Smith v. Condry

THIS case came up, by writ of error, from the Circuit Court of the United States, for the District of Columbia, and was argued at January term, 1842. The court held it under a curia advisare vult, and pronounced their decision at the present term.

The facts in the case were these.

The plaintiffs in error, who were also plaintiffs in the court below, were the owners of a vessel called the Francis Depau, which was lying in the port of Liverpool, on the 15th of February, 1838, loaded and ready for sea. The barque Tasso, owned by the defendant, in coming out of the docks, ran foul of the Francis Depau and occasioned considerable damage. A suit was brought in consequence, and upon the trial the verdict of the jury was for the defendant. The following bills of exception were taken by the plaintiffs, upon which the case was brought up.

Plaintiffs' first bill of exceptions:

In the progress of this cause, the plaintiffs having offered evidence to prove that on the 15th of February, 1838, the barque Tasso, the property of defendant, in coming out of the dock at Liverpool, on her way to sea in the prosecution of her homeward voyage to the United States, ran foul of and occasioned damage to the Francis Depau, a ship belonging to plaintiffs, and inflicted damage and injury upon the vessel of the said plaintiffs; and having further given evidence tending to prove that said collision was the result of unskilful management on the part of the Tasso.

The defendant gave in evidence the statutes of 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6 Geo. 4, c. 125; and further proved that there was on board the Tasso, at the time of her moving from the dock and until after said collision, a regularly licensed pilot of said port of Liverpool; that the said vessel was under the management and direction of said pilot, and that the directions and orders of said pilot were followed and obeyed on board said vessel, the Tasso; that the master of the Tasso was not on board her during the time of her moving from said dock into the river; and that such absence of the master was usual and customary on such occasions.

The defendant upon said evidence prayed the court to instruct the jury, that by the true construction of the statutes of Great Britain, 37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and the 6 Geo. 4, c. 125, produced on the trial, the defendant is not responsible to the plaintiffs in this action for any damage occasioned by the default, negligence, or unskilfulness of the pilot proved to have been on board the Tasso; which opinion the court gave as prayed, to which the plaintiffs, by their counsel, excepted.

Plaintiffs' second bill of exceptions.

In the trial of this cause the plaintiffs produced a competent witness, and offered to prove that the ship of the plaintiff, mentioned in the declaration, at the time of the injury complained of, was loaded with salt and ready to sail for the Georgetown market, and that if the ship had then sailed she would in due course have arrived in Georgetown (as was intended when her lading was taken in) in due time for the sale of the cargo at the fishing season of the Potomac river, when there is a great demand for salt; and that the loss occasioned by the injury in the delay of the vessel, preventing her arrival till after the fishing season, as she was compelled to unload and take in another cargo of salt, amounted to between 10 and 11 cents per bushel, making the loss in the whole cargo $2101 20, and contended that they should be allowed to give this evidence and to recover damages for the said loss, estimating the salt by the price at Georgetown in the fishing season when the vessel would have arrived.

But the court refused to allow the said evidence to be given by the plaintiffs, to which the plaintiffs, by their counsel, excepted.

Plaintiffs' third bill of exceptions.

And the plaintiffs having, after the foregoing evidence, farther offered evidence to prove that it is the usage of vessels coming out of the docks of Liverpool into the river to have their anchors slung in a tackle ready to be thrust over the bows, and in a situation to be dropped immediately on passing through the lock connecting the lock with the basin, and before passing from the latter into the river; that the anchor was not put over the bow nor attempted to be so done in the present case, on board the Tasso, until this vessel had passed into the river and was approaching the Francis Depau; and the defendant having offered in evidence the deposition of Frederick Lewis to prove that the Tasso, in passing from the basin through the piers thereof into the river had the said vessel in check by a hawser extending therefrom to one of the said piers, which hawser parted as the vessel cleared the pier head, and that the fish pennant or tackle suspending the anchors of said vessel broke in the attempt to get them over the bow of the vessel as aforesaid, and they thereupon fell upon the deck of the vessel; and the plaintiffs having further offered evidence by the pilot of the Francis Depau, to prove that defendant's vessel appeared badly furnished, and that the mate thereof (the master being absent) at the time, declared that he had not a rope on board fit to hang a cat.

And in a further trial of this cause, the plaintiffs, after the depositions for the plaintiffs and defendant were read, having offered evidence to show that in the management of a vessel when the fish tackle breaks, and it is important that the anchor should be thrown out, that it ought to be and can be accomplished in a short time by fixing another rope by a strop to the anchor and heaving it over the bows, and that such new fixture can be applied in a minute or two.

And the defendant having offered the following prayer—

'That if the jury shall believe from the evidence that the collision between the Tasso and the Francis Depau was occasioned by the breaking of her hawser and fish tackle, yet, from the said facts, the jury are not warranted in inferring that the said vessel, the Tasso, at the time of her sailing, was unseaworthy,'

The court gave the instruction as prayed, to which the plaintiffs, by their counsel, excepted. And the plaintiffs then prayed the court to instruct the jury, that if they believe from the evidence that the collision took place as above stated, then such breaking of the said hawser and tackle is no excuse for the collision on the part of the defendants; which the court refused, to which refusal also the plaintiffs excepted.

Mr. Chief Justice TANEY delivered the opinion of the court.