
    SUPREME COURT — IN ADMIRALTY.
    Friedreich Burrmeister vs. Heinrich Seyer.
    The master of a ship, wlio permits his mate to inflict an unjustifiable and excessive beating upon a seaman in his presence, is responsible to said seaman in damages for the assault.
    Before Justice Robertson, at Chambers.
   This is a libel, iñ a cause of damage, filed by Friedreich Burrmeister, lately employed as a seaman on board of the whaleship “ Republik,” now lying in the port of Honolulu, against Heinrich Seyer, master of said ship, in which the libellant claims to recover damages for an unlawful assault and battery alleged to have been committed upon him, on board said ship, on the 27th of February last, by the chief mate, in the presence, at the instigation, and with the approval of the said master, the present respondent; by which battery the libellant alleges that he was ruptured, and permanently injured.

It appears by the testimony in the cause, that’ on the 27th of February the “ Republik ” left the harbor of Honolulu to proceed on a cruise; that shortly after the pilot left the vessel outside of the port, the master or the mate accused a seaman named Weddley, who was on the starboard side of the quarterdeck, of having gone to the Bremen Consul in Honolulu to make complaints ; and upon Weddley having denied the charge, the master struck him several times about the face and upper part of the body ; that when struck Weddley said Burrmeister, who was on the larboard side, had been to the Consul, whereupon the chief mate assaulted Burrmeister, striking him repeatedly with his fists, knocking him down, or causing him to fall on the deck, and then kicked him, or stamped on him twice, when the master interfered, telling the mate not to kick the libellant, but that he might or should chastise him in some other way; that the mate then ceased to strike Burrmeister, who got up and went forward into the forecastle ; that in a few minutes after-wards the master and the mate went together and called Burrmeister up on deck, to assist in cat-heading the anchor; and that Burrmeister immediately obeyed and went to work as ordered, when the master told him he should not go below without leave, and struck one or two blows, adding some threatening language, addressed to all the crew, expressive of his intention to discipline them.

Several of the allegations in the libel are not proven. For instance, the libellant alleges that by the blows and kicks inflicted upon him he was ruptured in the abdomen and permanently injured. But it appears by the testimony relative to this point, that the libellant was ruptured before the time of this assault, and was in the habit of wearing a truss during the last cruise of the ship. So that while it is probably true, as testified by a witness wbo saw tbe libellant’s rupture both before and after the beating in question, that the rupture was somewhat enlarged in consequence of the kicks and fall which he sustained; the allegation that the rupture was originally caused thereby, is clearly disproved. It is due, however, to the proctor who prepared the libel to say, that he stated in the course of his argument, what is quite probable, that the error had arisen from the difficulty he found in communicating with his client, who speaks only the Dutch language.

It is also alleged in the libel, that at the time the assault Avas committed on Burrmeister, the master and the mate were in a state of gross intoxication. But, it gives me pleasure to say, I regard this allegation as conclusively disproved by the e\údence ; and I consider both the master and the mate entirely and satisfactorily cleared from an imputation so derogatory to their good name and character as officers.

It is, however, clearly in proof, that an assault and battery was committed on the libellant by the mate, in the presence, at the instigation, and with the approval of the master, shortly after the steam-tug had left the ship outside of the port. The only reason assigned at the time for the beating of Burrmeister was, that when in port, he had gone to the Consul of Bremen to make some complaints of bad treatment; and no other excuse or justification appeared before me at the hearing. It seems hardly necessary for me to say that the reason assigned affords no justification whatever for beating the libellant. To hold that it is a justification would, it seems to me, be an outrage against right and common sense ; and the promulgation of such a doctrine, by this Court, would probably result in the inauguration of the reign of tyranny and terror, on board of a large portion of the whaling fleet frequenting this ocean. What the fruits would be of such a system, may be inferred from the fact that the immediate result of the beating of Weddley and Burrmeister for the reason assigned, followed by the threatening language of the master, was a mutiny by the men of the watch to which they belonged, near midnight, and so much disorder on board, that the master was obliged to put back with his ship to Honolulu.

It is certainly better, so far as the interests of navigation are concerned, that seamen should have free scope, while in port, to make their complaints, whether well or ill founded, to the Consul placed here by the country under whose flag they sail, for the purpose, inter alia, of hearing' those complaints, than that they should be led to feel that they can have no redress for their grievances, save that which they may be able to obtain by resorting to violence.

March 12, 1860.

Mr. Harris, proctor for libellant.

Mr. Bates, proctor for respondent.

In the case now before me, the respondent is plainly chargeable with a flagrant abuse of his authority. So far from protecting the libellant from the violence of the mate, which it was his duty to have done, he first set the example himself by beating Weddley, and then instigated and approved the conduct of his chief officer in beating Burrmeister, until the latter had received several kicks on his prostrate body, when he interfered and objected to that mode of chastisement. Again, the respondent was wrong in striking Burrmeister while at work on the forward part of the ship. From the circumstances there can be no doubt that fhe libellant had occasion to go below at the moment, and he returned to the deck immediately on being-called, and went about his work. Not a particle of evidence appears to show insolence or disobedience on the part of the libellant, and the master'was therefore unjustifiable in striking him. Had the beating inflicted upon Burrmeister by the officers been merited by reason of his insubordination, or other misconduct, it could not perhaps be designated as cruel or unusual, but as the case stands, it was harsh and inexcusable.

In view of all the circumstances of the case, I shall award the libellant the sum of one hundred and fifty dollars damages, and the costs of suit-. _

Let judgment be entered accordingly.  