Dissenting opinion by
Greene, Associate Justice.This is a motion by the appellant, respondent in the court below, to introduce new proofs in this court. My views, as to the jurisdiction and course of this court as an appellate court in admiralty causes under the organic act, with special reference as to whether under any circumstances new proofs are admissible here, have been sufficiently set forth in an opinion heretofore filed upon the motion of appellee to strike from the files certain depositions. To decide that motion, however, I did not deem it necessary to inquire or give an opinion, whether the court should in the exercise of this jurisdiction receive all new proof competent and relevant that may be offered, or should require upon production of new proofs a preliminary showing of good cause for the first appearance of them here. The latter question seems raised by this motion, and to it I shall address what further I have to say.
Since the motion was made, I have given the subject considerable thought and what examination I could with the limited stock of authorities at command, and my conclusions are: First, that whatever may be the laws and rules peculiar to American jurisprudence in force regulating practice in this court, there is none applicable which restricts a party in this court, to other or less proof than he would have aright to produce under the pure practice of. the civil law; and, second, that at the civil law on appeals, new proofs are adducible with the same freedom as in the lower Court, and in the absence of any rule prescribing reasonable restrictions,’ the same liberty should obtain here.
I regret I have not been able to refresh my memory and enlarge my information by a reference to any general treatise on procedure at the civil law. But from what I have been able *400to remember and to gather from works at hand, I am much mistaken, if the true theory of appeal at the civil law be not, that every party is entitled in equity and good conscience to a just decree on the real” facts; that his pleadings and proofs are made and taken in aid, and ought not to stand in the way of this result; and that, if he has failed to get in an inferior court the equity which belongs to his real case, he is entitled to make another and a better effort to get that equity, in the court of review. Accordingly, it may be not untruly said, that the whole and very matter of dispute — not merely the matter as pleaded or proved, but the matter itself of dispute — is removed to the superior tribunal. The Court below is displaced by the Court above. The whole case — pleadings, facts, law, proceedings, all —is carried up bodily, and re-opened for fresh action throughout. But, there is doubt about the introduction of new witnesses ad libitum.
In my opinion, the motion should be allowed-
Preliminarily, in this case, it is urged by appellant, that it appears from the record, that all the proceedings in the lower court were “coram non judice.” The cause is entitled, as “ In the United States District court for the Third Judicial District of Washington Territory.” The libel is addressed, “To the Honorable O. Jacobs, Judge of the District court of the United States for the Third Judicial District of Washington Territory.” In the recorded proceedings in the court below, that court is designated and described as the “District court of the United States.”
A District court of this Territory cannot properly be entitled a court of the United States. It is simply the District court of its proper District, and should not be otherwise entitled. But the objection seems to us of little moment. Looking to their origin alone, rather than to their name and functions given in the originating act, there is color for styling the District courts, courts of the United States. The prevailing practice in this Territory, from the day of their creation, has been to call them United States District courts. The respondent cannot have been prejudiced or misled by the erroneous title» *401The record comes to us certified from the proper District court. The proper court appears properly entitled in the record, if we omit to read the words “United States” and “of the United States.” Reading those words, makes a title belonging to no court in this Territory. Those words we, therefore, reject as surplusage.
This case comes on to be heard, agreebly to the opinion of the majority of the court, heretofore announced,'upon the testimony received in the court below, and no other. Upon that testimony, we base our conclusions in the cause.
The libel was filed in the Third District, against the master and first and second mates of the bark Sampson, to recover damages for injuries to the person of libelant, a seaman in the service of that bark. The first mate was not served with process. The master and second mate answered severally. The District court decreed the sum of twenty-five hundred dollars damages, in favor of libelant, against both the second 'mate and master. The master alone appeals to this court.
The injuries, for which the libelant claims damages, were immediately inflicted by the first and second mate, on board the bark, at sea.
The vessel is two hundred and forty feet long. She has a quarter deck raised about seven feet above the main deck. The first step to ascend from the main deck to the quarter deck is about one hundred and twenty feet aft of the fore-rigging. The cabin is under the quarter deck. On the main deck, aft of the fore-rigging, is the carpenter’s shop.
It was daylight in the morning, and the captain’s watch on deck, when an altercation arose between the first mate, one Dowling, and the libellant, Griffin. Griffin and Dowling were at the fore-rigging; the second mate was in the cabin, at breakfast; the captain was on the quarter deck.
The first mate found fault with a racking put on by libel-ant, and, irritated by retorts of the latter, struck him on the mouth and attempted to kick him. Griffin drew a knife, and threatened to cut the mate, if he did that again. Dowling, say*402ing he would shoot libelant, ran aft, turned into the carpenter’s shop, and presently re-appeared with an iron bar, with which, upraised, he advanced upon libelant, saying he would brain him if he did not put up the knife. At this juncture, the captain, having become aware of the situation, suddenly arrived between the mate and man, and ordered the latter to put up his knife, the former to put down the bar. Each hesitated to obey. The orders were repeated. Then the mate threw the bar down, picked it up again and laid it on the waterways, and, with an exclamation that he would shoot libelant, hasted to the cabin for a revolver. The libelant put up his knife.
Soon the mate returned, revolver in hand, and with him came the second mate. Coming up to libelant, the second mate seized him by the clothing, threw him to the deck, face downwards, drew the knife from its sheath and plunged it in his back; while the first mate, handling the pistol, struck the .fallen man a violent blow with that on the head.
It does not appear that the cut was serious. The blow on rthe head fractured the skull, has already resulted in partial paralysis, and may yet issue, in death.
No misbehavior of the man subsequent to the first affray, provoked these last acts of violence. To prevent them, the'master did nothing but cry to the mates to stop.
Such, -briefly, as shown by the evidence, are the main, substantial facts.
The testimony is contradictory as to the acts and locality of the master, whether he stayed by and talked with libelant or moved away from him, while the mate was procuring the pistol. We incline to think the evidence preponderates to show that he walked aft, and, when some twenty or thirty steps away from libelant, was met and passed by the mates proceeding to their attack. But, in our view of the master’s duty, we do not, under all the circumstances, deem his exact whereabouts material.
The allegations of the libel sufficiently correspond with, :and well propound the state of facts actually proved.
*403Sucli being the case, appellant contends that he is not to be charged for these wrongful acts of the officers of his ship; and relies for his exoneration upon that doctrine of the law of master and servant, which acquits the master from liability for acts of the servant, outside of his service, or, in some cases, when disobedient to express orders!
Were that familiar doctrine to be taken as applicable to and decisive of this case, we would perhaps have little hesitation in applying it to relieve the appellant. But the simple relation of master and servant by no means expresses the complex connection between a shipmaster and his mates. His mates are a part of his crew. His crew are aboard to enable him to maintain and make profitable the business of the ship. And his full relation to his mates can only be apprehended, by considering at the same time his concurrent relations to all that is under his charge. Now, if we examine what the master’s relation to his mates and responsibility for their acts are —first, with reference to the general care that he owes to all that is-committed to him, and, secondly, with regard specially to the particular care he owes to each seaman — we shall discover, that in either view, the master of the Sampson ought to- be held liable for the injuries to his seaman, the libelant.
1. The relation of master to crew — mates included — has., by Casaregis (Disc. 136 n., 14), and upon his authority by Valin (Com. tome 1, 449), and Lord Tenterden (Abbott Shipping, 136), and upon the authority of the English judge, by a number of other judges, been likened to that of parent to child, of teacher to pupils, and of head of family to domestic or other servants. But these comparisons, though serving well enough for illustrations, or even analogy, in particular cases, by no means well define the exact relation of master and seaman, which really cannot be gathered from any partial aspect furnished by a particular array of facts in any one case, but must be ascertained by generalization from the mass of authoritative text and decisions. What, thus ascertained, is the position of the master, we shall with sufficient precision for our present purpose, endeavor to define.
*404The master occupies a peculiar station of trust. His trust is the care of his vessel, cargo, crew and passengers, and of the promotion and transaction of his vessel’s business. For the purpose of, and as essential to, the discharge of this trust, adequate authority vests in him over all his domain of care. The care is the source and reason of the authority. The authority 'is properly present only to- make effective the care. Whenever, therefore, there is a dereliction in the care incumbent on the master, and a consequent failure by him to exercise the authority which that care if active would have summoned to its aid, .as well as whenever the authority exercised is called into exertion by evil intent or wantonness and not by the supervising ■care, or transgresses the just bounds which a faithful care should have prescribed as its range, the master is liable.
One incidental subject of this care, opening a field for the exercise of this authority, is the good order necessary for the maintenance and fruitful issue of the vessel’s business. Without peace aboard ship, the master’s trust would be set at naught and the ventures of merchants fail.
Had the master, in the case at bar, after he once became aware of the affray between the first mate and Griffin, been rightly mindful of what was going on around him, had he been merely as observant as an unimplicated casual spectator, and still more had he been alert with proper care and authority, he could not have failed to notice, what every.other witness of the scene, whose testimony we have, did notice, the disposition of the mate to continue the affray, and could not have failed effectually to interfere to secure the order of the ship. He did not exercise the care he owed. Failing to exercise the care, he naturally failed to exert the just authority which that care would fitly have called to its support. His neglect to exercise any such authority as the occasion demanded from him, and as would have operated to restrain the mates completely, is equivalent to a positive refusal to interfere any further than he did in fact interfere effectually, and to an express sanction of the course of the mates. The consequence to the libelant is the same as if the master had peremptorily ordered the mates to do *405what they did. It is but just that the consequence to the master himself should be the same. This court proceeding, as it does, on principles of. natural justice, must hold the master liable.
2. But should we leave this general view of the case, and look only at the care due from the master to the man before the mast, as affecting the liability of the master for the acts of the mates, we should arrive at the same goal. In the shipping-articles are impliedly embraced an engagement of obedience on the one part and of protection on the other. The sailor, in return for his engagement of prompt and entire submission to the order and discipline of the ship, is entitled to the protection, which the exercise of a reasonable vigilance on the part of the master for preserving that order and discipline will afford.
Hence, perhaps, arises the comparison of a master to a parent. In the former, as in the latter, authority and care unite. “It is his [the master’s] duty to watch over them [the seamen] with paternal attention, so long as they belong to the ship,” says Story, J. (U. S. vs. Ruggles, 5 Mason’s, 192.) And again: “The master has the supreme authority on board of his ship, and has, moreover, a sort of parental responsibility and duty devolved upon him for the due exercise of it,” (2 Sumner, 1, 11); and the learned judge goes on to declare as part of this parental duty, that if he is present, he is bound to interfere and restrain chastisement by subordinate officers, if improper in nature or character. “The master is responsible for any punishment inflicted on board the vessel, unless in his absence, or when he is prevented by force from interfering;” and, “If he had reason to suppose that such a thing might be done, and did not take fains to he f resent and interfere, he will be liable.” (Dana’s Seaman’s Manual, page 194; Pritchard’s Adm. Dig. [Pa. Ed.] page 179.)
The master is conclusively presumed, as against himself, to be competent. In this competency, is included an at least ordinary knowledge of human nature, an at least ordinary quickness to observe what may be passing in his presence, and an at least ordinary prudence and ingenuity to avert a threatened *406breach of discipline. All these faculties he was bound, under the shipping contract, to use for the protection of the libelant. It is impossible to believe, upon the evidence, that he did not have occasion to use them to prevent the injuries propounded in the libel, or that, having the occasion, he did use them. The presumption being that he possessed them, and the evidence showing that there was occasion but failure to use them, the just inference is that he recklessly omitted to give the libelant' the benefit of the use of them. Such reckless omission amounts to a consent to the consequences of his omission. Those consequences are, as the evidence discloses, the injuries for which the Court below has given damages against him.
The behavior of the master, being construed acquiescence in law, is well propounded in the libel as “standing a witness" to the wrongs, “without in any manner endeavoring to prevent" them; and as “countenancing, encouraging," aiding and abetting the mates.
' At the same time, by his conduct, he legally adopted the mates’ acts as his own; and, in correct legal phrase, what they did, he may be said to have done himself with them. So that we see no objection to the libel, from its containing both forms of description.
We do not think it necessary to discuss critically the testimony of the witnesses Griffin and Meagher. We consider the liability of the master would be clearly established, were all their testimony expunged from the record.
The district judge correctly refused to permit the master to prove as matter for his own exculpation, what passed in the cabin between him and the first mate, after the affray. Whatever it was, it was certainly no part of the res gestae, and we can conceive of no other ground, nor is any other ground alleged,' for its admission.
The damages awarded by the District court seem to be none too large. The libelant, not having appealed, cannot ask for an increase. They will stand as our finding.
We take pleasure in acknowledging the assistance, which *407we have received from the faithful and exhaustive efforts of the advocates in this cause.
Let a decree be entered for the libelant against the master, for $2,500, and costs.