Sturgis v. Boyer

THIS was an appeal from the Circuit Court of the United States for the southern district of New York.

It was a case of collision in the East river, at the southern extremity of New York, between the ship Wisconsin, propelled by the steam-tug Hector, on the one hand, and the Republic on the other. The narrative of the case is given in the opinion of the court.

The District Court condemned the ship and tug both, the claimants of which appealed to the Circuit Court by separate appeals.

The Circuit Court affirmed the decree of the District Court against the tug, to the amount of $2,364.74, with costs, but dismissed the libel with costs as against the ship.

The claimant of the tug appealed to this court, and the libellants appealed from the decree so far as related to the ship, which they wished to hold responsible as well as the tug. Both cases were argued together, and the opinion of the court covered both.

It was argued by Mr. C. A. Seward for the tug, Mr. Williams for the Wisconsin, and Mr. Bendict for the Republic. It was a triangular war. Mr. Seward contended that the Republic was in fault, but if not so, then the Wisconsin ought to be responsible, and not the tug; Mr. Williams contended that the Wisconsin ought in no manner to be blamed, but if there was fault upon that side, it was altogether owing to the tug; whilst Mr. Benedict was chiefly desirous to attach blame to the Wisconsin, as being the most responsible party. One or two of the points made by the respective counsel will be given.

Mr. Seward contended—

I. There is no sufficient evidence to charge the tug. The lighter might have avoided the collision. She saw the ship long before the collision-long enough to avoid her, and should have done so. But if not, then the ship alone, and not the tug, was responsible for the collision.

H. The ship was under the direction of her owners at the time. Next under them was their regular mate, who was on board, and had the general charge of moving the ship. To aid him, they sent on board Captain Ostrom, to take charge of the ship, and ten or fifteen men to man the ship, of whom he had charge, to do the labor, to unmoor the ship, and make her fast to the tug, steer her, and then to pull and haul to make her fast at her berth at Dover street. The owners sent the tug to do the labor of pulling and hauling in the river, there being a strong flood tide, and no wind. The captain of the tug had charge of the ship, so far as transporting her in the river. These were the three classes of servants of the owners, co-operating in moving the ship-all of them in charge for certain purposes. Of all of them, only one, the tug, is free from blame for negligence; against her there is not an allegation of blame from any quarter.

III. The mate of the ship was on board as acting master to move her, and ten or fifteen men were in the service of the ship 'had enough men on board to move the vessel.' The captain of the tug had charge of the ship only so far as transporting her in the river was concerned. The mate says: 'I was at work getting lines out, and ready to come alongside the dock. I had a boss stevedore on board. He was sent aboard to take charge of the ship; his name was William Ostrom. The captain of the ship was never on board when I moved the ship. I have often moved the ship without him.' It was his duty as mate, acting as master, to see that good watch and look-out was kept.

Actually on board the Wisconsin were the mate, Sinclair, Captains, Ostrom, Phillips, and Brower, and ten or fifteen men. None of them belonged to the tug except Brower. He was there aft, that he might easily communicate with the ship and tug. The mate gave no proper attention; he was forward, getting lines out. The most of the men were busy with him. Captain Ostrom was on the quarter-deck, giving no proper attention to his duty, though giving orders. The ship's man was at the wheel, but he is not produced as a witness. No one saw the lighter, coming as she was, with sails up, in full sight, at high noon, till it was too late. The mate saw her first, when she was but a short distance off, and her captain was swinging his hat and singing out. The mate first gave the alarm, when neither the lighter nor the tug could do anything to avoid the collision, as he himself says, for it was after the ship had sheered into her berth, and the tug had stopped her engine.

VII. The tug was not in fault; no negligence or mismanagement is alleged against her by any party or witness in the pleadings or proofs, and there should be no recovery against her for the collision, and her little fee for hauling the ship does not make her an insurer for the benefit of third parties. If, by reason of her being lashed to the ship, a decree must go against both, then, as they have answered and stipulated separately, the decree should be against the ship and her stipulators first, and contingently only against the tug and her stipulators.

If there can be decree against one alone, then the decree of the Circuit Court should be wholly reversed, and Wisconsin condemned, and the Hector discharged.

Mr. Williams, for the Wisconsin, made the following points:

I. In no view of the case can the ship be made responsible, or her owners liable, for the damages sustained by the lighter.

Sproul v. Hemmingway, 14 Pick. Reps., 71.

The Express, 1 Blatchford's Reps., 365.

1. She was lashed firmly to the side of the tug, and under the exclusive command and direction of the captain and officers of the tug. Neither the owners of the ship, nor any of their servants, nor yet her captain, nor any of her crew, had any power over or control of the ship. She was exclusively and immediately in the power of the tug, which was under the exclusive charge, control, and sole direction, of her master. Any act of the master or crew of the ship, had they all been on board and in full command, could not, in the least, have affected the course, speed, or movement of the ship, unless, indeed, the captain of the tug should first have been displaced, and the captain of the ship had been appointed in his place-an act that could have been done only by the owners of the tug, with the consent of the captain of the ship-a position which may have been illy adapted to his capacity.

II. To make the owners liable for such a collision would be to establish an entirely new principle of law.

1. It would not be an application of the principle, respondeas superior, for in no sense can the captain and crew of the tug be said to have been the agents or servants of the owners of the ship. They were in no sense under the control of, or subject to the orders of, the owners of the ship. But, on the other hand, they were the servants and agents, strictly the employees, of the owners of the tug, and owed obedience, and were amenable to on one else in the discharge of their duties.

If the owners of the ship could be liable for the misfeasance or malfeasance of the captain or crew of the tug, it would follow that the owners of the ship should have the right to appoint and remove the captain and crew of the tug-a doctrine that would not be contended for; not only that, but it must be established that they were appointed by, and held their respective offices from, the owners of the ship.

Laugher v. Pointer, 5 B. and C., 553, 554.

Milligan v. Wedge, 12 A. and E., 737.

Lucey v. Ingram, 6 M. and W., 302.

McIntosh v. Slade, 6 B. and C., 657.

Nicholson v. Mouncey, 15 East., 384.

Lane v. Cotton, 1 Salk., 17; 15 Mod., 472; 15 East., 392; Cowp., 754.

Rapson v. Cabitt, 9 M. and W., 710; 6 Moor, 47; 2 D. and R., 33.

Quarman v. Burnett, 6 M. and W., 509, 510, per Park, B.; 9 M. and W., 713; 6 Esp. N. P. C., 6; 5 B. and C., 559, 560; 4 M. and S., 29.

Randleson v. Murray, 8 A. and E., 109.

Storm v. Cartwright, 6 Term, 411; 3 Camp., 403; 5 B. and C., 554, per Littledale, J.; 5 M. and W., 414; 8 A. and E., 835.