
    District Cout.MAINE,
    July, 1824.
    
      Elwell v. Martin et al
    
    Assault and Battery. Rights of Master and Seaman. ¡
   Ware, District Judge.

This is a libel for an assault and battery, brought by Elwell, one of the crew of the brig Mentor, against Martin, the master, and Storer and Fales, the two mates. Elwell complains against the respondents that on the 25th of June last they jointly made an assault upon him with great violence, and inflicted, among other injuries, the very serious one of dislocating his left shoulder. To this libel the respondents have put in several answers, admitting and justifying the assault as necessary and proper correction to punish the mutinous and disobedient conduct of the libellant, and denying that the dislocation of the arm was the effect of their assault. Elwell, in his replication. re-affirms the matters stated' in his libel, with considerable amplification, and denies the sufficiency of the justification. The cause has been very fully ánd ably argued on both sides, and now stands for decision.

The affair which gave- occasion to this prosecution took place at Turks Island, after the brig had loaded, and was in the act of departing from the port.

[The learned Judge here gave a minute account of the testimony ; but the law of the case may be distinctly understood from what follows. It is sufficient to state, that the sailor having been drinking on shore, was refused the usual allowance of grog, when he came on board—that he demanded it of Fales the second mate, with much insolence. That he brandished in his hand an open knife, with which he had been eating his dinner, using threatening language : Fales struck him again with his stick—he put up his knife and dared Fales to a fight: Fales-clenched him, -and a scuffle ensued. Sto-rer, the chief mate, came up and parted them, and ordered Elwell forward. He refused, with an oath, to go till he had his grog. The Captain came on deck, and, inquiring if there was mutiny, kicked Elwell three times ; the third time with such violence as to prostrate him on the deck, and then called out to confine him. As he was rising on his feet, the captain and both mates seized him, cast him down, and lashed him to the boat, or a spare topmast on deck. He was confined in that situation one hour, apparently in much pain, and then released by Storer, and sent below. The injury to the shoulder was done when he was the second time thrown on the deck; but the nature or degree of the injury was not ascertained till fourteen days afterwards, when he arrived in Portland. It was stated by the surgeons that it would be two or three months before he could recover the use of his arm, and that it would always be more liable to a similar injury.]

The affray commenced between Elwell and the second mate, Fales. When Elwell, after his grog was refused, continued to demand it, and refused to go forward on his order, Fales took upon himself to chastise him for his insolence and disobedience. That Fales was correct in refusing to deliver the customary allowance of grog, is admitted. It seems to have been in conformity with the orders of the captain. But it is not equally clear that he is as fully justifiable in assuming to himself the authority of inflicting corporeal chastisement on the man for his disobedience, when the captain was at his elbow. It was not a case where the safety of the vessel or the discipline of the crew required the instant exertion of such authority. And it may be here remarked, that though the law does indeed justify the master in chastising on the spot a reluctant or disobedient seaman, I am not aware that this authority is extended to his subordinate officers, when he is present, especially to the lowest on board the vessel. Such things, often without doubt, are done and pass off, and if the punishment were merited and not unreasonably severe, I do not say that Courts will give much encouragement to a seaman who should ask for damages. But I am now inquiring for the legal rights of the subordinate officers in the presence of the captain, and I am free to say that I do not know the law which in such cases invests the inferior officer with such powers. The ancient sea laws are curiously directory in fixing the limitations of this authority in the captain, and the authority itself is .in some of them rather suggested than directly given. Consulat de la Mer. s. 416. Laws of Oleron, art. 12. Cleirac, p. 48. Laws of Wisbury. art. 24. Ordonance de la Marine, b. 2. t. 1. art. 22.; 1 Val. 447. But there is not within my recollection .an intimation that any such authority is entrusted to the inferior officers of the ship. I am by no means satisfied that the interests of commerce, the security of navigation, or the good discipline of ships^crews require it.- On the contrary, it seems to me that such a distribution and extension of power would be the parent of confusion rather than order, and by breaking in upon the unity .of authority, would tend rather to the relaxing, than the sustaining of good discipline. To me it seems that a good ship master should allow no person but himself to inflict a blow on a seaman in his presence.

If such be the law it takes, some shades from the misconduct of Elwell in the scuffle which took place between him and Fales. It does not excuse him from persevering in the demand of his grog after it had been refused, much less does it excuse his insolence and disobedience to his superior. If he was aggrieved, his appeal lay to the master. But he was probably conscious of the propriety of the officer’s conduct, and well satisfied that the refusal of Fales would be confirmed by the captain. It, however, places Mr. Fales, when he commenced the assault, in the legal attitude of an aggressor.

When Storer came up and parted the combatants* he was merely in the execution of his official duty, but the libellant added to the aggravation of his previous misbehaviour, the refusal to obey the proper and just order of this officer.

When the affray commenced, the captain was in the cabin. He was called up by the noise on deck, and asked if there was mutiny, to which one of the officers replied that it looked like it. This was the only inquiry he made into the cause or nature of the quarrel. But as he was within hearing during the whole, he may well be supposed to have understood the origin and character of the affray. He proceeded to punish the delinquent on the spot.

It is not difficult to state in general terms the nature and extent of the master’s authority in such cases. It is his duty to preserve discipline on board his ship, and it is his right to correct the disobedience or insolence of a seaman by moderate chastisement; his authority in this respect being analogous to that of a parent over his children, or a master over his apprentice. Abbot on Shipping, 187. Am. ed. vol. 1. p. 447. But though there is little difficulty in stating the right of the master in general terms, it is not so easy in practice to fix the precise point at which a just and wholesome exercise of domestic discipline passes into a criminal abuse of power. In such cases I am not insensible that the condition of the captain is to be looked upon with indulgence. The occasion that calls into activity his authority, usually requires that it should be exercised often with promptitude, under circumstances of strong excitement, with but little time for reflection, and little opportunity of weighing in critical scales the just amount of punishment against the magnitude of the offence. Something under such circumstances is to be indulged in his favour to-the infirmity of human nature. To hold him responsible fur what another person, who looked on as a cool and unconcerned spectator, might'think a moderate excess, would be trying his conduct by too severe a test:’if would give too much encouragement to not the best class of mariners to enter prosecution for'trivial injuries, and have a tendency to break down all authority and discipline. It was very justly urged by the libellant that the greatest discretion is not to be expected from the humble condition of a common sailor, but that the usefulness of the class to which he belongs, his hard services and small reward, and the .character of frankness, and thoughtless impetuosity, which seems ■ to be naturally created by the nature of his employment, justly require that we should look on his failings with sentiments of kindness, and not severity. To this argument it may be replied, with equal truth, that when the misbehaviour of the seamen has called into action the correctional power of the master, the like reasons claim for him a like indulgence of judgment in favour of the necessary exercise of discretionary authority.

In the present case there was misbehaviour on the part of the libellant that unquestionably justified correction, and the truequestion is whether, in inflicting summary justice, the officers have passed the limits beyond which the indulgence of the law cannot consistently with justice and sound policy follow them. In my opinion, they have. It has been-argued for the respondents that the master under the circumstances having the right to chastise Elwell, that the mode of punishment being a legal and proper one, and the dislocation of a limb not being intended, nor likely to occur in the mode of correction adopted, the officers ought not to be holden responsible for an accidental and unexpected injury. There is certainly a great degree of plausibility in this mode of considering the case. But will the facts warrant it 1 When the master in this way takes his stand upon his strict legal rights, I must be permitted to say that he showed, as is perhaps too apt to be the case, quite as much alacrity as was suitable in resorting to severe measures. From all the evidence the dislocation seems to have been effected when Elwell was thrown down to be lashed. The master and both mates had then hold of him, and assisted in laying him down, and making him fast. With such odds as the strength of three against one, it would seem that with ordinary caution in the application of their force, Elwell might have been secured without the employment of such violence as must have been exercised to produce the injury he sustained. That degree of violence was unnecessary and unwarrantable, and if an injury was done beyond what was intended, though as happening partly from misadventure, it may not call for vindictive, no reason is perceived why the authors of it should, not be holden answerable for actual pecuniary damages. Under all the circumstances, to this amount, I think the damages ought U be limited.

It is contended, on the part of the respondent’s counsel, that whatever may be the decision as to the master, Storer and Falcs, who acted in obedience to his order, can in no event be held responsible. They would indeed be justified in confining Elwell, and this was the> extent of the master’s order. But in executing it, if a, serious injury was inflicted from their unnecessary harshness or want of caution, they must be held to answer for it. They were jointly engaged in doing the wrong, and I do not perceive any reason why they should not be held to respond the damages. Decree, $80 damage— no costs.  