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3 F.(20) 58S denied by the master. The appellant three weeks after the operation of the hershipped as a "work-away" at one cent a nia, when he got up and began to walk, month. He was set to work, under the This kept him in the hospital for seven boatswain, cleaning up the vessel, painting, months longer, with constant hemorrhages scraping, and carrying heavy boards, which from the wound caused by the operation for were used as scaffolding. When the vessel thrombosis of the veins. It was accomwas two days out, he was carrying two panied by pain and is a permanent disabili. heavy pails of sugee, a mixture used for ty, which will prevent him from doing cleaning, and while so doing sustained a heavy work. severe strain, with the resulting hernia. [1-3] The argument is advanced that this There is evidence that he did not have this thrombosis resulted from his maltreatment hernia prior to this time, which affords cor- while on board the vessel. It cannot be roboration for his statement and supports doubted that, if he was defiant and subverthe finding below.

sive to discipline that must be maintained After this day, he said he complained to at sea, the captain had full authority to the captain, asking for medical attention punish him. Section 7 (4) of chapter 153 half a dozen times, without result. He re- of the Laws of 1915, 38 Stat. 1167 (Comp. fused to work, claiming that he was unable St. $ 8380). He was entitled to mainteto do so because of his sickness. The Poly- nance and cure while sick with hernia, and, bius remained at Porto Delgado five or six of course, the same would be true of his days before resuming her voyage to New illness from thrombosis, if it were estabYork. His testimony, if believed (it was lished with reasonable certainty that the innot below). warranted the claim that he jury or maltreatment on shipboard was a was ill-treated in so far as food, place to competent producing cause thereof. Howsleep, and obligation to work was con- ever, the medical testimony does not warcerned. A day out from New York he was rant the claim of the appellant that the asked to clean the smokestack in a storm, thrombosis resulted from either. That tesand for failure to do so was confined in timony establishes that the mere position chains. His confinement, according to his the patient assumed during the period of own story, was very cruel and inhuman. his confinement would not cause thrombosis, Indeed, if believed, it would be such as unless during that time he had received would endanger his life. There was cor some trauma or contusion of the thigh, roboration of this confinement by the cap- which later led on to the formation of a tain's waiter and the boatswain. The boat- thrombus. It was testified that the thromswain says he saw him at various times bus occurred a month later, and further: from 9 in the morning until quarter of 5 “Q. And the poor circulation of blood for in the afternoon in a stooped position in 24 or 30 hours, is that not a competent prothe room referred to as the supercargo ducing cause for the coagulation of blood ? room. It was located in the bulkhead end Include with that the fact that the man is of the vessel, and required him to be placed suffering from a hernia. A. Thrombosis ocin a semi-sitting position on a ledge be- curring a month later, I would consider tween the bunk and the partition. He said that this predisposing element would be his hands were manacled and fastened to a very trifling. brass ring on one of the drawers, so that “Q. Do you know of anything of that they were only three or four inches from kind in the hospital which would cause the floor. The District Court has analyzed thrombosis a month later, or three weeks the testimony as to his confinement and has after the operation? A. Thrombosis is not refused to believe it. We need not pass on an infrequent complication following an opthe truth of this story, but the facts are eration of any kind. irrelevant, even if true.

"Q. What would be the effect of chaining But he sustained a hernia, and received a man, or keeping him in a position bendno medical care for it, and it appears, with- ing over, on a rupture of the abdomen ? out contradiction, that on the second day A. Well, it couldn't have any effect on the after his arrival in New York he went to rupture. It would be a very distressing the United States Marine Hospital where he thing: was operated on and obliged to remain for "Q. Assuming that he was chained in three weeks in endeavoring to be cured of that position, and that he was there for 24 this sickness. He afterwards developed to 30 hours; in your judgment, did that thrombosis of the veins of his right thigh have any effect on the condition of his leg? on the outer surface, which appeared some Was that the cause of the condition that

ness.

He was

you found in his leg? A. It couldn't cause they were under a duty to furnish said the varicosities for the enormous blood ves- Charles Morris as aforesaid, put said sel tumor. It would be a very painful Charles Morris in chains, notwithstanding thing. I can't say that it would do any- his said injuries, forced him to work, notthing else, except cause pain, and very withstanding same, and otherwise maltreatsevere pain.”

ed and abused him, to such an extent as to And further:

cause him to sustain aggravation of the “Thrombosis is caused from an infinite aforesaid injuries in the manner hereinafter number of causes.

Stasis is a more particularly described, all without any real cause; that is, the slowing down of provocation of any kind on his part in any the blood. Then there are added causes wise contributing thereto." that come in, usually infection and injury. Where a seaman was not accorded that

"Q. Do you think that the stooping pos- maintenance and cure which the law imture, taking into account your examination posed upon the shipowner, we held in The of this man, had anything to do with the Bouker No. 2, 241 F. 831, 154 C. C. A. 537, thrombosis? A. I do not.

that these items might be recovered, and we The record does not disclose any testi- said: mony which would show that this injury or “We hold that the rule was correctly confinement would be a competent produc- enunciated by Judge Addison Brown, and ing cause for the thrombosis; but the con- that the duty of the ship and owner pertrary is shown. Under the circumstances, sists for a reasonable time after the terthe appellee would not be obligated to main-mination of voyage and wage relation. Of tain the appellant or to pay for the effort course, it must begin before such terminato effect a cure from this branch of his sick- tion. The meaning of the phrase 'mainte

The appellant, however, would be re- nance and cure' is plain. By the custom of sponsible for his cure and maintenance dur- the sea the hiring of sailors has for cening the period he was ill with hernia. The turies included food and lodging at the exIroquois, 194 U. S. 240, 24 S. Ct. 640, 48 pense of the ship. This is their mainteL. Ed. 955. There is no proof of either nance, and the origin of the word indicates medical expense or hospital cost.

the kind and to a certain extent the quantreated in the United States Marine Hospi- tum of assistance due the sailor from his tal. This is not a suit to recover damages ship. We agree with the remark in The for putting the appellant in irons, or com- Mars, supra (149 F. 729, 79 C. C. A. 435), pelling him to do work while he was sick, that: “The word "cure" is used in its orig. or for giving him insufficient food. There inal meaning of care, and means proper are no such allegations in the libel as plead- care of the injured seaman, and not a posied. The libel in paragraph fifth reads as tive cure, which may be impossible.' follows:

“Furthermore, 'cure' has been held to sig“That on or about November 10, 1920, nify: 'The ordinary medical assistance and and during the course of the aforesaid voy- treatment in case of injury or acute disage on the aforesaid steamship upon which ease, for a reasonable time. The ship is said Charles Morris was employed as above not bound to pay for [the sailor's] medicadescribed, he suddenly sustained severe per- tion for the cure of a chronic disorder for sonal injuries of such nature as to totally an indefinite length of time.' The Ella S. incapacitate him, arising out of the course Thayer (D. C.) 40 F. 904. Nor does the of his employment upon said steamship, in liability of the ship extend beyond—'erthat, while carrying two pails of water pense of effecting a cure by ordinary mediabout said ship, he sustained a severe sprain cal means. This does not include extraordi. and hernia, owing to the excessive weight nary medical treatment or treatment after of said two pails, which he had been in- cure effected as completely as possible in structed by his superior officers on said ship a particular case.' The C. S. Holmes, suto carry."

pra [(D. C.) 209 F. 970). •

The In paragraph sixth he pleads of having fact is that libelant's conduct in regard to given notice of his injuries to the captain, his illness was what would be expected from and that, notwithstanding such notice, his a land worker, who 'kept house with an injuries were contributed to and aggravated income ample for a childless couple (which by reason of the failure and refusal of the was Jones' condition). He, of course, had captain and other officers in charge of said the right so to do; but he has no right to steamship “to furnish said Charles Morris charge his ship for the cost of illness, over with the reasonably good medical attention and above what would have been appropri

3 F.(20) 391 ate in the case of a sailor living on ship- C. F. HARMS CO. v. TURNER CONST. CO. board.

(Circuit Court of Appeals, Second Circuit. “Because no offer was made to send Jones

November 21, 1924.) to the Marine Hospital, we hold him entitled to recover for maintenance and cure as

No. 15. long as (so far as we can gather from this evidence) he would have remained in the 1. Shipping Om54, 58(2)-in absence of con

tract, charterer liable for negligence only; Marine Hospital, had he gone there.”

burden on owner to prove negligence. See, also, The Van der Duyn (C. C. A.)

In absence of contract, charterer of barge 261 F. 887.

is liable to owner for negligence only, and bur[4-7] During the time of his illness on den is on owner to prove negligence. the voyage to New York, which lasted from 2. Evidence em 10(5)—Judicial cognizance tak. November 7th to December 19th, about five en of difference between high and low water weeks, the appellant should have been re- at Dutch Kills creek. lieved from duty and at the same time re- It is common knowledge, from tide tables, ceived medical attention. The treatment he between high and low water at Dutch Kills

of which court takes cognizance, that difference did receive when he landed in New York creek is slightly less than five feet. cured him of his hernia. At least there 3. Shipping en 58(2)–Evidence held Insufiwas no proof of permanency of that injury,

cient to show negligence of charterer in and there can be no allowance for future berthing barge at wharf. doctor bills which might be incurred in a Evidence held insufficient to show negligence reasonable effort to cure him in the future. of charterer in berthing barge at wharf. Indeed, it was the duty of the captain of 4. Shipping Gm62–Owner and not charterer of the vessel to obtain medical aid at the in- barge held liable for injuries from master's

failure to obey wharfinger's instruction. termediate port of the Azores for the injured seaman if he had no means of afford- finger's instruction to breast off 5 feet from

Where master of barge failed to obey wharing medical attention on board. The Gov- bulkhead, so that barge would clear ridge of ernor (D. C.) 230 F. 857; The Badger (D. mud at low tide, owner, and not charterer was C.) 218 F. 81; Unica v. United States (D. liable for injuries resulting therefrom. C.) 287 F. 177. Even though the captain Learned Hand, District Judge, dissenting. was mistaken, and committed an error of judgment in believing that the appellant Appeal from the District Court of the was shamming, this fact does not relieve United States for the Eastern District of the ship from the responsibility it owed to New York. the seaman. Unica v. U. S., supra.

The

Libel by the C. F. Harms Company consequential damage due to the failure to against the Turner Construction Company. afford medical aid and maintenance is a

From a decree dismissing the libel (290 F. measure of damages which is to be awarded. 612), libelant appeals

. Affirmed. Recoveries have been permitted for neglect to furnish the proper medical care and and chartered her with master aboard to re

Libelant owned the covered barge Bull, treatment in actions instituted for consequential damages. North Alaska Salmon spondent for the express purpose of carryCo. v. Larsen, 220 F. 93, 135 C. C. A. 661; about 460 tons, and dispatched her to a

ing cement. The charterer loaded her with The Eva B. Hall (D. C.) 114 F. 755; The wharf or bulkhead in Dutch Kills creek, Fullerton, 167 F. 1, 92 C. C. A. 463; The where she had been before, sometimes laden City of Alexandria (D. C.) 17 F. 390. The with the same kind of merchandise. The right of recovery for maintenance and cure

draft of the Bull on this occasion nowhere does not allow recovery for pain and șuf- definitely appears, but libelant stated that fering or compensation for injury due to she had about "912 feet depth of hold,” physical incapacity. The Bouker No. 2, which phrase, as she was an ordinary covsupra. A right of action for damage for ered barge, carrying cargo on deck, we take maltreatment is not pleaded here. Appel- to mean the height of her side. She could lant makes no proof of loss of wages or carry 500 tons, and was therefore nearly medical expense.

But he was obliged to fully laden. Consequently, since it is known work about five weeks when he was entitled how little freeboard vessels of this kind to be maintained in rest for cure. He have (except for the house), we do not beshould be compensated for this period. lieve the loose estimate of libelant's "out

We accordingly modify the decree by al- side foreman” that the Bull, with 400 tons lowing him $250.

on board, would "draw about 7 to 8 feet

anyway.” She must have been drawing al- was proven. Therefore respondent, as charmost the depth of her side, or about 9 feet. terer, was liable for negligence only, and the

She arrived at her destination at 9 o'clock burden was upon libelant to prove it. on a Saturday morning, and the evidence is Harms v. Upper Hudson Co., 234 F. 859, clear that her master was instructed by the 148 C. C. A. 457; Schoonmaker v. Lambert wharfinger's agent to breast off 5 feet from (C. C. A.) 268 F. 102. the bulkhead, so that at low tide the boat [2] The evidence given as to soundings would clear a "ridge of mud” near said around the barge as she lay sunk proves too bulkhead. Unloading her cargo began at much, for we take cognizance of the fact reonce, and by noon, when the laborers seem vealed to common knowledge by the tide to have ceased work, she had been lightened tables that the difference between high and by at least 45 tons. The tide was dead low low water in such a place as the Dutch Kills at 2:20 p. m., and the Bull rode out that is slightly less than 5 feet; so we cannot tide apparently afloat, and certainly without place any confidence in these soundings, for known injury.

if they are correct the Bull could not have That afternoon or evening her master left gotten into the position where she was at her. The tide was low again at 3:04 on full high tide, yet she undoubtedly got there Sunday morning, and at a quarter of 7 she without difficulty, and lay peacefully diswas observed by a witness listing away from charging her cargo for several hours before the bulkhead, and some part of her deck was

low water. under "about 3 inches of water." Her stern [3, 4] The libelant, through its master, seems subsequently to have broken the line was responsible for the maintenance and connecting it with the bulkhead and to have care of the Bull's lines, and, if the "ridge slipped away from the wharf, so that she of mud” of which the master was warned ultimately lay on the bottom, with her star- had anything to do with this accident, libelboard bow less than 3 feet from the pier ant is responsible for not having obeyed the side, and her stern about 10 feet therefrom. admonitions of the wharfinger's agent. Her master did not testify.

Morey v. New Rochelle, 254 F. 425, 166 C. Libelant's "outside foreman” subsequent- C. A. 57. It is enough to conclude that lily caused soundings to be made around the belant wholly failed to show by a fair preBull as she lay in the position above indi- ponderance of evidence any negligence on cated, and declared that at an extreme low the part of respondent. The case would tide the side nearest the bulkhead showed have been clearer and much easier to try, from 3 feet 2 inches to 4 feet 6 inches of had the libel even faintly responded to what water, while the other side was in a depth the libelant was prepared to prove. varying from 4 feet at the stern to 9 feet Decree affirmed, with costs. at the bow. The government chart of Dutch Kills shows a depth of mean low water in

LEARNED HAND, District Judge, dis1922 of nowhere less than 10 feet.

sents. The court below dismissed the libel, and respondent appealed.

Walter B. Hall, of New York City, for appellant.

SOO HOO YEE v. UNITED STATES et al. Bigham, Englar & Jones, of New York

(Circuit Court of Appeals, Second Circuit. City (Henry N. Longley and F. Herbert

November 3, 1924.) Prem, both of New York City, of counsel),

No. 39. for appellee.

1. Aliens 32(13) Trial in District Court Before HOUGH and MANTON, Circuit

on appeal from commissioner in deportation Judges, and LEARNED HAND, District

proceedings is de novo. Judge.

On appeal from order of United States commissioner in deportation proceedings, the trial

in the District Court is de novo. HOUGH, Circuit Judge (after stating the facts as above). [1] The pleadings herein 2. Aliens em 32(13) -Alleged alien need not give no indication of the case that was ac- submit testimony before commissioner in tually tried. Libelant sued upon a breach

deportation proceedings, but may appeal di.

rectly to the District Court, of an alleged contract to return this chartered vessel in the same order and condition alien need not submit testimony before the

In deportation proceedings, the alleged in which she was received, ordinary wear commissioner, but may directly appeal to the and tear excepted, and no such contract District Court for trial de novo in such court.

3 F.(20) 592 3. Citizens On 3—Member of Mongolian race, Appeal from the District Court of the

born in United States of parents subject to United States for the District of Vermont. its jurisdiction, is "citizen" of United States. Under Const. Amend. 14, a person of the

Deportation proceeding by the United Mongolian race, born within the United States States and James C. Ford, Chinese Inspecof parents who were subject to its jurisdiction, tor, against Soo Hoo Yee. From a decree is a citizen of the United States.

for deportation, on appeal from the Com[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Citi

missioner, defendant appeals. Decree rezen.]

versed, and defendant discharged from cus,

tody. 4. Aliens 32(1)-Chinaman entitled to de.

termination of whether he is citizen in judi. Everett Flint Damon, of Boston, Mass. cial proceeding,

(Walter Bates Farr, of Boston, Mass., of Chinese person, who is found in the United

counsel), for appellant. States, and who claims right to remain because he is a citizen, is entitled to determination of Harry B. Amey, U. S. Atty., of Island such right in a judicial and not an administra- Pond, Vt., for appellees. tive proceeding.

Before ROGERS, HOUGH, and MAN5. Aliens 32(13) -Evidence held to prove TON, Circuit Judges.

Chinaman a citizen, because born in this country.

In deportation proceedings against China- ROGERS, Circuit Judge. This is a deman, evidence held to prove defendant a citi- portation proceeding. The appellant is a zen, because born in this country.

Chinese person and a laborer, and it is al6. Evidence O345(2) - Record of federal leged that he is unlawfully within the Unit

court may be proved in other United States ed States. The proceeding for his deportacourt by clerk's certificate without judge's tion was instituted by the Chinese Inspector certificate that attestation is in due form. Record of federal court may be proved in

at Newport in the state of Vermont, who any other court of United States by certificate filed a complaint against him, alleging thereof clerk under seal of court without certificate in that Soo Hoo Yee was in the United of judge that attestation is in proper form. States in violation of the Chinese Exclusion 7. Aliens w32(6)-Hearsay evidence as to

Law (Comp. St. § 4320 et seq.). A warplace of birth held admissible because best

rant for his arrest was issued on June 14, evidence obtainable.

1923, and was executed and returned on the In deportation proceeding involving issue same day. Bail was fixed at $2,500, and as to whether defendant was citizen of United

was furnished with the National Surety States because born therein, testimony that parents of defendant had told witness that de- Company as surety. The case finally was fendant had been born in the United States, set for hearing on June 27, 1923. On that though hearsay, was admissible, where the day the alien was present with his witnessfather was dead, and the mother, if living, was

es, and asked for a further continuance to not in the United States, being the best evi. dence obtainable.

enable him to prepare his case.

refused, and the alien thereupon declined to 8. Judgment 540—Former adjudication on

introduce testimony, and no evidence was merits bar to further prosecution on same matters between same parties.

presented, either documentary or otherwise, A former adjudication on the merits is a

to prove his right to remain in the United bar to a further prosecution of the same mat- States. It was thereupon adjudged and deter between the same parties.

creed that Soo Hoo Yee be removed from 9. Aliens 32(6)

the United States to the country from Certificate of United States commissioner in one district not com- whence he came, the republic of China. petent evidence in other district as to dis. From this order of the United States composition of deportation proceeding in first dis- missioner an appeal was taken to the United trict.

States District Court for the District of Certificate of United States' commissioner in one district was not competent evidence in Vermont, and the alien was released on bail other district as to disposition made in depor- in the same amount as originally fixed. tation proceeding in first district.

The matter was heard before the district 10. Aliens ww32 (9)—Defendant in deportation judge on November 20, 1923. At this hear

proceeding who claims to be citizen is enti- ing considerable testimony was introduced, tled to prompt hearing and final disposition and on November 21, 1923, a decree was enon merits.

tered which adjudged that Soo Hoo Yee was Defendant in deportation proceedings who not entitled to be or remain in the United asserts that he is a citizen and has a right to States, and ordered his removal to China. be in the United States is entitled to a prompt bearing of the case and to a final disposition It directed the marshal of the district, or eiof it on the merits.

ther of his deputies, to take the alien into 3 F.(20)-38

This was

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