But the mate being the immediate agent and representative of the master his very right hand as it were-acting within his view and under his personal direction, I think he ought not to be considered the fellow servant of the men in the forecastle, within this rule, but rather the locum tenens of the master and owner for whose negligence, resulting in injury to any of the crew while in the correct discharge of their duty, the vessel and master ought to be responsible.

The relation between the master and sailor at sea is more of a parental character than that between the employer and employee on shore-particularly in the great transportation lines, workshops and factories of modern times, and therefore the former may and do rely more for their safety and well being upon the foresight and personal direction of those in authority over them than the latter. Again, an employee on shore, who is unwilling to incur the risk arising from the negligence or want of skill of a fellow-servant may ordinarily quit such employment, but a seaman must remain on board, at least until a port is made, however unskillful or negligent the mate may be.

In the argument for the respondent and claimants, significance was sought to be given to the fact the libelant was aloft in his oil skins and gum boots and by way of the rigging instead of "shinning up the backstays." But in this instance it is too plain for argument that the libelant's fall was not in any way attributable to the amount of clothing he wore or the way in which he went aloft, but solely to the means he adopted of supporting himself while there-the resting his whole weight upon the crane line without being aware of its condition. From the evidence and the very nature of the case I am satisfied that it was just as proper, and much easier and safer, to have climbed up the rigging and swung out on the backstays to cast off this stop as to have shinned up the stays for that purpose. Under ordinary circumstances an active, light man might adopt the latter way, while a heavy, logy one, particularly at night in rough weather, would very naturally prefer the former.

The second point made by the libelant is not so easily disposed of. It is the well settled law that a seaman receiving an injury or becoming sick in the service of the ship without his fault is entitled to be cured or cared for at the expense of the vessel. (Harden vs. Gorden, 2 Mass. 547; Reed vs. Caufield, 1 Sum. 197; The Ben Flint, 1 Abb. U. S. R. 128; Brown vs. Overton, Sprag. Dec. 462.) And the fault which will forfeit this right upon the part of the sea

man must be some positively vicious conduct, such as gross negligence or willful disobedience of orders. Ordinary negligence, consistent with good faith and an honest intention to do his duty, is not sufficient. (Reed vs. Caufield, supra, 206; The Ben Flint, supra, 130.) The propriety and good policy of this rule is eloquently vindicated by Mr. Justice Story, in Harden vs. Gorden, supra, 547; and in the application of it a Court of admiralty will not be quick to find cause to exclude the seaman from its benefits.

The libelant, notwithstanding his want of caution in going upon the crane line, was clearly entitled to be cared for at the expense of the ship, and the question now is what was the nature and extent of this obligation. It is not contend-. ed by counsel for the libelant that the ship ought to have been furnished with a surgeon or that the master should have had more than ordinary knowledge and experience in ascertaining or treating fractures of the leg. But it is claimed that if the master had exercised ordinary skill and care in the examination and treatment of the libelant's leg he would have ascertained that the thigh bone was fractured and have been able to set it so that it would not now be three inches short; and also that it was the duty of the master under the circumstances to have gone into the nearest port -Valparaiso-where it is admitted that proper surgical aid and appliances could have been obtained. Upon the evidence it is very uncertain what time it would have taken to reach Valparaiso from the place where the accident occurred, a distance of 18 degrees east and 5 degrees north. Counsel for the libelant argues that it might have been done in eleven days, but the calculation upon which this conclusion is based assumes that the vessel might have changed her course from about northwest to east and made about four miles an hour to Valparaiso.

Now there is no evidence in the case as to the force or direction of the wind between the locality of the accident and the latter place and we are therefore left almost to conjecture as to the time that would have been consumed in making the detour. The burden of proof is upon the libelant to support his allegation that the master failed to do his duty toward him in this respect. If it had been shown that the vessel could, under the circumstances, make about ten miles an hour and thereby have made Valparaiso in a little more than five or six days it might have been proper for the master to have gone in there-indeed, I think it would have been his duty to do so. But as it is, I do not think that it would be safe to assume that this port could have been made in less

than two weeks, and I do not think that the vessel was under obligation to make that sacrifice of time and risk of cargo for the libelant.

In Brown vs. Overton, supra, the libelant fell from aloft and broke both his legs.below the knees. The master set them as well as he could and yet they were permanently deformed and disabled. The accident happened 25 days' sail from St. Helena and the course of the vessel was within eight or ten hours of that port, but the master refused to touch there for surgical aid. Mr. Justice Sprague held that it was the duty of the master to have gone in although it was doubtful whether the deformity could have been prevented or cured at that late day. No other case at all in point has been cited on this question; and while it proves it is the duty of the master to seek surgical aid for a wounded seaman while there is any chance of its being useful, yet it by no means follows that it is his duty to do so at any sacrifice or risk to the vessel or voyage. There must be some limit to the obligation to seek aid outside of the vessel. A fall from aloft is an incident of a seafaring life, and the law can scarcely be that in such a case surgical aid must be sought to the serious hindrance or delay of the voyage and the liability of the cargo to depreciation in the port of destination or the delay or loss to some important enterprise undertaken upon the faith of its due delivery.

It is also urged by counsel for the respondent that under the circumstances any departure from the prescribed course of the voyage to obtain aid for the libelant would have been a deviation and caused a forfeiture of the insurance upon the vessel and cargo. The rule of law is that a delay by departure from the due course of a voyage to save property merely is a deviation, but to save life is not. (Crocker vs. Jackson, Sprague's Dec. 142; The Boston & Cargo, 1 Sum. 335; The Ewbank & Cargo, Id. 424; Bond vs. The Cora, 2 Wash. 84.) Whether a departure in such a case as this can be considered as made to save life may be a question. As between the insured and insurer, if there is any doubt about it, it should be resolved in favor of the former. I have found no case exactly in point, and in the meantime will say with Mr. Justice Washington, in Bond vs. The Cora, supra, that "I will not be the first Judge to exclude such a case from the exceptions to the rule," that a deviation works a forfeiture of the insurance. But the law in the interest of humanity will, as between the insurer and insured, justify a departure from the course of the voyage to save life in cases where the vessel is under no legal obligation to do so; and

therefore even if the Chandos might have gone to Valparaiso to save the life or limb of the libelant without forfeiting her insurance, it does not follow that the master was bound to make such departure. For the like reasons, and stronger, which excused the master from going into Valparaiso he was not bound to put into any port south of San Francisco, and when he reached the point-39.30 north latitude, 140.20 west longitude-from which it was convenient to make the latter port, he was quite as near the mouth of the Columbia as the Golden Gate and was therefore justifiable in preferring the former as it was on the course of his voyage.

As to the treatment of the libelant on board the Chandos it does not appear that there is any just ground of complaint, unless it be that the master ought to have ascertained that his leg was broken before he did, and at once. His own testimony is to the effect that he did not conclude the leg was broken until July 4, and that is the entry in his log. But of the truth of this I am in doubt, because it appears that he treated the limb as if it was broken, as far as the appliances within his command would permit. He had the leg bandaged with splints and put in a box the next day after the accident. His present explanation of why he used the box is that it was to keep the leg from "slatting" (rolling) around with the motion of the ship; and that very circumstance, it seems to me, ought to have led to an examination that would have disclosed the fact that the femur was fractured. Still it does not appear that the master with the means at his command could have cared for the leg any better than he did even if he had been certain that it was fractured.

From the evidence it appears that the fracture was caused by the fall from the crane line to the boat and striking on the foot, and therefore it was probably oblique and attended with more or less displacement-the upper part of the bone turning upwards and the lower part pushing downwards and backwards and by the other. (2 Holmes Sys. Surg. 861.) In such a case it appears from the books that if the subject is an adult whose muscles are not paralyzed, and therefore offer the ordinary resistance to extension, more or less shortening from to 1 inches-will always be the result, even where the case is treated by skillful surgeons with the best appliances; nor will a shortening in such case of even three inches necessarily imply unskillful treatment. (Hamilton's Prin. and Prac. Surg. 291; Id., Frac. and Dislo. 397; 2 Holmes Surg. 865; 1 Elwell's Med. Sur. 97.),

It only remains to consider the case after the arrival of the

Chandos in the Columbia river. And, first, it is well to state that the obligation of the ship to take care of the libelant, and do what could be done for him under the circumstances, continued until the vessel arrived at Portland, the end of his voyage, and even longer if the libelant still required nursing or medical treatment. And the fact that the libelant was entitled to admission into the marine hospital at Portland did not excuse the ship from this obligation, because that was his personal privilege or right, which he might avail himself of or not, as he saw proper. As was said of Mr. Justice Strong, in Reed vs. Caufield, supra, 200202, the hospital service in the ports of the United States does not supercede the marine law on this subject, but is only auxiliary to it, and notwithstanding this, the seaman is entitled "to be cured at the expense of the ship of the sickness or injury sustained in the ship's service. The expenses incurred in the cure, whether they are of a medical or other nature, for diet, lodging, nursing or other assistance are a charge on, and to be borne by, the ship; and when the cure is completed, at least so far as the ordinary medical means extend, the owners are freed from any further liability."

When the Chandos arrived at Baker's bay, according to the testimony of the experts, there was still a chance that the leg might be reset so as not to be more than one and a half inches short. At least the libelant was still on his back from the effects of the injury with a leg which was manifestly three inches short. Under the circumstances it was the bounden duty of the master to have procured surgical aid and advice at once and see if anything could be done to give the unfortunate man the use of his limb. This aid could have been obtained from Fort Canby, which was almost within hail, or Astoria, only a few miles distant, or by sending the libelant to Portland.

But the master left the vessel at once and after reporting the case to the collector at Astoria, who it seems advised that the libelant be kept on board until the vessel reached Portland, washed his hands of the matter and proceeded to the latter place on business, without even making arrangements for a surgeon to visit the libelant on board the vessel; upon his return to the vessel on August 14, four days afterwards, he informed the libelant what the collector said and added that the libelant was now in the hands of the collector and that he, the master, had nothing to say, but advised him to remain where he was as it would cost him $40 to go to Portland, besides the risk of moving from boat to boat.