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I.layer, The Charles F. (C. C. A.)

433 | Radford, United States v. (D. C.)...... 378

Mayhew, Brodrick Copygraph Co. of New Ramsey, Richmond Locomotive Works v.

Jersey y. (C. C.)........

92 (C. C. A.)........

Mellor & Rittenhouse Co., Bethel v. (D. C.) 129 | R. C. Veit, The (D. C.)....

400

Merrow, In re (D. C.)...

Regina Music Box Co. v. Newell (C. C.)... 606

Mertens, In re (D. C.)...

Restein & Co., Daniel v. (C. C.)....... 469

Mertens, In re (D. C.).....

R. F. Downing & Co., United States v. (C.
Meyer & Lange v. United States (C. C.)...

653

M. J. Breitenbach Co. v. Spangenberg (C. R. G. Dun & Co., Mower-Hobart Co. v. (C

C.) ................................. 160

C.) ....

Montgomery Electric Light & Power Co., Richmond Locomotive Works v. Ramsey

Westinghouse Electric & Mfg. Co. v. (C.

C. A.) .....

86 Rickmers, The Robert (D. C.)....... 638

Moody. In re (D. C.)..

..... 525 Riggs & Co. v. United States (C. C.)..... 568

Morrill v. Hardware Jobbers’ Purchasing Robert Rickmers, The (D. C.)............

Co. (C. C.)......,

882 Roberts v. Shelby Steel Tube Co. (C. C. A.) 729

Moulton v. Coburn (C. C. A.).

Roddy, Chicago Great Western R. Co. v.

Mower-Hobart Co. v. R. G. Dun & Co. (C. C. A.).....

(C. C.)...

812 Roessler & Hasslacher Chemical Co., Peter-

Mutual Life Ins. Co., Keen v. (C. C.)..... 559 son v. (C. C.).........

Roessler & Hasslacher Chemical Co., Unit-

Naretti v. Scully (D. C.)................. 399 ed States v. (C. C.)......

Neresheimer v. United States (C. C.)...... 977 Rogers, Habeler v. (C. C. A.)..........

Newell Recina Music Box Co. v. (C. C . 606 Roosevelt. Brinckerhoff v. (C. C.)......... 95

New Jersey Wire Cloth Co. v. Buffalo Ex Ronan v. 155,453 Feet of Lumber (D. C.).

panded Metal Co. (C. C.)...

265 Rupp & Wittgenfeld Co. v. Elliott (C. C.

Newport News & 0. P. Ry. & Electric Co.,

730

Hampton Roads Ry. & Electric Co. v. Ryttenberg v. Schefer (D. c.)............ 313

(C. C.)...

..... 534

New York Air Brake Co., Westinghouse v. Sackett v. McCaffrey (C. C. A.)......

(C. C.).

607 S. A. Cook & Co. v. Heywood Bros. &

New York Cotton Esch., Ex parte (D. C.).. 617 Wakefield Co. (C. C.)......

New York Interurban Water Co., Inman v. Sacramento, The (D. C.).........

(C. C.).. ......:::......:::::.........

Salom, American Alkali Co. v. (C. C. A.)..

Ninety-Six Tp., Folsom v. (C. C.)..... 496 Sanborn, In re (D. C.).....

397

Nishimiya v. United States (C. C.)....... 650 Sanitary Fireproofing & Contracting Co. v.

Northern Pac. R. Co., Garlich v. (C. C.

Sprickerhoff (C. C.)..

868

Northwestern Commercial Co. v. Bartels San Jacinto & P. v. Irr. Dist., Marra v.,

(C. C. A.)......

25! two cases (C. C.)...................... 780

Nowacke, Bechtold v. (C. C.)......

Santiago, The (D. C.)..........

383

Savannah Electric Co., Ilolst v. (C. C.)... 931
O'Connell v. Pinnacle Gold Mines Co. (C. | Sawyer-Boss Mfg. Co., Force v. (C. C.)... 884

106 Schefer. Ryttenberg v. (D. C.)............ 313
O'Donnell, In re (1). C.).......

150 Schenectady R. Co., Thompson v. (C. C. A.) 577
Oehrle v. William H. Horstmann Co. (C. C.) 487 Scherber, In re (D. C.)........

121

155,453 Feet of Lumber, Ronan v. (D. C.) 345 Schneider, Boyd v. (C. C. A.).............

223

Our Friend, The (D. C.)........

393 Scully, Naretti v. (D. C.)......

| Selchow, H. B. Chaffee Mfg. Co. v. (C. C.) 543

Pan-Coast Ventilator & Mfg. Co., Janney Seven Barrels of Whisky, United States v.

y. (C. C.)

(D. C.) ......:

806

Parkersburg Branch R. Co., Coster v. (c. Shaw Co., Blumberg v. (C. C.)....... 608

Shelby Steel Tube Co., Roberts v. (C. C.

Patillo v. Allen-West Commission Co. (c.

A.) .................................

C. A.) ........

Shelton v. American Surety Co. of New

Pearson & Emmott, United States v. (C. C.) 571 York (C. C. A.)..

Y

Peterson v. Rocssler & Hasslacher Chem Simmons Mfg. Co. v. Southern Spring Bed

ical Co. (C. C.)......

156 Co. (C. C.).......

278

Phelps, The Erskine M. (C. C. A.)...

1 Simon & Co. v. United States (C. C.)::

649

Philadelphia Pneumatic Tool Co., Timo Simpson, Southern R. Co, v. (C. C. A.)....

v. (C. C.).........

257 Sioux Falls, Farmers' Loan & Trust Co. v.

Phoenix Bridge Co. v. Castleberry (C. C. A.) 175

(C. C.) ........

890

Pinnacle Gold Mines Co., O'Connell v. (C. 622,714 Feet of Lumber, McArthur Bros.

C.) ......................:::::::::

106 Co. v. (D, C.)..................::::..

Portner, Blue Mountain Iron & Steel Co. Snellenburg, Bobbs-Merrill Co. v. (C. C.).. 530

v. (C. C. A.)....

57 Southern R. Co. v. Simpson (C. C. A.)..... 705

Power, The William (D. C.).......

136 Southern R. Co., Atlanta, K. & N. R. Co. v.

Prince & Walter, In re (D. C.)........... 546 (C. C. A.).

6.77

Southern R. Co., McIntyre v. (C. C.)......

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443 / United States v. Seven Barrels of Whisky Sparks, Jabine .v. (C. C. A.)... ... 440 (D. C.) .......

806 Spear v. Keystone Lantern Co. (C. C.).... 879 United States v. Swan (D. C.)..... 140 Sprickerhoff, Sanitary Fireproofing & Con

I Unite tates v. York ( tracting Co. v. (C. C.)...

868 United States, B. Ulmann & Co. v. (C. C.) 649 Sprigg v. Commonwealth Title Ins. &

United States, Dickson v. (C. C.)......... 573 Trust Co. (C. C. A.)......

5 United States, Dodge v. (C. C. A.).... 849 Stalmann, Thompson v. (C. C.)......... 809 , United States, F. H. Leggett & Co. v. (C.C.) 8.17 Standard Sanitary Mfg. Co. v. Arro United States, Gartner & Friedenheit v. (C. C.) .......:::::::::

(C. C.) .....

574 : Standard Spoke & Nipple Co., Bean-Cha United States, George Lueders & Co. v. berlain Mfg. Co. v. (C. C. A.)..

215

(C. C.) ..... Star Brass Works v. General Electric ( United States, George Riggs & Co. v. _(C. C. A.)......:::::................

(C. C.) .....

568 10 Starrells, Kahn v. (C. C.).

464 United States, Hahn v., two cases (C. C.)..1000 State Nat. Bank, First Nat. Bank v. (C. United States, Hall & Bishop v. (C. C.)... 648 C. A.). 422 United States, Hoeninghaus & Curtis V.

570 430 United States, J. R. Simon & Co. v. (C. C.) 649 Stein & Langlos Electric Mfg. Co., Am

United States, Kirk v. (C. C.)........... 331 ican Electrical Novelty & Mfg.' Co.

United States, Meyer & Lange v. (C. C.)... 817 (C. C.) ..

United States, Neresheimer v. (C. C.)....

977 Stockwell v. Boston & M. R. Co. (C. C.).. 152 United States, Nishimiya v. (C. C.).... 650 Stockwell v. Boston & M. R. Co. (C. C.).. 153 United States, Tiffany v. (C. C.)...

398 Supreme Council A. L. H., McAlarney y. (C. United States, Traitel Bros. v. (C. C.)... 994

C.) .............::::::............... Sutter Bros., In re (D. C.).....

654 Valentine, The (D. C.)... Swan, United States v. (D. C.)....

140 | Van Tine y. Hilands (C. C.)..... Sweetser, In re (D. C.)....

567 | Vedamore, The (D. C.)........

Veit, The R. C. (D. C.)...... Taylor v. Ziegenhagen (C. C. A.).... 232 | Victor Talking Mach. Co. v. America Tennessee Oil, Gas & Mineral Co. v. Brown I Graphophone Co. (C. C. A.)... (C. C. A.)...........: 696 Viquesney v. Allen (C. C. A.)....

21 Thompson v. Schenectady R. Co. (C. C. A 577 Thompson v. Stalmann (C. C.)...

809 Ward v. Ward, two cases (C. C.).... Tiffany v. United States (C. C.).... 398 Weisenberg & Co., In re (D. C.).... Tilghman v. Eidman (C. C.)......

651 Weisgerber v. Clowney (C. C.)......... Timolat v. Philadelphia Pneumatic Tool

Welsh, George T. Bisel Čo. v. (C. C.)... (C. C.) ...,

2.57 West End Trust & Safe Deposit Co., Lake Titania, The (C. C. A.).

229 Drummond Canal & Water Co. v. (C. C.) 147 Tombstone Mill & Min. Co., Empire Mill. Westinghouse v. New York Air Brake Co. Min. Co. v. (C. C.)....

339 (C. C.) ... ...... Traitel Bros. v. United States (C. c.)... 994 Westinghouse Electric & Mfg. Co. v. MontTucker, In re (D. C.)...

647 gomery Electric Light & Power Co. (C. C.) Tweed. In re (D. C.)..

355 Western Tel. Mfg. Co. v. American Electric

Tel. Co. (C. C. A.)................... Ulmann & Co. v. United States (C. C.)... 649 Weston Electrical Instrument Co. v. EmUnited States v. American Exp. Co. (C. C.) 655 pire Electrical Instrument Co. (C. C.).. United States v. American Sugar Refining Weston Electrical Instrument Co. v. Em. Co. (C. C. A.)........

pire Electrical Instrument Co. (C. C.)... United States v. Astoria & C. R. R. Co. Weston Electrical Instrument Co. v. Em(C. C.) .....::::

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815 United States v. Breese (D. C.).......... 915 | W. G. Mason, The (D. C.).......

632 United States v. Burton (D. C.).... 552 White, The Allison (D. C.)...

991 United States v. Detroit Timber & Lumber White River Valley Electric R. Co., BibberCo. (C. C. A.)...........

669 White Co. y. (C. C.)............ .... United States v. Fleitmann & Co. (C. C.).. 396 | Whitney Electrical Instrument Co., Weston United States v. Geddes (C. C. A.)...... 452 Electrical Instrument Co. v. (C. C.)..... 280 United States v. Godillot & Co. (C. C.). 653 | W. H. McWhirter Co., Lincoln Ironworks United States v. Grunberg (C. C.).....

v. (C. C.)...

860 United States v. Harts (D. C.)........ 896 W. I. Babcock, The (D. C.).....

632 United States v. Pearson & Emmott (C. 571 Wickham y. Barlow (D. C.)........

819 United States v. Radford (D. C.).... 378 Wildcroft, The, two cases (C. C. A.).. 235 United States v. R. F. Downing &

Wilde's Sons, In re (D. C.).....

142 (C. C.).

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1004 York City School Dist. v. Ætna Indemnity Wilkin v. Hill (C. C.)... 762 Co. (C. C.)......

131 Willeford, Bailey v. (C. C. A.)..

242 | York County Sav. Bank v. Abbot (C. C.)... 980 William H. Horstmann Co.,' Oehrle v. (C. Yost Electric Mfg. Co., General Electric Co.

V. (C. C.).... William Power, The (D. C.)..

Young, Kuntz v. (C. C. A.). ........ 719 Williams, Clifford v. (C. C.)

Zeigler v. Hallahan (C. C. A.)...... York, United States v. (C. C.)....

323 Ziegenhagen, Taylor v. (C. C. A.).

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CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE

CIRCUIT AND DISTRICT COURTS.

THE ERSKINE M. PHELPS.
(Circuit Court of Appeals, Ninth Circuit. May 31, 1904.)

No. 1,014.

1. SEAMEN-INJURY IN SERVICE-DUTY OF SHIP TO MAKE NEAREST PORT.

The master of a sailing ship on a voyage to Honolulu was not chargeable with a neglect of duty which renders the ship liable in damages because he did not return from the vicinity of Cape Horn to Port Stanley, Falkland Islands, which was the nearest port, and 540 miles distant, with a sea man who received an injury in which both bones of his leg below the knee were broken, where the mate, who had some surgical skill and experience, took charge of the injured man, and set the bones, which united firmly, but, by reason of the fracture being oblique, overlapped, producing a shortening of the leg, and where, while the ship could probably have made the islands in two or three days, the season was midwinter, when the days were short and cold and storms prevailed, and it was further shown without contradiction that the entrance of the harbor at Port Stanley by a ship of her size was very dangerous, and likely to take several days at that season, and that vessels went there only as a last resort, and in cases of dire necessity.

Appeal from the District Court of the United States for the District of Hawaii.

R. W. Breckons and Holmes & Stanley (Milton Andros, of counsel), for appellants.

T. McCants Stewart and J. J. Dunne, for appellee.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge. The appellee was an able-bodied seaman on the Erskine M. Phelps, a full-rigged four-masted ship of 2,715 registered tons, which sailed on May 1, 1903, from the port of Norfolk, Va., bound for the port of Honolulu, Hawaiian Islands. On July 15, 1903, while in latitude 58° 29' south, longitude 65° 30' west, a little to the southward and westward of Cape Horn, the ship encountered

131 F.-1

very heavy gales, and was laboring heavily. About 6 o'clock in the evening, when the ship had just come about, and while the men were hauling at the forebraces, a large wave came over the port bow and completely buried the fore part of the ship. The appellee, who was hauling at the forebraces, was struck by the wave and thrown against the rail, and thereby sustained a fracture of both bones of the right leg at a point nearly midway between the ankle and the knee. The captain, knowing that the first mate had some medical skill, directed him to set the broken leg. The first mate accordingly did so. He testified, and it is not disputed, that he had served from 1891 to 1897 in the United States navy, and had received instruction in “first aid to the wounded," and had served 270 days in the Boer War, in which he said he had had plenty of experience, for the small commandoes had no surgeons, and the men had to help one another. The first mate, after setting the fractured bones, placed the appellee's leg in splints, bandaged it, and suspended it in a swing. The appellee was confined to his bunk until August 23, 1903, when he was carried out on the deck. Four days later, while walking on the deck with the support of a crutch and a cane, he slipped and fell, and his leg was again injured, probably broken. It was again bandaged and placed in a sling, and the appellee was confined to his bunk until about four days before September 15, 1903, the date of the arrival of the ship at Honolulu. On September 17, 1903, at his request, the appellee was taken to a hospital at Honolulu. It was there ascertained that the bones of the leg, which had been obliquely fractured, had firmly united, but that they overlapped, producing a shortening of the leg. The trial court found that the appellee was permanently injured and incapacitated from performing hard labor, but that there was no proof of the failure of the ship in its duty to him, except in the neglect to provide proper care and medical attention, which should have been done by putting into some convenient port for surgical treatment, and that the failure of the master so to deviate from his course constituted negligence for which the ship was liable in the sum of $1,800.

The accident occurred in the middle of the winter season. Eight others of the crew were injured at the same time, leaving nine men on duty. Of these nine men, the captain testified-and it is not deniedthat two or three were useless on account of saltwater boils and ulcers. The same sea that caused the accident washed overboard the fore and main braces. Some of the braces were cut in twain by the iron shutters of the ports; some of them had to be spliced, and others replaced. Under these circumstances the captain was confronted with the question whether his duty to the injured seaman required him to take the appellee back to Port Stanley, in the Falkland Islands, for surgical treatment. The lower court held that it was his duty to have put into the nearest port to obtain such aid, “if it was reasonably possible for him to do so," and that he should have sailed for Port Stanley. At the time of the accident, as shown by computations made from the log of the first officer, the ship was 484 miles in a direct line from that port, and 540 miles as the ship would sail. The wind was favorable for sailing in that direction. The ship, with all sails set, and under favorable conditions, could make 288 miles per day. The captain, in giving his

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