This suit was filed by John B. Mallia, in behalf of his minor son, Joe L. Mallia, against the National Shipbuilding Company, hereinafter called the Shipbuilding Company, to recover for personal injuries suffered by said minor while employed aboard a vessel named Natina, the property of the Shipbuilding Company.
Plaintiff alleged that the vessel was in charge of one A. L. Dullahan, who was not qualified to discharge the duties he was undertaking to perform on account of the lack of experience in such matters; that the Natina had an incompetent crew; that the Natina was not provided with safe appliances; that the minor was inexperienced in the work he was employed to do, and had not been warned of the danger of such work. He also alleged, in substance, that the vessel was being pulled out into the river at Orange by a wire cable attached to a winch on a derrick across the river; that, when fastening the cable about a cleat on the rail of the vessel, and while acting under Dullahan's orders, his fingers were caught under the cable, and injured as a result of a negligent and unexpected order from the said Dullahan to the winchman to tighten up thereon.
The defendant answered by general demurrer and by special exception to that part of the plaintiff's petition whereby it was alleged "that the Natina was not provided with safe appliances necessary to be towed properly, and the cleat with which the cable or wire was fastened and about which the plaintiff was directed to wind or fix the cable or wire was not the proper place for said cable to be placed; and that defendant had not provided said hull with safe appliances with which to tow said hull; and that the failure of the defendant to do so proximately contributed to plaintiff's injury," because of uncertainty and indefiniteness.
The defendant also denied generally, and specially alleged:
That it was the owner of the boat Natina; "that on or about the 6th day of April, 1919, through plaintiff's father, the said John B. Mallia, whose business it was to furnish crews for vessels at the port of Galveston, it requested a crew to man the Natina, to tow her from Orange to Galveston; that plaintiff was furnished by his father as a member of the Natina's crew, and that the crew so furnished was competent and capable; that, while performing the usual and ordinary duties of a sailor aboard the Natina preparatory to the commencement of the voyage from Orange to Galveston, and while the said vessel was being pulled out into the river at Orange, the said Joe L. Mallia was injured by having or putting his hands under a cable which he was at the time handling; that his injuries grew out of the handling and operation of said vessel, in all respects seaworthy, for which no cause of action for damages could be maintained; also that plaintiff's injuries were proximately caused through his own contributory negligence by having or putting his hands under the cable after the order was given to tighten the cable."
The case was submitted to a jury upon special issues, in answer to which they found that Joe Mallia was injured in the manner as alleged by him; that at the time he was injured he was 17 years of age; that the defendant was guilty of negligence in employing him to perform the services required of him; that such negligence was the proximate cause of his injuries; that the crew of the hull Natina was not a competent and capable crew to man said vessel; that the defendant was guilty of negligence in failing to provide a competent and capable crew to man said vessel, and that such negligence was the proximate cause of the injury; that the vessel was not equipped with necessary and safe appliances for the proper handling of the same; that the failure to furnish such appliances was negligence, and that such negligence was the proximate cause of the injury complained of; that at the time of his injury Joe Mallia was acting under orders from the proper officer in charge of said vessel; that Captain Dullahan did hallo to the man operating the winch on the derrick barge to tighten up on the cable extending from the derrick barge to the Natina, and that such order of Dullahan was the proximate cause of the injury complained of; that Captain Dullahan, in the exercise of proper care, should have known that Joe Mallia had his hands under the cable after he ordered the man on the barge to tighten up on the cable; that the amount of damages to which Joe Mallia was entitled was $5,000, Upon these findings of the jury judgment was rendered for plaintiff for the sum of $5,000. From the judgment so entered, the Shipbuilding Company has appealed.
Appellant's first contention is:
"(a) A person engaged in a maritime employment cannot recover in a common-law action, according to the full indemnity rule of the common law, for personal injuries received in the performance of his duties, through the negligent and improvident order of his superior officer, but the measure of his recovery is that of the maritime law, viz. wages, maintenance, and cure. And, since the undisputed evidence shows that plaintiff, while engaged as a seaman, was injured solely because of the negligent order of a superior officer, a verdict should have been directed for defendant, the action being for common-law damages. *Page 759
"(b) While a cause of action sanctioned by the maritime law may be enforced through a common-law remedy, the well-recognized rule concerning the measure of recovery must be applied, and not the full indemnity rule of the common law."
We sustain section (b) of the foregoing contention, and hold that the measure of damages for personal injuries received by one employed on a vessel, while in the performance of his duties as such employee, by reason of the negligent and improvident order of his superior officer, and not by reason of the unseaworthiness of the vessel, if any, is that of the maritime law — that is, for wages, maintenance, and cure — and that, while a cause of action sanctioned by the maritime law may be enforced through a common-law remedy, the injured party cannot recover in a common-law action, according to the full indemnity rule of the common law. In the case of The New York, 204 F. 764, 123 C.C.A. 214, it was said:
"It is the law of the sea that vessel owners are liable for wages, maintenance, and expenses of cure of a seaman injured in the service of the ship, except as a result of his own willful misconduct. There has been gradually added to this well-defined relation, either by statute or by judicial decisions, an obligation of the owners to give the seaman indemnity for injuries resulting from unseaworthiness of the vessel or her equipment. The final utterance of the Supreme Court on the relation of seamen and owners is the case of The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760 (1902). It is inconsistent with many prior and some subsequent decisions."
It will be noted that in the above quotation it is, in substance, held that, to entitle one who is injured while engaged as a seaman on a vessel to recover indemnity for his injuries, it is incumbent on him to show that his injuries were the result of the unseaworthiness of the vessel. This being the rule as to the measure of damages, the important inquiry in the present case is: Did the injury of Joe Mallia result from the unseaworthiness of the Natina?
The jury found, upon evidence which we think sufficient to support such finding, that the crew of the vessel Natina was an incompetent one, and we are not at liberty to interfere with such finding. It is well-settled law that a vessel manned by an incompetent crew is an unseaworthy vessel. The findings of the jury, therefore, that the crew of the Natina was incompetent settles that question against the contention of appellant that she was a seaworthy vessel. The jury went further, however, and found that such unseaworthiness of the vessel was the proximate cause of the injury of Joe Mallia. After a careful review of all the evidence we have reached the conclusion that there is no evidence to support this latter finding, and that the contention of appellee that the unseaworthiness of the Natina was the proximate cause of the injury is not sustained.
The jury in general terms without specifying any particular improper appliance or appliances, also found that the vessel was not equipped with proper appliances, and that the failure to so equip the vessel was the proximate cause of the injury to Joe Mallia.
We have reached the conclusion that there is no evidence to support either of these findings — that is, that the vessel was not equipped with proper appliances, or that the want of proper appliances was the proximate cause of the injury complained of — nor was there any evidence which would support a finding of the trial court that there was any causal connection between the unseaworthiness of the vessel and Mallia's injury. The undisputed evidence shows that the injury complained of was due to the order given by Captain Dullahan to the winchman on the barge to which the cable was attached to tighten the cable at a time Joe Mallia had his fingers under the same, and that such order was the direct and sole approximate cause of the injury to Mallia, unless it can be said that the negligence of Mallia in putting or leaving his fingers under the cable after hearing the order of Dullahan to tighten the same was a contributing cause.
Since this is a cause of action arising under the maritime law, it must be governed by that law in fixing liability. What is the liability in the present case? At the time of his injury Joe Mallia was engaged in performance of his duties on the vessel Natina under a maritime contract. The scope, effect, and liabilities arising under such contracts are defined and regulated solely by the general maritime law, which is a different system of jurisprudence from the common law, and is not subordinate to nor controlled thereby. Southern Pacific Co. v. Jensen,244 U.S. 205. 37 S. Ct. 524, 61 L. Ed. 1086, L.R.A. 1918C, 451, Ann.Cas. 1917E, 900. While it is true that the plaintiff has chosen common-law remedy, such choice neither changes the maritime rights of the parties, nor creates a new right in either. Chelentis v. Luckenbach, etc., Co.,247 U.S. 372, 38 S. Ct. 501, 62 L. Ed. 1171. In the case last cited it is said:
"A seaman may not recover in a common-law action according to the full indemnity rule of the common law for personal injuries received in the performance of his duties at sea, through the negligent and improvident order of his superior officer, but the measure of his recovery is that of the maritime law, viz. wages, maintenance, and cure, notwithstanding the provisions of the Act of September 24, 1789 (1 Stat. 76, c. 20) § 9 (Judicial Code, §§ 24, 256), giving the federal District Courts exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it, *Page 760 and of the Seamen's Act of March 4, 1015 (38 Stat. 1185, c. 153) § 20 (Comp. St. 1916, § 9337a), that in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority. * * * Has Congress changed the situation by section 20 of the Seamen's Act (38 Stat. 1164, 1185), c. 153 (Comp. St. 1916, §§ 8306, 8337a), as the plaintiff contends? He argues that the act makes the master a fellow servant of the seaman, and therefore that Congress intended to make the relation between the seaman and all the officers throughout the same as at common law. But the Supreme Court, in the case of The Osceola, * * * while reserving the question whether the master and seaman were fellow servants, held that it made no difference whatever in respect to the liability of the shipowners for an improvident order of the master which resulted in personal injuries to the seaman. * * * It follows that whether the master and seaman are fellow servants or not is quite immaterial in the case of a suit for injuries resulting from an improvident order of the master. For this reason the court was right in directing a verdict for the defendant and the judgment is affirmed."
Following, then, the rule established by the cases cited and quoted from, we are constrained to hold that the measure of damages in the present case is for wages, maintenance, and cure, and that the court should have confined the jury to that measure of damages alone.
The court submitted to the jury the following questions:
"Was the plaintiff injured in the manner as alleged by him?"
"Was the defendant guilty of negligence in failing to equip said hull Natina with necessary and safe appliances for the proper handling of said vessel?"
Appellant assigns these questions as error for the following reasons:
"(1) Because there was no evidence showing that appellee's injuries were caused from the want of necessary and safe appliances.
"(2) Because the jury could not tell what was meant by said questions as they do not specify any particular appliance, and because neither the pleadings nor the evidence showed that appliances such questions had reference to, or what was or what was not a necessary and safe appliance. Such questions were misleading and confusing and permitted the jury to go outside of the record and the pleadings to determine whether the appliances were necessary and safe, and did not disclose upon what fact or facts an answer to the questions could have been based, and because the evidence showed conclusively that appellee was injured either by reason of the negligent order of Dullahan to tighten on the cable, or from his own contributory negligence in having or putting his hands under the cable after the order was given by Dullahan to tighten thereon."
We think the objections urged to these questions should be sustained; but, if we are correct in our holding upon the questions already discussed, the errors in submitting such questions become immaterial, and therefore it is unnecessary to discuss them further, in that, under the undisputed facts, appellee could recover for his injuries wages, maintenance, and cure only, regardless of whether appellee was or was not guilty of negligence which caused his injury, it being shown that the unseaworthiness of the vessel did not contribute to such injury.
What has been already said disposes of the contention made by the fourth, fifth, sixth, and seventh propositions of appellant, and therefore we deem it unnecessary to discuss them further.
By appellant's proposition No. 8 it is contended that, in view of the fact that the trial court tried this cause as at common law, and allowed the jury to find compensatory damages, said trial court erred in not submitting the question of contributory negligence on the part of Joe Mallia upon proper request therefor. We agree with the contention thus made, but, as has been shown under a discussion of other assignments, it is the law of the sea that vessel owners are liable for wages, maintenance, and cure of a seaman injured in the service of the ship, regardless of whether there was negligence on the part of the shipowner or contributory negligence on the part of the injured party; therefore, in such cases as the present one, a charge upon contributory negligence would be improper.
The disposition we have made of the assignments already discussed renders it unnecessary to discuss the remaining assignments, and we refrain from so doing.
Having reached the conclusion that compensatory damages are not recoverable in the present case, we reverse the judgment of the trial court, and remand the cause, so that the appellee, upon proper pleadings, may recover what he may show himself entitled to under the maritime rule which allows him wages, maintenance, and cure.
Reversed and remanded.