Under the maritime law, the master of the ship has plenary powers as the agent and representative of the owners. He selects, hires and discharges the seamen at his pleasure. He has supreme control of the management and navigation of the vessel, with which even the owners themselves, if present, cannot interfere. He determines all matters relating to the discipline of the crew, and the kind of punishment to be inflicted for disobedience of orders, or for a breach of maritime regulations, and when and by what instrumentality it shall be administered. While on ship-board his word is law, and he is, in fact as well as in name, the "master" of the vessel. He may, when necessary, purchase supplies upon the credit of the ship, and in certain emergencies hypothecate and even sell it without the knowledge or express assent of the owners.
Having clothed the master with such extraordinary powers, it is not surprising to find that, in discussing the extent of the owner's liability for his acts, the writers upon maritime law have asserted that the master is bound to the owners, and he and they to everyone who may be affected by his acts, for his skill and attention in the management of the ship. It is not sufficient that he exercises his best judgment. He is bound to show that he possessed and exercised the judgment of a good commander, with reasonable skill, care, prudence and fidelity. (Curtiss, p. 195.) By the general maritime law of continental Europe, the responsibility of the owners for the master's obligations, exdelicto, might be limited to their interest *Page 15 in the vessel and freight, if they so elected; but neither the civil law nor the common law of England recognized any such limitation, and it has, therefore, been said that the owners are personally liable for all the obligations which the master incurs, within the scope of his authority as master, to their full extent, whether arising ex contractu or ex delicto. (Id. pp. 198, 199; Parsons on Maritime Law, 94, 391.)
In one case, the Admiralty Court held that the owners were answerable for torts committed by the captains they employed, under a general principle of the maritime law, and not by virtue of any special contract. (Dean v. Angus, Bee. 375.)
While all these authorities assert the liability of the owners in terms so general and so broad as to include the tortious acts of the master towards the members of the crew, yet it is evident that attention was not specially directed to this class of cases, and we do not, therefore, feel at liberty to hold that any different rule is to be adopted in ascertaining and measuring that liability than has been applied by this court where the servant has sought to render his employer responsible for injuries received in other than maritime employments. The ship-master and the crew were all engaged in a common undertaking, and unless the acts of which the plaintiff complains were in some form a violation of the obligations which the defendants assumed as a part of the contract of hiring, or of some positive duty imposed upon them by law, he cannot be permitted to maintain this action. (Crispin v. Babbitt,81 N.Y. 516; Loughlin v. State, 105 id. 159.) There is, however, an exception to this rule, which is noted by Wood in his treatise on Master and Servant, at page 864 (§ 438): "If he (the master) places a servant in a position of authority over other servants, and makes the inferior servants subject to the direction and control of the superior, while he is not chargeable for the consequences of directions given by such superior servant within the scope of the general employment, yet there is no reason why he should not be chargeable to a co-servant for an abuse of such authority as much as he would be to a stranger." The gravamen of the plaintiff's cause of action is *Page 16 that he was cruelly and unnecessarily beaten by the ship-master for an excusable refusal to obey his orders, and it may, therefore, well be questioned whether the case is not brought within the exception here referred to.
But we think the liability of the defendants in this case rests upon a much broader ground. If the plaintiff's testimony is worthy of belief, his injuries were the direct result of their failure to observe their contract obligations and duties towards him.
The mariner's contract of hire is sui generis. It differs in many essential respects from the ordinary contract for service upon land. When once undertaken by a seaman he cannot withdraw from it at his pleasure. If he leaves the service without good cause he may be branded as a deserter and a criminal, and may be arrested by his employers without process or warrant and forcibly compelled to return to the vessel and complete his engagement for service. He may be put in irons or confined in jail in a foreign country, or instantly subjected to corporal punishment, if, in the judgment of his employers, he is remiss in his duty or disobedient to his superiors, or guilty of any conduct subversive of the good order or discipline of the ship.
As stated by an eminent American writer upon the subject: "It is the only form of service stipulated to be rendered by a freeman of full age, known to the common law, in which the employer by his own act can directly inflict a punishment on the employed, for neglect of duty or breach of obligation." (Curtiss, p. 12.) These manifestly harsh and oppressive features of the service, as well as other hardships and exigencies frequently encountered in it, gave rise to the imposition of correlative duties and obligations upon the part of the shipowners. We, therefore, find that some of the most important stipulations in the seaman's contract for hire are not usually contained in the shipping articles at all, but are dependent upon the principles of the maritime law.
They are none the less obligatory upon the parties than if they had been inserted in the written compact between them. *Page 17 One of these guarantees upon the part of the owners, which is of supreme moment to the mariner, on account of his defenseless and perilous position upon the high seas, is that he shall have good treatment and be protected from unnecessary violence. Special emphasis is placed upon this right in all the elementary works on the subject. Parsons, in his Maritime Law (Vol. 1, p. 476), in speaking of the correlative obligations of the owners and the seaman, says that the former stipulate in the contract of hiring "for good treatment and the due payment of wages." In Abbott on Shipping (p. 174), it is said: "The duties of the mariners and the master are reciprocal; from the former are due obedience and respect, from the latter protection and good treatment."
George Ticknor Curtiss, in his treatise on the Rights and Duties of Merchant Seamen, takes up, seriatim, the general obligations of the parties to the mariner's contract, and which may, or may not, be included in their written agreement, saying (p. 19): "Although the articles are wholly silent upon such points, law and reason will imply certain engagements on the part of the master and owners, which are equally as imperative as those expressed in writing." He then enumerates eight different obligations entered into by the owners as a part of the contract of hiring, the fifth of which is stated in these words (p. 26): "It is further a part of the general obligations of the contract that the mariner shall be treated with decency and humanity by the master and the officers, and by his shipmates," and he concludes the enumeration by saying (p. 28): "These are some of the important obligations assumed by the owner and master in the hiring of mariners."
In 1 Kay on Shipmasters and Seamen it is stated (pp. 574, 575): "The crew have rights which are as carefully defined and enforced by law as their duties. Irrespective of statute, the obedience and skill of the seaman entitle them to remuneration, protection, humane and just treatment, proper food, if it is procurable, and care in the event of sickness."
The 16th admiralty rule of the U.S. Supreme Court, provides that in all suits for assault and battery, or beating, the *Page 18 suit must be in personam only; and Benedict in his Admiralty Practice, commenting on this rule (§ 309) says: "This is, undoubtedly, true where the action is technically for the assault and battery as a mere tort; but it would seem on principle, that if the action be brought on the contract, as for not carrying the passenger safely and without injury, or for not treating with proper kindness a passenger or seaman, an assault or beating, being the gravamen of the breach, the suit may be in rem against the vessel."
No distinction is here made between the ill treatment of a passenger and of a seaman. In the very early case of "The Ruckers" (4 Rob. Ad. Rep. 60) it was sought to maintain a libel against the ship for an assault by the master upon a passenger on the high seas, and there does not seem then to have been any precedent for such an action; but as it was conceded that the proceeding would have been upheld if it had been the case of an assault upon a seaman, it was insisted that a passenger was entitled to the same remedy, and it was so held by Sir William Scott.
The inference from the case is, that the seaman's right to reimbursement for injuries of this character antedates, in point of judicial recognition, that of the passenger.
In the case of Rice v. The Polly and Kitty (2 Peters 420) the seamen were cruelly beaten by the mate. They appealed to the captain for protection, which he denied them and punished them for complaining. They then left the service, and it was held that the contract of hiring was broken in consequence of their cruel treatment, and that they could recover their full wages.
Judge PETERS, a high authority upon this branch of the law, says (p. 421): "I would observe here, as I did lately upon another occasion, that although the sole contract mentioned in these articles (i.e. the shipping articles) on the part of the master or owner, is the payment of wages; yet law and reason will imply other obligations, such as that the vessel should be seaworthy and properly fitted for navigation; that the mariners shall be supplied with sufficient meat and drink; *Page 19 and that they shall be treated with, at least, decent humanity." In a foot note it is stated that "the claims of seamen to wages, under circumstances similar to those mentioned in this case, for the whole voyage have been frequently allowed in the District Court by Judge PETERS, and that there are many cases in the English books, in which the principles, on which such claims are founded, have been recognized."
In Ward v. Ames (9 Johns. 138), our own courts held that, if during a voyage a seaman is compelled to leave the ship on account of ill usage, or cruel treatment by the master, or through his agency and for fear of his personal safety, the contract is broken and it is not a case of voluntary desertion; and he is entitled to recover his wages for the whole voyage.
To the same effect is Sherwood v. McIntosh (1 Ware, 109), where it is said (p. 115): "The seaman engages for the faithful performance of the services, for which he contracted; the master, on his part, engages to treat his men with humanity; and this obligation of the master is not less imperative, because masters do not think it necessary to insert any stipulations in the contract, which may look like restrictions on their part."
There are many other cases in admiralty holding a like doctrine. (The Minerva, 1 Hagg Adm. 347; Limland v.Stephens, 3 Esp. 269; Edward v. Trevellick, 4 Ellis B. 59; Steele v. Thacher, 1 Ware, 91; Magee v. Ship Moss, Gilpin, 228; Relf v. Ship Maria, 1 Pet. Adm. 186; TheAmerica, Blatchf. H. Adm. 185.)
These decisions all proceed upon the ground that cruel treatment by the shipmaster is a breach of the contract of hiring on the part of the owners and relieves the seaman of all further obligation to perform on his part.
In Croucher v. Oakman (3 Allen, 185), the Supreme Court of Massachusetts held that in an action of contract by the mate against the owners of the vessel to recover the damages sustained from the unlawful act of the master in wounding and discharging him in a foreign port, while in prosecution of a voyage upon shipping articles signed by him, the plaintiff *Page 20 may recover such damages as will compensate him for the injury sustained by him in consequence of the breach of the contract. BIGELOW, Ch. J., says (p. 187): "The principle upon which owners are liable in such cases is this: The defendants, as owners of the vessel, contracted with the plaintiff for the performing by him of the duties of mate for a specified voyage. It was their contract, although made in the name of the master. He was their agent to make and execute it. If it was broken by the wrongful act of their authorized agent, they are bound to make compensation to the party injured."
In Hunt v. Colburn (1 Sprague's Dec. 215), it was held that if a seaman is wrongfully left in a foreign port by the master, the owners are liable and the measure of damages is an indemnity for all that he has lost and suffered, including the value of his clothing detained by the master.
The underlying and controlling principle of all these cases is that the sailor is entitled to kind and humane treatment, and to protection from cruelty and acts of oppression on the part of his associates; that a stipulation of that kind is as much a part of the contract of hiring as that he shall have sufficient and suitable food and proper care, and medical attendance in case of sickness, and shall be cured at the expense of the ship owners, without any deduction for loss of services, and the various other provisions which the just spirit of the maritime law has imported into the contract for services in such cases and the observance of which has always been tenaciously insisted upon whenever these contracts have been the subject of judicial scrutiny.
The policy of the law in this respect had become so firmly fixed that it was held by Judge STORY, in Harden v. Gorden (2 Mason, 541), that an express written agreement on the part of the seamen to pay for medical advice and medicines was void, and it is intimated that no stipulation contrary to the provisions of the maritime law, to the injury of the seamen, will be allowed to stand, unless supported by an adequate additional compensation, the learned judge using the expression, *Page 21 so often quoted, that "they are emphatically the wards of the admiralty."
It does not follow that for injuries received while subjected to a mode of discipline, authorized by the maritime law, the seaman can maintain an action against the owners.
The authority of the master over the crew has been likened to that of a parent over his child, or a teacher over his pupils, or a master over his apprentice. Like them, he must, in the first instance, necessarily be the judge to determine when resort shall be had to corrective measures. The proper discipline of the vessel is indispensable to the successful prosecution of the voyage and is just as much a part of its navigation as the skillful direction of its course, or the careful management of its machinery or apparatus. For an error of judgment in determining when punishment shall be inflicted, or in the selection of the means of chastisement, so long as it is one which is approved by the Maritime Code, or in the application of the means thus chosen, no recovery can be had. But the present case is destitute of any such feature. It is conceded in the prevailing opinion that what the master did was not in the exercise of any disciplinary authority, but was an unprovoked, unjustifiable and brutal assault by him upon the plaintiff. While acting as the representative of the defendants in the discharge of the duty which they owed to the plaintiff to protect him from ill treatment, and clothed with the absolute power to make his authority effective, he deliberately violated the agreement which they had made with the plaintiff.
The complaint alleges a cause of action of this character, for it sets out the contract of hiring, the cruel and inhuman treatment of the master, and the consequent damage to the plaintiff; and we cannot distinguish the case in principle from that of Scarff v. Metcalf (107 N.Y. 211), where it was held that in the performance of an obligation imposed by maritime law upon the owners of the vessel, the master stands as the agent and representative of the owners, and his negligence is theirs. It is but a statement in another form of the rule of liability *Page 22 carefully preserved by this court in Crispin v. Babbitt, where it is declared that the exemption of the employer from responsibility to his servant for the wrongful acts of a co-servant, does not include claims for injuries which are the result of the act of the employer himself, or of a breach by him of some term, either express or implied, of the contract of service or of his duty to his injured servant.
The responsibility of the shipowners does not, therefore, end when they have manned the vessel with officers and a crew, who, they have every reason to believe, are competent and skillful, and supplied it with all the provisions and equipments which the maritime law or regulations may require.
They may have placed on board a supply of food abundant in quantity and unexceptional in quality, and yet if the master, without good cause, should refuse to allow a sailor to partake of it until starvation or exhaustion or other bodily injury resulted, it would not, we think, be contended that the owners were discharged from liability. The vessel may have a suitable medicine chest, and sufficient instructions for its use, and the master might unreasonably deny to a sick seaman the administration of the proper remedies, but the owners would be liable for the resulting injury. A master might compel a disabled sailor to do duty continuously without rest or sleep until overcome, and perhaps permanently injured by fatigue, and the act would be deemed to be that of the owners, as much so as if they had been personally present and directed it.
So we might go through the entire list of the shipowners' obligations to the sailor, and if he has been deprived of the benefit of any of them by the act of the master the owners must bear the responsibility. In such cases the motive with which an obligation is broken is not material.
We have been unable to find any reported case where a different measure of liability for a seaman's injuries has been applied.
There are numerous decisions holding that the shipowners are not liable for the negligent acts of the master or other *Page 23 officers in the navigation of the ship, which involve no breach of the contract obligation or duties of the owners. Benson v.Goodwin (147 Mass. 237), and The City of Alexandria (17 Fed. Rep. 390), are typical of this class. In the former case the sailor was injured by the carelessness of the mate in allowing a part of the apparatus of the ship to fall upon him while they were attempting to weigh anchor under the orders of the captain, and in the latter case the cook fell through a hatchway which had been negligently left open by someone in the ship's employ, and of which the steward had failed to give him notice.
Such authorities have no relevancy or application to a case where, in consequence of the act, default or negligence of the shipmaster, the terms of the contract under which the seaman entered the service have been broken. In other words, the negligence of the shipmaster in doing an act pertaining to the navigation of the ship, and his negligence in performing the stipulations in the contract of his principals, or a duty imposed upon them by law, differ widely in their legal effect. It may well be that for the one the mariner has no remedy against his employer. It was a risk which he impliedly assumed when he entered the service. But for the other the shipowners have bound themselves to be responsible. If they entrust the discharge of their obligations to another they guarantee his fidelity, and his default becomes their default under the well settled rules of law establishing the liability of principals for the acts and omissions of their agents. Two decisions of the Supreme Court of Wisconsin have been referred to as embodying conflicting views upon the question here involved. (Thompson v. Hermann,47 Wis. 602; Mathews v. Case, 61 id. 491.) But upon examination it will be found that they are in harmony and support the conclusion we have reached. They also very clearly illustrate the vital distinction which separates the cases where the owners must respond for the consequences of the negligent or wrongful conduct of the master from the cases where they are exempt from such liability. In the 47th Wis. the master *Page 24 wantonly and recklessly exposed the sailor against his protest to an unnecessary danger, in consequence of which he was injured. It was a denial to the seaman of that measure of protection which, under the contract of service, he had a right to enjoy, and the owners were made liable.
In the 61st Wis. the master was at the wheel steering the vessel, and negligently or unskillfully steered it lengthwise into the trough of the sea, causing large quantities of water to flow over the deck, washing the yawl boat against the mate and severely injuring him. It was held that the cause of the injury was the negligence of a co-employe, for which the owners were not responsible.
The ill treatment of the plaintiff by the master was not successfully controverted upon the trial. A serious and permanent physical injury has been the result. The verdict was evidently not controlled by sympathy or prejudice, and the charge of the learned judge contained no error of which the defendants can justly complain.
The judgment should, therefore, be affirmed, with costs.
All concur with GRAY, J., except FINCH, O'BRIEN and MAYNARD, JJ., dissenting.
Judgment reversed.