Pacific Maritime Magazine - Marine Business for the Operations Sector

Cruelty at Sea

 

July 1, 2020



Life at sea for seamen a century ago was not like it is today. Physical cruelty and abuse by a ship’s officers occurred far too often. Sometimes, a physically abused seaman sought and won a recovery from his vessel owner employer. When reading an older case, such as Kohilas v. Rolph Navigation & Coal, Inc. 293 F. 269 (N.D. Calif. 1923) aff’d. 299 F. 52 (9th Cir. 1924) it is hard to imagine the facts alleged were true. Unfortunately, they were.

The Brutal Facts

The Rolph, a 230-foot barkentine, began a voyage in Vancouver in October 1920 with Hansen serving as the first mate. Hansen was 285 lbs. of “all bone and muscle” and, according to the district court’s opinion, had “a reputation for ferocity as wide as the seven seas.” After signing onto the vessel, Hansen was aboard for three weeks before the vessel sailed. During that time, he was arrested for a drunken assault on some stevedores, and then fought and overcame the entire stevedore gang loading the vessel.

During the first leg of the voyage, Hansen beat the sailors so severely that upon arrival at Melbourne, Australia, most of the crew left the vessel and went to the American consul who released them from service on the Rolph on the ground of Hansen’s cruelty. A new crew signed on at Melbourne for the next leg of the voyage to Newcastle, New South Wales. When the vessel arrived at Newcastle, that crew left but not due to Hansen’s cruelty but rather due to a strike. Another new crew, which included Kohilas and fellow sailors, Kapstein, Arnesen, and Seppinnen, signed on at Newcastle.

Shortly after the vessel departed Newcastle en route to Chile, Hansen began his physical abuse of Kohilas and Kapstein. Hansen continually struck them with his fist as well as with belaying pins and pieces of scantlings. He hit Kohilas with a bucket causing Kohilas to suffer a split lip. He regularly beat the sailors on the head and shoulders with a knot tied on the end of a piece of rope. Hansen struck Kohilas across the eyes with the knot which caused Kohilas to fall to the deck. Thereafter, Hanson inflicted repeated blows to Kohilas’s face and eyes. After being beaten by Hansen, Kohilas requested medical treatment from the captain. The captain denied the treatment, and verbally abused Kohilas.

Kohilas was ordered to continue his work although he was nearly blind from the beating by Hansen. He could not perform his duties. As punishment, Hansen tied Kohilas’s arm to the wheel of the bilge pump. According to the district court, if Kohilas’s fellow sailors had not held him up, his arm would have been broken or torn from the socket.

When the Rolph arrived at Antofagasta, Chile, all of the sailors went ashore and reported Hansen’s beatings to the American consul. The consul ordered the captain to come to his office. The captain appeared and brought Hansen, who was then fired. However, Hansen was not taken into custody by the captain and brought to an American port for trial as required.

While on shore in Chile, Kohilas again requested medical treatment from the captain but did not receive it. Eventually he and another crewmember were sent as passengers to San Francisco by the American consul to testify against Hansen. In San Francisco, Kohilas finally obtained treatment for his injuries. He had lost sight in one eye and had minimal vision in the other precluding him from ever working as a sailor. As a result of the beatings by Hansen, Kapstein lost the hearing in one ear.

The District Court Lawsuit

Kohilas, Kapstein, Arnesen and Seppinnen (the latter two had been assaulted by Hansen but not injured) sued their vessel owner employer in the federal court in San Francisco. As its first defense to Kohilas’s claim, the vessel owner argued his loss of vision was the result of syphilis. The district court rejected this defense finding the loss of vision was clearly of traumatic origin.

The vessel owner also argued it should not be held liable because the captain was not aware of the beatings by Hansen. The district court rejected this defense on multiple grounds. First, it noted Hansen’s violent temperament was well-known by sailors in every Pacific port. Second, it did not believe the captain did not know of Hansen’s character because Hansen was arrested for violence before the Rolph left Vancouver to begin the voyage. Third, it was undisputed that the crewmembers who signed on at Vancouver were released at the next port, Melbourne, due to Hansen’s mistreatment of them. Finally, the district court reasoned the master spent most of his time on the forward poop deck, which was about 100’ from the forecastle, and found the allegation about the captain’s lack of knowledge to be “trifling with this court.”

In its decision, the district court cited the importance “to the manifest destiny of this republic” of attracting young men to a seafaring career. It noted the buildup of the merchant marine requires a body of seamen, and recognized the class of merchant seaman who had been shipping out was high. Accordingly, it held seamen on an American ship must not be subject to cruel treatment.

The district court recognized that under both English and American law, a vessel owner is liable for injuries suffered by a seaman as a result of the unseaworthiness of the vessel on which he was working. Historically, the injured sailor was entitled to recover only wages, maintenance and cure. However, the district court held if cure is not provided to the best of the captain’s ability, the resulting damages were also recoverable. In this case, Kohilas’s requests for medical treatment were denied by the captain. Further, the district court held the captain violated a statute by failing to transport Hansen in irons to an American port to face criminal charges. Finally, the district court found the Rolph to be unseaworthy. It held 1) seaworthiness means not only the vessel is “staunch and strong” but also is properly manned; and 2) the hiring of Hansen as the first mate rendered the Rolph unseaworthy. The court awarded $10,000 to Kohilas, $3,500 to Kapstein, and $500 each to Arnesen and Seppinnen.

The Appeal

The vessel owner appealed the adverse judgments to the Ninth Circuit. The Ninth Circuit agreed with the district court and upheld the judgments. It based its decision on the principle of seaworthiness. Like the district court, it found the Rolph was unseaworthy. It reasoned a seaworthy vessel must not only be strong, staunch and fit for the intended voyage but also properly equipped which included a “generally competent” master and crew. It concluded a vessel is not properly equipped when the first mate is known to “be of a most brutal and inhumane nature” and to “give vent to a wicked disposition by violent cruel and uncalled for assaults upon sailors.” The Ninth Circuit stated a seaman can have a high degree of skill in seamanship and navigation but also be incompetent for a supervisory role which requires fairness toward subordinates.

At time of the incident, it was customary for a vessel’s captain rather than the vessel owner to choose the crew members including the first mate. The Rolph owner argued it did not know the vessel was unseaworthy due to Hansen’s violent nature and should not be held liable for the captain’s choices. The Ninth Circuit disagreed. It held the captain selects the mate as the representative of the vessel owner and as part of the vessel owner’s non-delegable duty to make the vessel seaworthy. Therefore, if the captain hired an incompetent crewmember rendering the vessel unseaworthy and personal injuries resulted from the unseaworthiness, the vessel owner would be liable.

Finally, the vessel owner argued Kohilas’s recovery should be limited to wages, maintenance and cure. The Ninth Circuit rejected this argument too. It held a seaman has the right to recover wages, maintenance and cure under all circumstances unless the seaman engaged in willful misconduct, and the right to recover for other damages is a separate right not extinguished by a claim for wages, maintenance and cure.

Postscript: After being paid his wages in Chile, Hansen fled the Rolph. Sometime later, he was arrested, tried, and convicted in Seattle, Washington for violence against the seamen. He served a five-year jail term. According to documents found at the Maritime Research Center library, part of the San Francisco Maritime National Historical Park, Capt. A.H. Sorenson served as the master of the Rolph from 1919 until 1924, the year the Ninth Circuit affirmed the judgment against the vessel owner. He had a reputation for drunkenness and eventually was relieved of his command of another vessel after his tenure on the Rolph. He worked as a watchman for a lumber schooner and in 1938, his dead body was found floating in the Oakland Estuary. His widow hired a maritime lawyer to obtain Longshore and Harborworkers’ benefits. She was awarded $200 for burial expenses and $4.20 per week for compensation. The lawyer was awarded $75 for fees.

Marilyn Raia is a shareholder in the San Francisco office of Bullivant Houser Bailey. She has been certified as a specialist in admiralty-maritime law by the State Bar of California Board of Legal Specialization. She can be reached at marilyn.raia@bullivant.com.

 
 

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