peculiarly applicable to the case of seamen." Not even at common law, however, does the employee assume the risk of injury through the employer's failure to fulfil his positive duties.2 Nor, furthermore, would it seem the risk of injury by the abusive treatment of a superior placed over him with authority to command him, as in the case of a seaman. The law certainly justifies the conclusions reached in The General Rucker and Memphis Co v. Hill. The power of the ship-master over seamen is great, including, as it does, the right to punish for offenses, a prerogative in no way possessed by foremen or superintendents on land. To say, therefore, that master and seaman are "fellow servants" when the former is exercising this authority is little short of the ridiculous. Nor can we perceive the relation of fellow servants to exist when a subordinate officer of a vessel is exerting his authority, as a commander, to compel obedience to his lawful orders. If the master act with moderation, when chastising a seaman, neither he nor the owners are liable. If he exceed the bounds of reasonableness, the act is a breach of the seaman's contract. And similarly, if the subordinate officer act immoderately, the owner must bear the consequences according to the accepted rules of agency, if the command and its attempted enforcement took place in the course of his employment. Otherwise there is no liability at the maritime law.

Under no doctrine of the admiralty can ship or owners be held in damages for the act of one seaman in assaulting another, unless at the time the offender happens to be acting as an officer of the vessel, assuming, of course, that there is no neglect on the part of the master.

Rule 16 of the Admiralty Rules of the Supreme Court provides that, "In all suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, the suit shall be in personam only." As a result the federal courts have persistently refused to entertain jurisdiction of a damage claim for an assault, when joined with a libel in rem for wages.

1 But see Rothwell v. Hutchinson, 13 Ct. of Sess. Cas. (4th ser.) 463.

But where

2 1 Labatt, Master and Servant §§ 2 and 270; Kalleck v. Deering, 161 Mass. 469, at 470, 471.

See Wood, Master and Servant 875; 2 Labatt, Master and Servant § 537, at

p. 1540.

See The Guiding Star, 1 Fed. Rep. 347, and cases cited; The Lyman D. Foster, 85 Fed. Rep. 987; The Falls of Keltie, 114 Fed. Rep. 357.

the libel has proceeded on the theory that the master was at fault in not preventing the act of abuse, a proceeding against the ship has been sustained notwithstanding the rule,1 and even when the master joined in maltreating the seaman.2 The reason given for the exception is that the action is founded upon something more than the mere tort because of the existence of a distinct duty on the part of the master. In other words, the gravamen of the complaint being breach of contract, the 16th rule does not exempt the ship from seizure merely because the act constituting the breach consisted of an "assault or beating." And this view is supported by no less an authority than the learned author of Benedict's Admiralty. We respectfully submit that it is sound. The conclusions reached may be summed up as follows:

(1) That in the case of an injury by accident, the seaman is entitled to no indemnity.

(2) That in the case of an injury resulting from negligence there is likewise no right to an indemnity, unless the act or acts of negligence constitute a breach of some contractual duty.

(3) That in the case of an intentional injury no indemnity can be recovered, unless the wrong also amounts to a breach of a contractual duty or unless the offender was at the time acting as the agent of the owner and within the scope of his employment.

(4) If any injury happen while the seaman is in the "service of the ship," he is entitled to maintenance and cure, to his wages and a passage back to the port of shipment, or the cost of the in the absence of wilful misconduct upon his own

same

part.

(5) If an intentional injury is a breach of the shipping contract, the ship, in America, is liable in rem.

These statements, we believe, represent the law. The questions to be settled include the enumeration and definition of the implied obligations of the shipping contract (especially with respect to the

1 The Marion Chilcott, 95 Fed. Rep. 688.

2 The Lizzie Burrill, 115 Fed. Rep. 1015.

The American Admiralty, by E. C. Benedict, 3d ed., § 309, but see The Guiding Star, I Fed. Rep. 347, at 348. In The Miami, 78 Fed. Rep. 818, Judge Toulmin dismissed a libel in rem by a "stowaway," seeking damages for personal injuries inflicted by the master, on the ground that the libellant was a trespasser and there had been no breach of a contractual or maritime duty owed him, declaring that the suit was not in the nature of an action upon the case (as contended by libellant), but an assault and battery and hence within Rule 16. This judge was also the author of the opinion in The Lizzie Burrill.

treatment due the mariner), the delimitation of the duration of the disabled mariner's right to cure and maintenance and of the period during which he is entitled to wages, and a decision as to the adaptability to the admiralty of the fellow servant doctrine.

Fitz-Henry Smith, Jr.

35 CONGRESS ST., BOSTON.

RESPONDEAT SUPERIOR IN ADMIRALTY.

THA

HAT there could hardly be greater injustice than to take A's property and give it to B because C has injured B seems clear, yet that is the result of the maxim respondeat superior plainly stated. It does not help the matter to explain that C was A's servant and was doing A's work at the time, if no fault can be brought home to A, either in the selection of his servant or in any other way. If this same act of C's is criminal, logic requires that A should also be liable criminally for the same act of his servant, but our courts have never gone so far as that. The common law courts have, however, carried this doctrine, according to Sir George Jessel, Master of the Rolls, " very far indeed," "quite far enough," and have been at times at great pains to introduce exceptions, mitigating the harshness and severity of it, whenever they could, as, for example, denying the liability of the master to a servant for negligence of a fellow servant. Mr. Justice Holmes, in two articles on Agency in the HARVARD LAW REVIEW,2 shows clearly the injustice of the maxim, and says in effect that it is a legal fiction resting on no ground of logic or good sense, but so entwined into our common law as to be ineradicable; that the reasons given for it by judges are neither good nor consistent. It would seem, then, that there should be no desire on the part of any one to extend a doctrine so unjust, but that the object should be to keep it within its present limits or even to restrict it. Judge Ware, in the case of The Rebecca,3 discusses admirably the question as a matter of natural law and justice, and says: "But as it is a rule founded merely in expediency and not in natural justice, except so far as the principal has derived a benefit from such acts, public policy must also determine to what cases the rule shall extend."

The purpose of this paper is to show that the doctrine has no place in the admiralty law, and that nevertheless it has been quite recently inadvertently and unnecessarily introduced and carried by the admiralty courts in certain directions even farther than at

1 Smith v. Keal, 9 Q. B. D. 351.
3 I Ware 187, at 206.

2 4 HARV. L. REV. 345; 5 ibid. 1.

common law, and that, having imported the doctrine in recent years into the maritime jurisprudence, the admiralty courts are now applying common law rules in trying to limit it, instead of applying at the outset the rules of the admiralty law governing such cases, which have been nicely adjusted and made uniform in various countries during centuries of commercial intercourse.

Actions in admiralty are divided into two great classes, actions in rem and actions in personam. Actions arising ex delicto may be brought either in rem or in personam. It is only with actions. arising ex delicto that we need concern ourselves, for respondeat superior in its proper sense does not apply in any other kind of action. Now, in actions in rem in admiralty for damage, or ex delicto, the liability of the res is a thing by itself, peculiar, unlike anything at common law: the res is personified, is sued and proceeded against and brought into the custody of the court, and is held liable on grounds which are entirely distinct and apart from the fault or liability of the owners. The liability of the res and that of its owners in personam are by no means coextensive and identical.1 For instance, a vessel under charter, though navigated by the charterer and his crew, is liable in rem for a collision, but the owners of the vessel would not be liable in personam.2 The vessel is treated as " an offending thing," and is liable in rem to those whom she injures without regard to the persons who are navigating her. The liability in rem does not depend upon the liability of her owners resting upon their responsibility for the acts of their servants. In other words, the liability does not rest upon respondeat superior at all. Judge John Lowell even went so far as to say that if a ship were stolen from her owners and navigated by pirates, she would be liable in rem for a collision occurring while so navigated, if she could be shown to have been violating the rules of safe navigation.3

1 Workman v. New York City, 179 U. S. 552, 573; Crisp v. U. S., etc., S. S. Co., 124 Fed. Rep. 748, 749.

2 Clifford, J. in The China, 7 Wall. (U. S.) 53-70; Homer Ramsdell Co. v. Compagnie, etc., 63 Fed. Rep. 845, 851; The F. C. Latrobe, 28 Fed. Rep. 377-379.

8 The Arturo, 6 Fed. Rep. 308, 313; The Malek Adhel, 2 How. (U. S.) 210, 233, 234; Sherlock v. Alling, 93 U. S. 99, 108; The China, 7 Wall. (U. S.) 53, 68; Ralli v. Troop, 157 U. S. 386, 402, 403; The John G. Stevens, 170 U. S. 113, 120; Workman v. New York City, etc, 179 U. S. 552, 573; The Barnstable, 181 U. S. 464, 467, 468; The Bulley, 138 Fed. Rep. 170; Henderson v. Cleveland, 93 Fed. Rep. 844, 846, 847; Thompson Nav. Co. v. Chicago, 79 Fed. Rep. 984, 985; The Belknap, 2 Low. 281-283; The R. B. Forbes, 1 Sprague (U. S. Dist. Ct.) 328; The Ticonderoga, Swa. Ad. 215; The Ruby Queen, Lush. 266.