CHAPTER X. WHO ARE AND WHO ARE NOT FELLOW-SERVANTS-EMPLOYES NOT IN RAILROAD SERVICE. § 144. Persons Employed on and about Vessels. 146. Persons Employed in Mills, Factories, etc. 148. Other Employes. § 144. Persons Employed on and About Vessels.— There is no distinction in the application of the fellowservant rule made in favor of this class of employes. The same principles apply whether the offending or injured employe is a seaman or a landsman It is accordingly held that if the mate of a vessel is injured through the negligence of the captain or master there can be no recovery, they being fellow-servants. But if the action is by an ordinary seaman for an injury caused by the negligence or unskillfulness of the captain, it has been held by the Supreme Court of Wisconsin that it would lie. Thus in Thompson v. Hermann2 it appeared that the master, who was also part owner, ordered the plaintiff, a seaman, to adjust the rigging in a dangerous manner, though the plaintiff protested and suggested a safe way of adjusting it. But the master refused to adopt the safe course, and imperatively ordered the work to be done in a dangerous manner. The plaintiff while in the careful discharge of his 1. Mathews v. Case, 61 Wis. 491; s. c., 50 Am. Rep. 152; Caniff v. Blanchard Nav. Co. (Mich.), 33 N. W. Rep. 744. 2. 47 Wis. 602; s. c., 32 Am. Rep. 784. duty, obeying the master's order, fell and was injured. It was held that the plaintiff might recover. "The decision was placed mainly on the peculiar character of the employment, and the relations existing between the master and a common seaman of a merchant vessel outside of port.' But this is not the rule in all jurisdictions. A ship owner should not be held responsible for the mere neglect of officers, to properly perform their duty if those duties do not include the personal obligations of the owners to furnish proper appliances, competent servants, etc. If they provide a seaworthy ship properly equipped and commanded by competent officers, they have discharged their duty toward the subordinates. "They must be deemed to have entered upon the service with the understanding that they take the chances of the neglect or carelessness of any or all others who are engaged in the common employment and occupation of loading, unloading or running the boat."3 The master of a lighter has been held to be a fellow-ser 1. Mathews v. Case, 61 Wis. 491; s. c., 50 Am, Rep. 151. 2. In a New York case it appeared that injury resulted to a hand employed on a State boat, through the negligence of Wells, the captain, who at the time was engaged, with several hands employed on the boat (including the claimant), in digging clay from a bank, and loading the boat. The negligence consisted in setting the claimant to work under the bank after Wells had loosened the overhanging earth, so that it fell upon and injured the plaintiff. It was held that Wells, though captain of the boat, with power to direct those under him, was, nevertheless, a co-servant within the rule. "The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only as is committed to a foreman. It is not claimed that vant of his crew.1 And a laborer shovelling grain for an elevator company, and the captain of a tug, owned by the company, engaged in bringing a vessel to the elevator, are fellow-servants. Treating the pilot as the master of a vessel, he is responsible for its management and navigation, and it has been held by the United States Circuit Court for the Southern District of New York that he is not a fellow-servant of a deck hand who is injured through his negligence. The mate of a vessel and a common sailor or deck hand are considered as fellow-servants in all jurisdictions save those in which the negligence of almost any superior servant having authority to command is held to be the negligence of the master. "If we are asked to establish a special rule," say the Supreme Judicial Court of Massachusetts, "applicable only to mates of vessels and common sailors, on the ground of the peculiar relations between them, the existence and particulars of those relations must be shown. The evidence in the case at bar discloses only facts which, under the decisions of this Court, show that the mate and the plaintiff were fellowservants of the defendant".5 Allen, J., also said: "The her owners, therefore, are liable, according to the principles of municipal law for injuries happening to a seaman through the negligence of any of his associates in the performance of their ordinary duties." The City of Alexandria, 17 Fed. Rep. 390. 1. Johnson v. Boston, etc., T. Co., 135 Mass. 209; s. c., 46 Am. Rep. 458. 2. Baltimore Elevator Co. v. Neal, 65 Md. 438. As to whether a fireman and master of a steam tug are fellowservants, see Clatrop Chief, 7 Sawy. (C. C.) 274. 3. The Titan, 23 Fed. Rep. 413, following Chicago, etc., R. Co. v. Ross, 112 U. S. 377; s. c., 17 Am. & Eng. R. R. Cas. 501. See also Smith v. Steele, L. R. 10, Q. B. 135. 4. Benson v. Goodwin, 147 Mass. 237. 5. See also, Holverson v. Nisen, 3 Sawy. (U. S.) 562; Olson v. Clyde, 32 Hun (N. Y.), 425; The City of Alexandria, 17 Fed. Rep. 390; Malone v. Transportation Co., Biss. (U. S.) 315; Mathews v. Case, 61 Wis. 491. A second mate superintending the work of reeling in a hawser is a fellow-servant with a seaman turning the reel on board ship. The Egyptian Monarch, 36 Fed. Rep, 773. A grain trimmer employed by a contractor to assist in trimming the grain with which a vessel is being loaded has been held not to be a fel plaintiff contends that the case of mate and common seaman on a merchant vessel is an exception. We can see nothing in the evidence reported which excepts this case from the rule applied to a superintendent of work, and one working under his orders. The Chandos, 4 Fed. Rep. 649; Daub v. Railway Co., 18 Fed. Rep. 625; and the Neptune, 30 Fed. Rep. 925, are cited to sustain the ruling of the court that a common, sailor and a mate are not fellow-servants. The first case contains, on this point, dicta only, of Deady, J. The second case contains a report of an oral charge to a jury by the same judge, which expressly assumes the responsibility of instructions against the admitted probable weight of authority. The third case was against the owners of a vessel, one of whom was the master, for negligence of the master. Whether a person who was 'taking a run' from Bath to New York as a 'sailor or runner,' without signing shipping articles, would be a common sailor within the meaning of such a rule, we cannot decide, because we do not find any such rule." A boatswain of a vessel and a stevedore, selected by the boss stevedore and paid by the ship's owner, are fellow-servants and the latter is not entitled to recover for the negligence of the former in managing a steam-winch used in hoisting cargo whereby he was injured.1 But a longshoreman engaged in discharging a ship's cargo who is injured through the negligence of the officers of the vessel in failing to provide proper appliances is entitled to damages; and the same principle has been applied where a stevedore engaged in unloading cargo was injured through the negligence of a head stevedore who had charge of the low-servant of the mate who direct- 878. ed the placing of the covers on the hatches. Crawford v. The Wells City, 38 Fed. Rep. 47. 1. The Furnessia, 30 Fed. Rep. 2. The Carolina, 30 Fed. Rep. 199. See also Crawford v. The Wells City, 38 Fed. Rep. 47. tackle in supplying a defective rope; the Supreme Court of Pennsylvania held that they were not fellow-servants.1 But ordinarily a ship owner is not liable for an injury to his employe by the negligence of a stevedore in loading the vessel.2 A chief engineer and a third engineer on a steamer are fellow-servants;3 so are employes loading a vessel with coal and a coal hoister.4 In a recent New York case it appeared that the defendant, a contractor, had employed a competent superintendent, who had general charge of a job of repairing a vessel, and had authority to engage all necessary workmen under him. Plaintiff's intestate was so employed, and was engaged in the hold of the vessel. Three decks extended above him, with hatchways, which, when uncovered, presented an open space through all of the decks to the hold. The superintendent ordered some workmen to remove the hatch. Through their carelessness, the hatch slipped, and fell through into the hold, upon plaintiff's intestate. The Court of Appeals held that the defendant was not liable. An Irish case showed the following facts: The deceased was employed, with others, to shift a cargo on the defendants' vessel. Upon going on board the names of 1. Mullan v. Philadelphia, etc., Steamship Co., 78 Pa. St. 25; s. C., 21. Am. Rep. 2, 2. Rankin V. Merchants, etc., Transp. Co. 73 Ga. 229; s. c., 54 Am. Rep. 874. Compare Murray v. Currie, L. R. 6 C. P. 24. In Californfa it has been held that the foreman of a gang of men to whom a stevedore delegates the entire management of the work of unloading a vessel, with full discretion to control and supervise it, is not a fellow-servant with his subordinate employes; and if, in the performance of the work, death or injury results to such an employe through the negligence of the foreman, the stevedore is liable, although he exercised due care in the selection of a foreman. Brown v. Sennett, 68 Cal. 225. See also The Wm. F. Babcock, 31 Fed. Rep. 418. 3. Searle v. Lindsay, 11 C. B. (N. S.) 429. 4. The Islands, 28 Fed. Rep. 478. 5. Hussey v. Coger, 112 N. Y. 614. 6. McCarthy v. Bristol Ship-owners' Co., 10 L. R. Ir. 384. |