. MLD.J!llf". JENSEN.
505
whiclirecovery 1sIought by a bill in equity, are the same as damages in an action of libel, slander, dive1'8ion of a watercoUl'se, trespass in breaking up meadow· or pasture land, and similar actions of tort. The former are the actual, direct, pecuniary benefits, capable of defi· nite .measurement, acquired by the wrongdoer; the latter are pri. marily the loss suffered by the injured party where the wrongdoer realizes no pecuniary benefits, or only such as are indirect, indefinite, or rest in speculation, compromise, or arbitrary adjustment. For these reasons I am of opinion that this cause of action survives, and that the motion to dismiss should be denied. Motion denied. BOLDEN v. JljJNSENet aL
. (DIstrict Court, D; Washington,
October 28,1895.1
L
FEDERAL COURTS-ADMIRALTY JURISDICTION-INJURIES TO SEAMEN ON FOB EIGN SHIPS.
2.
DAMAGES FOR PERSONAL INJURIES-CRUELTY TO SEAMEN.
Eourthousand five hundred dollars were awarded to a seaman for personal injuries occasioned by torture, in punishment of insolent laJ?-guage. whereby the. circulation of blood in his bands was arrested, causmg the skin and flesh 'to blister and decay, ·and so affecting the cords as to cause his fingers to remain permanently bent, thus disabling him from performIng the labors of a sailor.
This was a libel by Louis Bolden against S. Jensen and J. M. McLean to recover damages for cruelty and personal injuries inDefendants, flicted upon him as a seaman upon a Chilian having been taken in custody under a warrant of arrest issued pursuant to admiralty rule 2, moved the court to quash the same and discharge them, and exonerate their sureties. This motion was heretofore denied. 69 Fed. 745. The cause is now heard upon the merits. A. R. Coleman, for libelant. John B. Allen, for defendants. HANFORD, District Judge. The libelant, wh'o Is a North Carolina negro, came to Port Townsend from Valparaiso, as a member of the crew of the Chilian ship Atacama. On account of injury to his wrists and hands, he is in a most deplorable condition. The actual physical condition of those members, and the uncontradicted of the physicians who have examined and treated him, proves that he has been subjected to torture, by having both wrists so tightly bound by handcuffs or cords as to arrest circulation for such length of time as to produce what the doctors term "strangulati@./' ·The skin and flesh of both palms have been blistered, caus-
FEDERALHEP08TER,yol;
70.·
slUn: !ofhla: knridkles;has, by severe bruising or chafing,' each wrist joibt 'there ,are deep' scars;. completely encl:rchng. the wrists. The cords: are so affected tb:athis'nngers remain, bent, and ·the testimony:shows that· some oftMm, at least, can 'fieverbe straightened. ' Reis probably permanently' disabled from' any labor requiring hhn to grasp rope8bI' implements, so that it will be unsafe for>hitnto ever attempt to perform the duties of a·sailor. BywhonFandin what manner were these injufiesinfiicted? These are the principal qa'estions'whicb:I must determine from the evidence. The libelant has testified that his injuries' 'are the result of his being triced up in the ship, during the voyage, by the defendants. Both of the defendants and other witnesses whom they have produced have 'given testimony contradicting the libelant's versi,on .of they deny that he was triced up or that his wrists werelJound' in any way to cause such injury, but they have failedto·offer any testimony whatever explaining injuries were inflicted. . I nothing how or in wha.t, manner in opposition,to ,the libelant's plain sworn statement,: except the argument of the, defendants' attorney, who advances, the theory that the injuries were self-inflicted by' the libelant. This theory is built mainly upon the lack of evidence to prove that' the defendants were l1ctuated by any spirit of malevolence against the libelant, and the evidence tending to prove that he received humane treatment at their hands after the infliction,of the injuries, and the negative testimony of th,e defendants and the second mate and the carpenter of the ship. The uncontradietedtestimony proves that, after the ship sailed from. Valparaiso, ,the first mate was taken ill, and, in consequence, was left at the port of Iquiqui. at which place the McLean and his wife came on board as passengers. On arrival at Port McLean represented himself to the Chilian consul and others as being the agent of the owner of the vessel, and transacted, bUsiness as such agent, and declared 'his purpose to have the libelant imprisoned until the vessel should return to Chili, and then returned in the ship, to be dealt with according to Chilian laws, for misconduct during the voyage. At different times during the early part of the voyage, the libelant disputed with the defendant Jensen,who was the nominal master of the ship, and the second mate, and he was considered by them to be inklolent and dangefQu,s. These occurrences c\Ilminated one afternoon, when the libelant was at work on the fore topmast yard; and, being sharply and roughly reprov:ed by the second mate for dilatoriness in his work, he answereq jnsuch a way as to bring on a quarJ,'el. .After cursing each other aloft, the seCond mate descended to the deck, followed by the libelant; and; there, after 8J sheath knife, which was. the only weapon the libelant: had posses. sion of, had been thrown; aside by-:him,.or .taken from him by McLean, the. two engaged in a fight, in whieh the second mate was getting worsted, whell Oapt. Jensen came to his rescue with a' be-
v.
507
laying pin. While the negro had tb,e second mate down upon the deck, and was striking him with· his fist, the captain, .who is a large, powerful man, seized him by tM shirt collar with his left hand, endeavored to, if he did not actually, strike him with the then, with the help of McLean, led him aft to the cabin, put him in irons, and shut him up in a small room, where he was kept in that fix until the next day. The negro's description of the manner of his imprisonment is to the that, when the captain interfered in the fight, he was struck three heavy blows with the pinon the back of his neck and head; that, in the small room off the cabin, his wrists were hand-cuffed behind his back, a rope was rove through the handcuffs, or a connecting link, and three turns of it were taken around his neck, and it was then passed through the handcuffs or link, and then to a ringbolt in the ceiling or wall of the room, and made fast, so that his position was such as to compel him to keep his head drawn backward, and to stand on his toes in order to relieve his arms from the pain of being drawn up behind his back, and he was kept in that. position, without .relief and without water, until nearly noon of the following day, during all of which time he was in terrible pain. The vessel was at that time in the tropics, and the room in which he was shut up was close and hot. He called and begged for water. to drink, but none was given to him. When he was finally relieved, his hands were swollen and stinking. The second mate, a witness for the defendants, has testified that the negro did call for .water while the witness was at supper, and that he arose from .the table, and gave the negro water to drink. In this he is contradicted by the carpente),', also a witness for the defendants, who states that he ate supper with the second mate, and that that ofncer did not go from the table to answer any call of the negro. The .defendants and their witnesses testify that the negro spent the whole. night howling, cursing, threatening, and striking his head and body violently against the wall of the room, and surging to free himself from the irons and rope which held him. They have introduced, as exhibits, three ankle irons, which they claim were used instead of the handcuffs. One of the three cannot be locked, and they are all so large when closed and locked that the libelant's hands and elbows can easily pass through. them. It is simply impossible that the wounds upon the negro's wrists could have been produced by these irons. It is claimed that the negro was secured by placing one of the anklets upon each of his arms, connecting the two with the third iron, passing. a rope through this, in front of his shoulders, and leading back in such a way as to draw the irons up so high that his arms could not be drawn out, and that the end of the. rope was then secured to a bunk in the room, leaving 18 inches of slack, so that he could stand up, sit down, or lie upon the bunk. They claim that the negro was at the time so enraged and violent that it was necessary to secure him thus, to prevent injury to himself and others In the ship. They deny most positively that the rope was used to bind his wrists, or
508
FEDERAL REPOR'J:ER,
v6l. 70.
irons or rope were placed upon him which couid many way· prevent circulation '01' cause theory is that the negrt>, in his. rage, managed in some way to. so entangle the rope about his wrists as ito cause strangulation;' but the witnesses have failed to support this theory, by testifying that they found the negro at .any time entangled in· the meshes of the rope, and to me the theory seems to be as unreasonable as the de· scription given by the defendants of the manner in which they secured the negro with such irons as they have in court. It is manifestly impossible that the negro could have been held by these irons, unless they were so suspended from his neck as to be drawn up on his arms considerably above his elbows; and in that position, of course, they could not produce wounds UPOD. his wrists, and it would be equally impossible for him to entangle his wrists in the rope leading from the irons above his elbows. Besides the improbability of the story which these defendants have attempted to palm off on the court as to their humane efforts to secure this one man in such a way as to prevent the infliction of injury upon himself, in which they failed of success, I find other inconsist· ent and manifest falsehoods in their testimony, which compel me to discredit all of their evidence. I will menti'Ononly a few in· stances. Capt. Jensen admits that, while the negro and the second mate were struggling together on the deck, he tried to' strike. the negro a hard blow with the belaying pin; and although he was withinstl'iking distance, and held the negro by the shirt collar, and is an able·bodied and powerful man, and the negro was not on guard against him, and there was nothing whatever to hinder or prevent, yet he did not strike him, but missed the object of his aim, because the two were wriggling about. He has also sworn posi· tively that Mr. McLean was only a passenger on the ship, and de· nied that he had any information or knowledge that Mr. McLean acted or claimed to be an agent of the shipowner "aftel' her arrival at Port Townsend, although it is clearly established by the testi· mony of the Chilian consul, as well as by the admission of McLean, that the consul advanced money to McLean on account of the ship; that McLean made contracts for loading the ship, and transthe busmessusually transacted by the master of a ship acted in a foreign port. McLean is a man of mature years, and was for many years a shipmaster, and has had much experience with sail· ors; .and yet he has testifled that when the fight occurred, after he had taken the knife away from the negro, he became so excited and was so nearly unconscious that he cannot tell Whether, at the time Jensen arrived upon the scene, he had hold of the negro or not, and is unable to giv-e an account of his own performances in connection with the fight; and yet he assup1ed to testify in the most positive manner to all of the acts. and m,otions of Capt. Jensen from the time he 'came out of the cabin until the negro had been secured in the room. _ He also gave as an explana· tion for his own excitement that, when the fight occurred, the of·
all
BOLDEN
p. JENSEN.
509
ficers were surrounded by 10 other mutinous sailors; and yet there is not another scintilla of evidence that any of the sailors, except the libelant, were mutinous, or made any demonstrations, or even sympathized with the libelant, who was the only negro among them; and, being particularly interrogated upon the cross-examination, he was unable to specify any sailor who had made any demonstration indicating a mutinous spirit. He has also denied posi· tively that, after arrival at Port Townsend, he gave any directions in regard to the negro, or assumed any control or authority with respect to him. In this he is contradicted by Capt. Barneson, the acting Chilian consul at Port Townsend, who has testified positively that, after the negro had been taken to the hospital, McLean required him to notify the surgeon in charge that he (McLean) would hold him responsible for the safe-keeping of the negro,as he intended to have him returned to Chili for further punishment. The personal appearances of the men indicate to me that McLean is a positive character, and inclined to be aggressive; while Jensen is of a phlegmatic temperament, and a person who probably, in the presence of such a man as McLean on board of a ship in which he claimed the rights of an owner, would be of a negative and yielding disposition. There is uncontradicted testimony in the case that, on one occasion during the voyage, McLean chastised the cook for wasting potatoes. I have no doubt he was the actual com· mander, and that Jensen filled the place of first mate. I reject the testimony of both defendants, and the second mate, and also that of the libelant's witness Michael Mazello, as un· worthy of belief. Although the evidence on the part of the libelant is in many respects unsatisfactory, enough. has been proven to convince me that the libelant was subjected to torture, and I am equally convinced that it was unnecessary for these officers to resort to extreme cruelty in dealing with a single negro. Although he may have been insolent, in their hands he was comparatively weak and helpless. At the very time when, according to their own testimony, his violence and rage was at the maximum, these two men led him the length of the ship; and, while the captain was getting the irons from the locker, the other defendant held him. The pretense that these two experienced and powerful shipmasters were afraid of this colored boy is too utterly ridiculous. Lawful punishment, within the bounds of moderation, would have suppressed any disposition on his part towards mutiny or insubordination. Although the injury was inflicted at sea, on board a foreign ship, the case is within the jurisdiction of this court; and, even if the libelant were an alien, it would be the duty of this court, which for such cases is a court of the world, to administer justice. In doing so the court exerts its powers under the law, and without any infraction of the rule of comity, as that rule has been defined in all the adjudged cases. See The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, in which Mr. Justice Bradley reviews the authorities,
1>10
FEDERAL REPORTER,
vol. 70.
and truly states :the doctrine as to jurisdiction of courts of admiralty and the rulf' ofC-oinity, as follows: "For ci-rcumstances often exist which render it inexpedient for th,ecourt' to take jurisdiction of controversies between foreigners in cases not arising in the country of the forum: as, where they are governed by the. laws of the country to which the parties belong, and there Is no difficulty in a resort to its. courts, or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of 111 treatment, are -often'in this category; and 'the consent -of their consul or minister is frequentlyrequired before the court will proceed to entertain jurisdiction; not on the that it has not jurisdiction, but that, from motives of convenience or International comity, it will use its discretion whether to exercisejurisdlctlon or not; and where the voyage is ended, or the seamen have beendlsmissed or treated with great cruelty, it will entertain jurisdiction even agajnst the _protest of the consul. This branch of the subject will be found. discussed in the following cases: The Catherina, 1 Pet.. Adm. 104, Fed. Gas. No. 13,949; The Forsoket, 1 Pet. Adm. 197, pas. No. 17,682; The St. Olott, 2 Pet; Adm. 428, Fed. Cas. No. 17,357; The Golubchick, 1 W. Rob. Adm; 143; The Nina, L. R. 2 Adm. & Eccl. 44; on appeal, L. R. 2 P. C. 38: :The Leon XIII., 8 Prob. Dlv. 121; The Havana, 1 Spr. 402, Fed. Cas. No. 6,226; The Becherdass Ambaidass, 1 Low. 569, Fed. Cas. No. 1,203; The 2 Low. 142,.Fed. Cas. No. ,10,851. . * * * although the courts w1ll'use a discretion about assuming jurisdiction of controversies between foreigners in cases ariSing beyond the territorial jurisdiction of the country to which-the courts belong, yet, where such controversies are communis juris,-that Is, where they arise under the common law, of nations,special grounds should appear to Induce the court to deny its aid to a foreign suitor'when it has jurisdiction of the ship or party charged. The existence of jurisdiction In all such cases is beyond dispute. The only question will be whether it is expedient to exercise It. See 2 Pars. Shipp. & Adm. 226, and cases cited in notes."
The libelant, however, is an American citizen, and entitled to obtain redress for h\sinjuries in a court of his own country having jurisdiction of the persons of the defendants. Considering the extent of the injuries, and the probable responsibility of the libelant himself by reason of provocation on his part, I award him as damages the sum of $4,500, and all costs, including the expenses of keeping the defendants, since they have been in the cnstody of the marshal.
. ,TB'E B. N. EMILIE·
511
. THE H. N·.EMILIE. REDMEYER et at. v. THE H. N. EMILIE (LA CHANCE, Intervener). (District Court, D.Minnesota, Fifth Division. November 20, 1895.) 1. ADMIRALTY PRAcTICE-LIBELS IN REM-INTERVENTION BY MORTGAGEE.
of resisting liens sought to be established by libelants.
A mortgagee of a vessel may intet'Vpne in a suit in rem, for the purpose
2; l!ARITIME LIENS-STATE STATUTES-SUPPLIES IN HOME PORT.
Liens given by state statutes for supplies furnished in the. home port may'be ,enforced In. the ,federal courts, and are entitled to priority over a previously recorded mortgage; but they are subject to the conditions imposed by the state statute, and must be enforced witbin tbe statutory limit of time. . .
8.
Liens tor wages' accruing subsequently to a recorded mortgage have priority; and, 'Where the mortgagor bas control of tbe vessel, the rule of laches will not be as rigidly enforced as when subsequent rights have intervened. No fixed period of time will be established as an inflexible . rule for the determination of laches, but every case must depend upon its peculiar eqUitable circumstances.
SAME;-LACHES.
John Jenswold, Jr., for libelants. Spencer & Hollembaek, for intervener· . NELSON, District Judge. On March 29, 1895, Hedley E. Redmeyer filed a libel against the schooner H. N. Emilie for work done and performed on that boat between August 1, 1891, and June 3, 1892, in a home port, and for wages on different occasions, as mate and seaman thereon, from June 4, 1892, to November, 1894. On April 30, 1895, Erick Erickson filed a libel against the same boat for wages earned thereon in August, 1892, and June, 1893. Whereupon Eugene La Chance intervenes, resisting the libels, and asks that a judgment obtained by him, duly docketed in St. Louis county, Minn., April 11, 1895, for $496.77, on a mortgage given to him by Henry J. Redmeyer, the owner of the boat, March 11, 1892, and duly recorded in the office of the collector of customs of the port of Duluth, Minn., be declared a lien and charge upon said schooner superior to the libels, and asks a decree accordingly. There can be no question as to the right of La Chance to intervene as a claimant in this manner. Schuchardt v. Babbidge, 19 How. 239. He seeks to defeat these libels on the grounds that the sums claimed for work done and performed on the boat cannot now be recovered, because the action was not commenced within a year after it accrued; and, also, that the amounts claimed for wages are stale claims, and, not having been enforced within a reasonable time, the liens are thereby lost. The rule is well settled that a lien for supplies furnished in a home port. given by a state statute, can be enforced in rem in the United States district court (The Menominie, 36 Fed. 197), and that it has priority over a previously recorded mortgage on the vessel (Clyde v. Transportation Co., 36
