.

OF THE CIVIL REMEDIES OF MARINERS FOR PERSONAL TORTS.

For the various personal injuries which the master of a vessel may inflict on a mariner, or which one mariner may inflict on another, the law has provided ample remedy. We have seen that the master is sometimes held responsible for wrongs done by those whom he ought to have restrained, or when they are done by his express How far liability as joint trespassers will extend to different parties, will appear in considering the various cases of torts and injuries common in the merchant service.

or presumed command.1

1. Assaults and batteries and imprisonments.

For these injuries, the mariner has a remedy against the actual and presumed trespasser, by an action of trespass at common law, or by a libel in the Admiralty, in what is technically called a cause of damage.

3

2

1 Ante, Part I, ch. 2, p. 26, 27.

Where

2 Watson v. Christie, 3 Bos. and Pul. 224. Sampson v. Smith, 15 Mass. R. 355. Brown v. Howard, 15 Johns. R. 119. Ward v. Ames, 9 Ibid. 138. Thomas v. Lane, 2 Sumner's R. 1. Thorne v. White, 1 Peters's Adm. R. 172, 174. Hutchinson v. Coombs, Ware's R. 65. Elwell v. Martin, Ibid. 53. Jenks v. Lewis, Ibid. 51. Bangs v. Little, Ibid. 506. Butler v. M'Lellan, Ibid. 219. Steele v. Thacher, Ibid. 91. Hutson v. Jordan, Ibid. 385. Polydore v. Prince, Ibid. 402. Pratt v. Thomas, Ibid. 427, 496. The

the injury complained of is actually committed by the mate, or any other seaman, at the master's order, by way of punishment, the master is liable, if the punishment is excessive.' If the assault were not committed by the master's order, but was yet done in his presence, and he might have interfered to prevent it, but did not, he will then also be liable, being presumed to adopt the conduct of the trespasser. Whether the party inflicting the assault, by the master's order, in the way of punishment, is jointly liable with the master, depends on the degree of the injury and the circumstances of justification. The mate, or other person, ordered to inflict punishment, is bound to obey, unless the master clearly passes the bounds of his lawful authority; to justify himself for refusing to do so, it would be necessary to show that the master was proceeding with cruelty and passion to inflict a gross injury. It has therefore been held, that the mate, or other person, punishing a seaman in obedience to the master's order, is not liable as a joint trespasser, unless the punishment is obviously and grossly excessive and unjust. But if the justification fails wholly, or in part, as if it appears that an officer, in executing the command of the master, proceeded with unnecessary harshness and severity, and a serious injury is inflicted,

3

Agincourt, 1 Hagg Adm. R. 271. The Lowther Castle, Ibid. 384. The Centurion, Ibid. 161. The Enchantress, Ibid. 395.

1 Thomas v. Lane, 2 Sumner's R. 1. Plummer v. Webb, Ware's R. 75. Elwell v. Martin, Ibid. 83. Butler v. M Lellan, Ibid. 219. Hutson v. Jordan, Ibid. 385. Brown v. Howard, 14 Johns. R. 119. Watson v. Christie,

3 Bos. and Pul. 224.

2 Thomas v. Lane, Elwell v. Martin, Butler v. M'Lellan, ut supra. Ward

v. Ames, 9 Johns. R. 138.

3 Butler v. M' Lellan, ut supra.

or if it appears that the master's order was of itself wholly unjustifiable and illegal, the party doing the actual injury will then be liable as a joint trespasser.1

2

Whether the ship-owner would in any case be liable for the consequential injuries occasioned by excessive punishment of a mariner, by the master, is a point which I have never known to be raised judicially. It is laid down generally that the owners are liable for the torts of the master in acts relative to the service of the ship, and within the scope of his employment in the ship. The cases in which this liability is most familiarly known are those of collision, and torts committed by the masters of privateers in making captures.3 The punishing of a seaman is in one sense an act relative to the service of the ship, as much as the shipping of a seaman; and it has recently been held by an eminent judge, that the owners are responsible in damages for the tortious abduction of a minor by their agent, the master, in shipping him, although constructive notice only was brought home to them. But the case of excessive punishment is distinguishable from this, by being a trespass, of the kind for which the principal is not liable, when committed by the agent. The master punishes a seaman by the exercise of an authority conferred upon him by law; and whoever exceeds such an authority becomes a trespasser ab initio.

1 Elwell v. Martin, Ware's R. 83. Brown v. Howard, 15 Johns. R. 119. In the former case, it was held that if some punishment was merited, the officer is liable for the actual pecuniary damage sustained, but not for vindictive damages.

2 Abbot on Ship. part 2, ch. 2, sec. 9, 11, p. 98, 99, edit. 1829. Ibid. note to p. 99.

• Sherwood v. Hall, 3 Sumner's R. 127.

For such trespasses of the agent the principal is not liable.1

2. Tortious discharge of a mariner.

The measure of damages in these cases has been stated in a former chapter. They are ordinarily recovered as wages, and are recoverable against the owner, as well as the master, in the same manner as in other cases of wages. The remedy against the master and against the owner might be sought upon two grounds. First, it would be by a special action for the tort committed by the master, in the illegal discharge, and for this, upon the principles before alluded to, the owner, it seems, would be responsible. Secondly, and what is the more common form, it would be by an action for the wages upon the original contract of hiring, the tortious discharge being a void act, and the contract remaining in full force. If non-performance of his contract be pleaded, the mariner then shows that he was prevented from performing by the act of the master, and recovers such damages in the shape of wages as the rules of law have established in these cases.3

3. Tortious abduction of a minor.

This is a marine tort, the remedy for which, as recently made familiar in admiralty proceedings, resides in the hands of the parent, or other person entitled to the custody and earnings of an infant. The incapacity of a mi

1

Story on Agency, ch. 12, sec. 308, 309, 310, 319.

2 Ante, Part IV, ch. 2, p. 299.

3 Hall v. Heightman, 2 East's R. 145. Sigard v. Roberts, 3 Esp. R. 71. · Limland v. Stevens, Ibid. 269. Sullivan v. Morgan, 11 Johns. R. 66. Wilcocks v. Palmer, 3 Wash. R. 248. Emerson v. Howland, 1 Mason's R. 45. Orne v. Townsend, 4 Ibid. 541, and the cases cited ante, p. 299, 230.

nor to enter into the mariner's contract, without the concurrence of the parent or guardian, is stated in a former chapter. The gist of this tort consists in the loss of service; but it has also been held, in one case, that it may consist in withdrawing the child from the supervision and control of the parent, even if he is not an inmate of his father's family, and though he may have been principally left to support himself by his own exertions, unless it appears that the father has abandoned all care of his child.3

The suit in these cases lies ordinarily against the master, actually committing the tort; but in a recent case, it has been held that the ship-owner may be charged with the damages, the court considering it one of those cases in which he is responsible for the torts of the master in acts relative to the service of the ship, and within the scope of his employment in the ship."

1 Ante, Part I, ch. 2, p. 14.

2 Plummer v. Webb, 4 Mason's R. 380. S. C. Ware's R. 75. Sherwood v. Hall, 3 Sumner's R. 127.

3 Steele v. Thacher, Ware's R. 91, 102. As to when a minor becomes, in a qualified sense, emancipated by the parent's neglect, see 1 Blackstone's Comm. ch. 16. Jenny v. Alden, 12 Mass. R. 375. Nightingale v. Withington, 15 Ibid. 272.

✦ Sherwood v. Hall, 3 Sumner's R. 127.