Tl:I:JJ:GRECIAN MON4RCH.

635

otherwise than in a.ccordance with their honest judgment upon the examination of the condition of the vessel. The insurers, though reinsured, paid the loss after a few days upon their surveyor'sr-eportofa total 108s. There are doubtless circumst5.nces in evidence calculated to hold raise some suspiciollj but,taking the evidence altogether, I these circumstances wholly insufficient to establish any fraud in the salej or; to show that the master, prior to the sale, had any knowledge or belief that the vessel was not asuhstantial wreck. The fact thfl,t it subsequentlyappeared that the ship was not injured so much as was supposed, ,does not prove fraud, or bad faith, nor tend to invalidate the sale,., The Amelie, 6 Wall. 18j The Sarah Ann, 13 Pet. 387. The sum required to raise the ship was large. In her apparent condition as a wreck, it was the master's duty to do with her the best he could, and to act upon the best judgment that could be formed at the time. Nearly all thecontemporaneous evidence sustains the master's judgment in ordering the sale, as the only thing practicable. There is no proof of the market value of the vessel as she lay sunkj nor that, when repaired, she was worth more than the cost ofraising and repairing her. The evidence, therefore, does not even showthat the master's erroneOUSj much less that the sale was fraudulent. The libels ll1ust, therefore, all be dismissed, with costs.

THE GRECIAN MONARCH. McMoRRAN

v.

THE GRECIAN MONARCH.

(District, Oourt, D. Nf/IJ) Jl'JI'sey. October 22, 1887.)
AD:MmALTY-PERSONAL INJURIEs-ExCESSIVE DAMAGES.

In a libel against a ship it appeared that libelant fell through an open hatchway, receiving severe wounds, and was seriously jarred, and thereafter was unconscious ,at intervals for two or three days, ana after three months in the hospital was discharged with his wounds healed, although he complained of a lame back. Four years later he swore he still felt the effect, but was uncorroborated as to this by his own medical experts, while the defendant's witnesses testified that he showed no signs of existing or permanent injury. Held, that the amount of damages given should be reduced from $3,638 to $1,200.

In Admiralty. ' Exceptions to commissioner's report.
JosephF. Randolph, . for libelant. Butler, Stillman &; Hubbard, for respondents.
WALES, J. The only exception entitled to serious consideration is the - third one, which is taken to the. amount of damages ($3,638) as excessive, and not warranted by the evidence. The question, argued by claimant's proctor,of the liability of the owners for any permanent injury which .may have been received by the libelant in consequence of the defl3Ctive or negligent equipment of the ship, has been so far as this court

636

FEDERAL REPORTER.

is concerned, by the interlocutory decree in favor of the libelant. and the only inquiry to which attention can now be given is whether the commissioner has erred in allowing the libelant greater damages than he is fairly entitled po. The libela'f1t fell through an open hatchway which, when not in use for loading or discharging cargo, had always been protected before that time, and had been left:unprotected without his knowledge. He fell a distance of 25 or 30 feet, receiving severe cuts on his head and leg, and being badly bruised and shaken up. Another one of the crew fell through the same hatchway, an hour after the libelant, and was killed. . The libelant did not suffer a fracture of the skull or limb, but was unconscious, at intervals, for two or three days, and after three months treatment at the hospital was discharged, with his wounds apparently healed, although he complained of a pain in his back, which has continued ever since, according to his statement, and still continues, after the lapse of four years, being worse in damp weather, often accompanied by sleeplessness and excessive fatigue, and preventing him from 'doing any hard or continuous work. I have carefully examined the testimony in relation to the nature and extent of the libelant's injuries to ascertain how long he had been disabled for work requiring daily bodily exertion, and whether such disability now exists and is likely to be permanent. McMorran's own representation of his condition must be taken with great caution, being unsupported by other testimony. The three medical gentlemen, and they were the only witnesses produced by the libelant, who were examined in support of the theory of an existing and permanent disability, could not discover any symptoms of chronic debility or so}:eness. The wounds caused by ,the cuts had entirely hewed, and there were no superficial evidences of spinal trouble. These witnesses speak in answer to hypothetical questions, and neither confirm nor contradict the testimony of the libelant. 'The expert surgical testimony on the other side is almost conclusive that the Jibelant was not, as late as the month of November, 1885, "-more than two and a half years subsequent to the accident,-perma'nently disabled. On a physical examination no objective symptoms of disease or soreness of the spine or back were discovered, and he was subto experimenta1 tests which would have revealed any latent soreness or disease of those parts, had either existed. . I am led' to the conclusion', therefore, that while the testimony does not sustain the finding of the commissioner to its fullest extent, there is still sufficient proof that the libelant could not have so far recovered from his hurts, on leaving the hospital, as to be able at once to return to his work, or to perform any hard and protracted labor. He must have been disabled for a considerable length of time, and it is only just that he should be allowed a liberal compensation for the loss of wages which he might have earned, and of which he was deprived by the negligence of' the claimants. "But, aside from McMorran's own testimony, there is nothing in the depositions which indicates that at the time they were taken-nearly three years after the accident-he was suffering from the effects of his fall; and, as the commissioner has not given any reason

THE GEORGIA..

637

for his judgment, or stated the mode of calculation by which he assessed the damages, I am unable to con:f;irm the report unconditionally. Twelve hundred dollars will be an ample allowance for the loss of the libelant during the time he was actually disabled, and with his consent a decree will be entered for that amount, with costs; otherwise, the third exception will be sustained.

THE GEORGIA. l NEGUS

v.

THE GEORGIA.

(Disfrict (Jourt, E. D. New York. November II, 1887.)
JrLuuTIME LmNB-CHRONOHETER-FoREIGN SHIP.

A ship's chronometer is one of the necessities of the vessel. When, therefore, a foreign ship is supplied with a chronometer upon the credit of the vessel, and by direction of the master, a maritime lien on the ship is created for the value of the chronometer.

Goodrich, Deady & Goodrich, for libelant. Benedict, Taft & Benedict, for libelant in another suit.
BENEDICT, J. This is a proceeding in rem to enforce a lien upon the .brig Georgia for the sum due the libelant for the use of a chronometer used by the master of the brig during about a yp.ar. The only point made in defense is that no lien exists for such a demand, because it devolves upon the master of a vessel to provide himself with a chronometer, as one of the tools of his trade. In other words, that a chronometer is one of the necessities of the master of the ship, and not one of the necessities of the ship. There is no evidence tending to show that a chronometer is one of the tools of the master's trade, or that it is cnstomary for the master to provide the chronometer. In the absence of such evidence, I do not see how the libelant's claim for a lien can be denied. Clearly, the ship cannot go to sea without a chronometer. As matter of fact, the presence of a chronometer on board is an absolute necessity, to enable the ship to perform her voyage. In this instance the chronometer was procured by the master on the credit of the vessel, as the receipt he gave shows, and his authority cannot be denied. It is, then, the ordinary case of a necessity of the ship supplied upon the credit of the ship by direction of the master, the ship being foreign. Upon such facts the maritime law declares the ship bound. Let the libelant have a decree.
1 Reported

by Edward G. Benedict, Esq., of the .New York bar.