FEDERAL .REpORTER ,
to keepdo'Yn such an incursion of rats. The voyage was of omy 34 days, only the customary stops were made, and no explanation has been suggested, or seems possible. excepting those very liabilities to incursions from rats which were well known, and which it was the business ofthe ship to tMke provisions against. The washing out appears to have been for the purpose of clearing the ship of and with no special reference to any examination for rats; and the neglect may have been in the want of proper attention to them at that time, or in only a partial washing out. In view of the extraordinary damage, the burden of proof to satis1y the court remains upon the respondents. Notwithstanding the considerable testimony on the part of the ship, I am not satisfied of the sufficiency of the defense; and it is not necessary to determine whether the extraordinary damage was from lack of suitable examination for mts beforehand, or because the washing out was but partial, i. e., where the coaldust was lodged, or from the omission to fumigate, or an insufficient number of cats. I am constrained to the conviction that the ship did not take the necessary and usual precauhions, and for that rr.aSOll should bear the loss, even though the exceptions in the bill of lading, both as to vermin and as regards negligence, were held valid. The I8abella, 8 Ben. 139; Steven8 v. Navigazione Generale Italiana, 39 Fed. Rep. 562. vVithout referring to the other interesting points suggested by the respondents' brief, decree for the libelants, with costs.
THE EXPRESS. NEW YORK
MAIL S. S. Co. v. THE EXPRESS, THE N. BUCK, and THE CHARM.
NEW ENGLAND TERMINAL Co.
THE NIAGARA, THE N. THE CHARM.
(District Court, S. D. New York. June 24, 1891.)
AND TOW-JOINT RESPONSIBILITY. been fou!!d (44 Fed.. Rep. that th.ere was in the navigation ot the ShIp and tow (1) III not straightenlllg" down rIver, as reqUlred by law, W'ttl reasonable promptness; (3) because shortly before collision, when the N.'s course really clear, spe ported! in order to follow the tug, and thereby unnecessarily ran Into the E.; and It appearlllg that the N. had a master al'd crew on board in the performance of their duties, her quartermaster at the wheel, receiving orders from her master, and that the latter alone gave the final order which precipitated collisor master of assisting tug along-side being also on the bridge, and ion, tne the the officers of both the tug and tow were Jowt partlClpators both III the navlgatlOn of the N. and in the above specific faults; that both tug and tow were therefore answerable to the E.; and that the N. could recover but half her damages.
SAME · lD
. What constitutes joint participation in the navigation of tug and tow considered. reference to the language of BETTS, J., and of Mr. Justice CLIFFOIW, in Stur'yi8 v. Boyer, 24 How. 110; (opinion of BETTS, J., in note.)
Collision; tug and tow participating.
Carter &: Ledyard, for the Niagara. Wing, Shoudy & Putnam, for the Express. Robert D. Benedict, for the Starhuck and the Charm.
BROWN, J. In the former decision of the above causes, the Express was held without fault, (44 Fed. Rep. 392,) and the tugs Starbuck and Charm, which had the Niagara in tow, were held to blame. It did not seem necessary at that time to determine wbether the Niagara, which was in tow of those tugs, and came in collision with the Express, should also be held to blame; but, it appearing that there is no community of interest between the tugs and the Niagara, ancl that the value of the tugs is insufficiellt to pay the damage caused to the two vessels by the collision, it is necessary to determine the question whether the Niagara is also chargeable with fault; for, if she is blamable as between her and the Express, she is liable to the Express, and callIlot diminish to the latter's prejudice the fund derivable from the stipulation given by the tugs. Most of the facts are stated in the former opinion. The navigation of the Niagara was held to be in fault (1) for unnecessarily going to the lefthand side of the East river channel, near Corlear's Hook, and continuing her heading towards the left, though bound for New York shore; (2) not signaling or answering signals in time; and (3) for turning shortly before collision to the right, across the bows of the Express. ]i'or these fuults, save tbe want of signals, I think the Niagara was at least jointly to blame with the tugs. Ae respects the giving of signals, it was held in the catoe of The Einar, 45 Fed. Rep. 497, .500, that on the failure of the tug to give signals, it was the duty of the tow to direct them to be given; and in The City of Alexandria, 31 Fed. Rep. 427, it was held the duty of the tow having whistles to sound them. By the first fault the Express was em barrassed as to the Niagara's intentions; by the last, after the danger was over if the Niagara had kept her course, collision became unavoidable. In both these faults the officers of the Niagara were active participants. The final order, "hard a-port," which precipitated collision, was given by the master alone, and the previous slow turning of the Niagara in straightening down river arose, at least in part, through not hard a-porting long before; and as to that the master had and exercised such control as he saw fit. This case has no resem blance to that of Sturgis v. Boyer, 24 How. 110, because -there the master and crew were not on board, and had no participation in the faulty navigation. It wa" the same as to want of participation in the fault in the case of The John Fraser, 21 Huw. 184. In the former case CLU'FOHD, J., says expressly that"Both tug and tow are j0intly HallIe when those in charge of the resp"ctive veRseIs jointly participate in their cOlltrol alld man<1gement, and the master or crew of both are deficient in skill. omit to take due care, or are guiLty of negligence in their navigation." The Mabey, 14 Wall. 204. 211; The Maria
Martin, 12 Wall. 44; 1'he Virginia EhTman, 97 U. S. 309, ;)13.
If any doubt could exist as to what was meant in SturgiE v. Boyer, by "jointly participating in the control and management," it would seem to
be removed by reference to the opinion of BETTS, J., in the court below,t in which he had held the tow and tug jointly iri fault, because, upon
the facts in proof before him, he found that neither "vessel was strictly passive in the course pursued in its navigation, but, on the contrary, the officers of both took active and efficient part in direc:ting and controlling the movements of the 'tug." '* ,*. * "The ship's com pany," he says, "had sale charge of her helm and sails; and the master of the tug gave directions from her deck concurrently for her navigation. * * * It -cannot be said for the ship * * * that she did not participate with the tug in any voluntary action producing a collision. * * * The true doctrine subjects both tug and tow to responsibility to another ves-sel for injuries inflicted upon it by the joint action of the tow by means of their common fault." The facts were found otherwise in the circuit -court and iri,thesupreme court, viz., that "the ship was under the exclusive command and direction of the master of the tug, and that the -shipls master was notion board, nor any crew, and that the mate did not in any way interfere with her navigation, but waS otherwise employed." The Scranton, 5 Blatchf. 400; 24 How. 120. 121. The reversal was because the facts were otherwise than found by BEns, J" and the identical language used by Mr. Justice CLIFFORD in the passage above dted in regard to a joint liability would seem to be drawn from the opinion of Judge BETTS, and to be designed to express concurrence with his views, in this respect, upon the facts as he had sllpposed and found them. StrOtlRer even than the facts assumed· by Judge BETTS are the facts here, which Show a joint participation in the navigation of the tow; and, if this were not to be held such a case, I hardly perceive how any case ever likely to arise could be constrnetl as one of joint navigation; for the officers and crew of the Niagara were not only on board, but actively participating in her navigation. Her master was on the bridge, her quartermaster at the wheel, receiving his orders; and the very order that precipitated collision came from her master only. The pilot of the Charm was by his side, concurring in all his aets. It is plain, moreoOver, that the active co-operation of the officers and crew of the Niagara was necessary to the navigation of the ship, and that their help was expected and counted on by the tugs in her navigation. Besides those mentioned, others of the crew were stationed forward, as the master says, for any necessary emergencies. Without them, the ship would have been unseaworthy, for want of suitable equi]Jment for safe navigation. The Galatea, 92 U. S. 439. It is manifest that the tugs neither had nor exercised exclusive management or control. This is plainly not a case like that of the towage of canal-boats, in which the tugs take, and are -expected to take, the whole management of the tow into their own hands; but one of joint participation and direction. The captain, indeed, states that he considered the ship to be under the direction of the tugs and of the pilot of the Charm, who was on the bridge with him; but such an ()pinion, given alter collision, for the purpose of exonerating himself and
note at end of case.
his ship, is outweighed by the circumstances and by his acts at the time. The evidence shows that the master and crew were all the time exercising their functions, and were no more relieved of them by the presence of the master of the Charm than if hahad been a pilot,taken on board, in which case the liability of the ship is well settled. The China,7 Wall. 53. It was the duty of the master, as well as of the pilot of the Charm, to observe the statutory regulations made for the avoidance of collision, to straighten down river as soon as practicable, and not, in violation of the statute, to embarrass other vessels, nor run across their bows into evident collision. When the Starbuck made a move plainly leading to sure collision, it was the duty of the master to cut the hawser, and not port hard, as he did, in order to follow the Starbuck. A large steamer like the Niagara, nearly 300 feet long, with her master and crew on board, prosecuting and participating in her navigation for her own benefit and her owners', though in tow of a tug, is bound to take all needful precautions to avoid injury to others. This obligation is wholly independent of the question which is master and which is servant. This rule was recognized and enforced by the supreme court in the case of The Civ'ilta, 103 U. S. 699. Both are bound to be vigilant, and to do all that prudence and skill can do to avoid the destruction of life and property by collision in navigation. Large vessels, by reason of their size, moreover, have practical control, in a large degree, of the tugs attached to them. The Niobe, 13 Prob. Div. 55; The Doris Eckhoff, 32 Fed. Rep. 555. They are rarely without their full complement of ofIicers and crew, who continue their ordinary duties of navigation, as was evidently expeeted and done in this case. In maritime countries generally the tug is in such cases almost universally treated as the servant of the larger ship, which can direct and control her movements; and so :Mr. Justice GittER held in the case of The Creole, 2 Wall. Jr., 485, 512. But, whether this view be adopted here or not, the Niagara seems to me to be jointly answerable for this collision, within the strict line of cases from Stu.?'gis v. Boyer downwards, because her master and crew participated, not only in her navigation, but in the two specific faults that directly brought about the collislOn. Without commenting, therefore, upon the arguments su1Jmitted in regard to what was said in the case of The Doris Eckhoff, 32 Fed. Rep. 555, and without considBring to what extent the principle on which Sturgis v. Boyer was decided, as respects the remedy against the ship in rem, has been modified by subsequent cases in the Sll preme court, or supplemented by many of its justices, including Mr. Justice CLIFFORD himself; to what extent its application to cases like the present would work. injustice by absolving from liability the vessel that inflicts the injury; or to what extent it is incompatible with the general design of the act of 1851, (Rev. St. §§ 4283-4286,) which, since thr,t case was decided, has been developed and expounded by the supreme court as an adoption, in a large 11eral maritime law of Europe, whicb, in the navigation degree, of the g of chartered ships by the owner's consent, though the owner does not stand in the relation of principal, or incur any personal liability, nev-
ertheless looks to the ship in case of her faulty navigation as the offend. ing thing, which is at once the source of the wrong, the sponsor for indemnity, and the limit of liability; or to what extent that case is ill principle specially incompatible with the fifth section of the act of1851, (Id. § 4286,) which, as expressly making the ship liable for her navi 6ation for' her whole voyage, independent of the owner's control, might seem to include by implication towage under a tug's control for a small portion of a voyage, at the beginning or end of it, as the greater ineludes the less; or to what extent it is compatible with the principle or policy of any maritime law that an owner hy any form of contract, whether of towage or otherwise, should be allowed to procure the navigation of his vessel to be effected without liability on her part for the injuries she inflicts on innocent third parties by her faulty nl1.vigation, or to substitute the liability of another man's tug of much inferJ0f val ue for the liability of his own vessel for such damages, to the prc::incIlCe of others, thus abolishing, at his mere volition, pro tanto, the generalla w of maritime liens allowed for the security of third persons; and leaving the discussion of these questions to a time when they are necessarily involved,-I apportion the damages between the Niagara and the tugs, and allow judgment for the Express against both the tugs and the Niagara, with costs.
NOTE. The following is the opinion of BETTS, J., in tbe case of Sturgis v. Boyer, above referred to, (Tbe Wisconsin and Tbe Hector,) in the aistl'ict court. After reviewing the facts, and finding the libelant's lighter not in fault, the opinion proceeds, (volume 23, notes of BETTS, J., 12',:) "BETTS, J. The second inquiry demands a consideration of the pro\Jeedings by the ship and steam-boat, and whether they are chargeable witb culpable acts of omission or commission of a character to render tbem jointly responslUle to the libelant for the injuries sustained from them. In my opinion, the balance of testimony proves that the tow was approaching the lighter further out in the river from the New York piers than the lighter, she and the tow aiming to come to nearly at the same point. It was mid-day, and there was no impediment in the river to a clear view of the position and course of the lighter by those navigating the tow, and warning was given the tow from the lighter time enough to enable the tow to have stopped her way, or diverged from it sufficiently to secure the safety of the other vessel. The differing opinions l)f the witnesses as to the motion of the tide at the time of collision, and also as to the headway of the respective vessels, seem to be controlled by the fact that the barrels of flour thrown into the river by the upsetting of the lightevfloated down the stream. Upon that condition of thingA, it is manifest that the exercise of reasonable diligence and caution on the part of the managers of the tow, wben tiley ought to have been aware they could not prudently attempt to make he.' berth by going ahead of the lighter, throws upon the tow the responsibility for all damages inflicted upon the lighter by reason of continuing that movement. The injured party, in case of collision. has, as a general principle, a right to hold the vessel which is the direct and immediate cause of the wrong answerable to him for it, (The Neptune, 1 Dod. 46i,) and this without regard to the question of the personai participation of the owner of a colliding vessel in the culpabie a' ts. When she is in motion in the pursuit of her lawful calling, she carries with her the responsibiltty of her owner for the acts of his agents, to whom she is intrusted, to the same extent as if she was under his personal direction. Abb. Shipp. pt. 3, c. 1. Nor does it matter whether the propulsion is by the agency of sails or sweeps, or that of steam-tugs fastened to her, and used to the same end, because the steam-power thus applied may be justly regarc.ed only as a substitute for other physical means of navigation. lteevesv. The Constitution, 1 Gilp. 5i9; The Express, Olcott,258. A ship under towage by a steamer lashed to her side is chargeable for damages wrongly o<;oasioned another vessel by striking while under way against her. 'The Carolus, 2 Curt. 69. The answers filed, respectively, by the owner of the ship and the tug are in direct conflid upon the question whether the navigation of the tow was under the control of the officers of the one vessel or the other; it being averred for the ship that she was exclusively in the hands and under the command of the officers of the tug at the time of collision, and asserted on the part of the' tug, with equal positiveness,
that she was placed under the exclusive orders and control of the ship, and wa" employed solely for the purpose of supplying the motive power for transporting thu ship from one pier to the other, and the tug and her crew were therein subject to and obeyed the orders of tbe master and officers of the ship alone. It is unnecessary to speculate upon the consequences that would legally follow the establishment of that defense, because, in my opinion, the testimony does not show that either vessel was strictly passive in the course pursued in its navigation, but, on the contrary, the officers of both took active and efficient part in directing and controlling the movements. of the tow. I am inclined to consider the primary responsibility rested upon the ship, she being the vessel actually colliding upon the lightel'; but I also hold the tug was responsible for the direction given the ship, through the agency of her officers, concurring with those of the ship. "This court decided in the case of The Express, Olcott, 258, that the tow, being separate from the tug, and coming in contact with another vessel by her own fanlt, was liable for the damages thus inflicted in a suit against her alone; and, although the decree was reversed on appeal upon a new state of facts proved in the circuit court fixing the fault wholly upon the tug, (1 Blatchf. 365,) yet that doctrine was explicitly adopted by Judge NEI,SON, who says: 'In all such cases, at least, there exists a common obligation by the tug and tow to make every reasonable effort to avoid the danger and a common reRponsibility in ease of neglect.' In that case the appellate court corrected the decision below, because the liability was imposed by its judgment on the tow, when the culpable acts were committed by the tug solely, without any faulty concnrrence on the part of the tow, upon the declared principle that both vessels were under a common obligation ill their respective positions to employ every reasonable effort to avoid damage, and nnder a common responsibility for it in case of faulty omission to do so. 1 BIatchf. 367. The contingency anticipated in that decision arises in this case. The ship and the tug were united together, and were moved as one body. The ship'B company had sole charge of her helm and sails, and the master of the tug gave directions from her deck concurrently for her navigation and that of the tug, and the helm of the ship was employed in a common naVigation of the two vessels, Neither of the two, as they were connected and conducted, had any movement or action separate from the other, but employed concurrently the means at their command to a common end; and it cannot be said, therefore, for the ship, if the fact be of any moment in this case, that she did not participate with the tug in any voluntary action producing a collision. The admiralty court in Lower Canada (The John Counter, 18 Law Reports, L. C. 553,) held the steam-tug exclusively responsible for a collision of her tow with another vessel when the tow was hauling by a line clear of the tug, and the damage was caused by the sole fault of the tug, although she did not come in contact with the injured vessel. In The Carolus, 2 Curt. 69, Judge CuRTIS adjudged the colliding ship, propelled by a tug, answerable for a collision caused by her, when the tug was not joined in the suit, without raising a question as to the liability of the ship. "In the circuit court of Pennsylvania a distinction is taken which I do not meet with in any other adjudication between the responsibilities for collision when small steamtugs are employed to tow large vessels, and large tugs are engaged in towing small craft, barges, etc. In the first class of cases, when injuries arose to other vessels by collision with a large tow through the misfeasance or culpable inattention of the tug, the consequences are made chargeable exclusively upon the ship, the tug being regarded as her servant or agent, acting under her authority; and that no Buitfor collision can be sustained against the tug for damages so accruing from collision by her tow. Smith v. The Creole, 2 Wall. Jr., 41:55,511,512. The Sampson, 3 ArneI'. Law Reg. 337. The entire navigation and movements of the two vessels is held to be at the risk of the ship. The principle of these rulings would apply to the present case, and would fasten on the ship the liability for damages inflicted upon the lighter. I am impressed with the persuasion that the true doctrine subjects both tug and tow to responsibility to another vessel for injuries inflicted upon it by the joint action of the two by means of their common fault. I am in no way convinced that the marine law dispenses either from liability to others for their mutual acts of misfeasance or omission upon navigable waters, as upon that area it is most important to the safe transportation of persons and property that every vessel propelling herself or another by motive powers within herself, or invoking or using such motive powers supplied by another, should be accountable for the consequences of the injurious misuse of such locomotion to the Bame extent as when she is acting separately and alone. It inures to the general security that the risk of that connection with such extraneous agency shall be imposed upon the parties so employing it, and that those suffering from its use should be entitled to indemnity therefrom against all the actors concerned in the wrong. "A case decided in this court in June term, 1855, by Judge INGERSOLL, is cited as establishing a different ruling, and exonerating the tug, and imposing the loss upon the party in tow on her side, when a collision was caused in their movements. I have obtained a cleal'er statement of that .case from the files of the court, and find that the question mooted in this case could not have appropriately arisen in that. The owners of a lake boat in:tow along-side of the tug (the Catherine) waB met anl;! run against on the East river by another small boat or barge in tow along-side a tug, (the Birkback,)
and a colliaton ensued
FEDERAL REPORTER, vol. 46.
the lake boat and the barge, and a joint action in per-
tug Catllerine, to recover the damages so incurred. The court dismissed the libel as to the tug. Catherine, and awarded damages as against the owners of the Birkback. If tile points involved in the present case were brought in discussion on the hearing or decisioll of that case, it could hav,e been argumentatively only, and the decision necessarily would not affect the question in issue here. In my judg-ment, upon the facts and proof before the court, both the ship and tug were jointly actors in the tort committed upon the lighter, and the libelants are entitled to theil' recompense fNm the joint tortfeasors to the amount of loss so sustained. "
sonam was prosecuted by the ,libelants against the owners of the Birkback and of the
THE CIAMPA EMILIA. THE F. W . VOSBURGH." SOMERS v. THE CIAMPA EMILIA et al. CIAMPA v. THE F. W. VOSBURGH.
(District Court, D. New Jersey. July 13,1891.)
COLLISIOX-VESSEL AT ANCHOR-TUG.
A dredge was anchored in the middle of the channel of the Delaware river, with proper lights burning. A ship towed by a tug carne up the river. The tug, at a distance of a mile and a half of the dredge, shaped its course so as to pass to westward of the dredge, and steadilymaintained that course. The ship in charge of its own master and crew was so carelessly steered that it did not follow the course of the tug, but collided with the dredge. Held, that tbe ship, and not the tug, was responsible for the collision.
In Admiralty. Henry R. Edmunds, for libelant. Wing, Shoudy & Putnam, for the Ciampa Emilia. Hyland & Zabriskie, for the Vosburgh. GREEN, J. This suit is brought to recover damages sustained by the dredge Arizona, owned by the libelant, in a collision with the ship Ciampa Emilia. On November 2, 1888, the dredge Arizona was engaged in dredging out the channel of the Delaware river, at Mifllin bar, a few miles below Philadelphia. About 10 o'clock on the evening of that day she was run into by the ship Ciampa Emilia, and. sustained considerable damage. The ship was being towed. by the Vosburgh on a hawser from 40 to 45 fathoms in length. The night was clear starlight, the wind fresh from the south.east, and the tide strong flood. The dredge was anchored abtmt in the middle of the channel, with the proper lights set, and was so placed that on either side there were at least 250 feet of water, averaging in depth 20 feet, in which deeply laden-vessels could be safely navigated. The only question involved in this case is one of fact. The legal principles applicable are perfectly well settled. It was plainly the duty of the Vosburgh to tow the ship in such carefui manner that she would clear any obstruction in the course takeIJ, if carefully and promptly man-