Strout v. Foster/Opinion of the Court

This case comes before this court upon an appeal from the decree of the District Court for the eastern district of Louisiana.

The appellees, owners of ship Harriet, filed their libel, in the court below, for collision, and upon the trial the court rendered a decree in favour of the libellants, for $2701 7 cents. By the evidence it appears that the Harriet had passed over the bar through one of the passes or outlets at the mouth of the Mississippi river, outward bound, on the 26th of May, 1836, and came to anchor near the bar. The Louisville, lying below a distance of several miles, weighed anchor with a fresh and favourable wind for coming in, through the same pass; as she approached the bar the wind died away, and the current being stronger than usual, owing to a strong wind from the south the night before, she drifted and ran afoul of the Harriet. These passes, it appears, are intricate and difficult to navigate, and subject to counter and under currents. If the wind die away when a ship is coming in, she is certain to drift and become unmanageable. Knowing these facts, a prudent master would never anchor his vessel in the thoroughfare of one of these passes. The evidence shows, however, that the master of the Harriet did anchor his vessel immediately in the thoroughfare, and that, too, after having been run afoul of by another vessel about a year before, at or near the same place.

There are four possibilities under which a collision may occur:

First. It may happen without blame being imputable to either party; as when the loss is occasioned by a storm, or any other vis major. In that case the misfortune must be borne by the party on whom it happens to light, the other not being responsible to him in any degree.

Secondly. When there has been a want of due diligence or skill on both sides, in such case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both.

Thirdly. It may happen by the misconduct of the suffering party only, and then the rule is, that the sufferer must bear his own burden.

Lastly. It may have been the fault of the ship which run the other down, and in this case, the injured party would be entitled to entire compensation from the other. The Woodrop Sims, 2 Dodson's Rep. 83.

The third rule here laid down, it seems to me, applies with great force to the case under consideration, the misconduct on the part of the master of the Harriet, in anchoring his ship immediately in the thoroughfare, is fully made out by the proof; while, on the contrary, there is no fault proved, going to show mismanagement, want of skill, or negligence on the part of the master of the Louisville. It is true that the opinions of some nautical men, found in the evidence, show that it was possible for the Louisville to have avoided the collision, had every thing been done that it was possible to do. But the law imposes no such diligence on the party in this case; so far as the Harriet was concerned, the Louisville was entitled to the full use of the thoroughfare of the pass; the master of the Harriet having obstructed it, with a full knowledge of the danger of doing so, has been guilty of such misconduct as to deprive the appellees of the right of action against the appellants. 3 Hunt's Con. 230.

It was insisted by the counsel of the appellees, that the Harriet being at anchor, and the other ship under sail, that the latter was therefore liable. It is true, if a ship be at anchor, with no sails set and in a proper place for anchoring, and another ship under sail occasions damage to her, the latter is liable. But the place where the Harriet anchored was an improper place, and therefore the appellees must abide the consequences of the misconduct of the master. Wherefore, it is decreed and ordered that the decree of the District Court be reversed, and held for naught, and that the appellants recover of the appellees their costs in this behalf expended; and it is further decreed and ordered, that this case be remanded to the District Court, with instructions to dismiss the libel of the libellants.

Dickins and Hellen, for the appellants.

Coxe, for the appellees.

The reporter was not present at the argument, and has been furnished only with the notes of Mr. Dickins.

Dickins laid down the following propositions:

1. The sea is a public highway or thoroughfare, equally free to all persons and all nations.

2. All persons navigating the high seas have an equal right to sail through, or anchor in any portion of them.

3. All persons navigating the high seas, as aforesaid, are bound to take notice of all such vessels as may have come to an anchor; and so to navigate their vessel as not to run afoul of, or otherwise injure those at anchor.

4. If a vessel under sail runs afoul of a vessel at anchor in the nigh seas, the vessel in motion is bound to pay all damages.

5. If the universal right of all vessels navigating the high seas to anchor in any part thereof has been restricted, either by law or custom, and they are prohibited from coming to an anchor in certain places, unless at their own risk, it is incumbent upon the party claiming the benefit of such restriction or prohibition, to prove its existence clearly and conclusively; and also to prove, with equal clearness and certainty, the fact, that the vessel complained of was anchored in such prohibited place, and that all ordinary diligence was used by those on board of the vessel in motion, to prevent the accident; otherwise, they will not be released from the payment of the damages sustained by the vessel at anchor.

6. The universal right of all persons navigating the high seas to anchor wherever they may happen to be, or in any place they may think proper, has never been and cannot be restricted, but in certain particular local jurisdictions.

7, and last. If a vessel under sail comes unawares upon one at anchor, they are both bound to use every possible exertion to prevent a collision; and if either is deficient in that respect, it is bound to bear the loss: but should a vessel under sail knowingly and voluntarily attempt to pass one at anchor, and, in so doing, run afoul of her, and thereby cause her to sustain loss or damage, the vessel under sail, although she may have used every possible exertion to prevent the damage, but at a time when it was too late to avoid the collision, is bound to pay all the losses sustained in consequence thereof by the vessel at anchor.

In support of the fourth proposition, he cited Jacobsen's Sea Laws, (edition by William Frick, in 1818,) p. 339: 'A ship, which, under full sail, occasions damage to another which has no sail set, is liable for all damages.'

To sustain the fifth proposition he cited Lock v. Seward, 4 Carrington and Payne, 106; and Foot and Reynold v. Wiswall, 14 Johns. 304: and for the seventh, Jacobsen's Sea Laws, 107, art. 36; 1 Bell's Comm. 580; Story's Commentaries on Bailments, p. 385; 3 Kent's Com. 230; Story as above, 381, 382; Collinson et al. v. Larkins, 3 Taunt. 1; Haggitt v. Montgomery, 5 Bos. and Pul. 446; Verplank and another v. Miller and another, 1 Moody and Malkin, 69; Yates et al. v. Brown et al., 8 Pick. Mass. Rep. 83; Hawkins v. Dutchess and Orange Steamboat Company, 2 Wend. 452; Snell, Stagg and Co. v. Rich, 1 Johns. 305; Dodson's Admiralty Cases, 471, the case of the Neptune.

That all possible diligence should have been used by the Louisville, he cited Story on Bailments, 334; 3 Pardessus, 79, ¶652; 1 Wash. C. C. R. 142; Stone et al. v. Retland, 4 Martin's La. Rep. (new series,) 399; Martin et al. v. Blythe, 1 McCord, 360.

The court being equally divided, the judgment of the Circuit Court was affirmed.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs.