Waring v. Clarke

THIS case was an appeal from the Circuit Court of the United States for East Louisiana.

It was a suit in admiralty, brought originally in the District Court for the Eastern District of Louisiana, by Thomas Clarke, as late master of the steamboat Luda, and as agent for her owners, against the steamboat De Soto and her owners, Waring and Dalman, to obtain compensation for the destruction of the Luda by means of a collision between said boats.

A libel, answer, and supplemental libel and supplemental answer were filed, which were as follows:--

To the Honorable Theodore H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana.

The libel and complaint of Thomas Clarke, late master of the steamboat Luda, of New Orleans (and agent of P. T. Marionoux, of the parish of Iberville, in Louisiana), and of T. J. Abel, of the city of New Orleans, owners of the said steamboat Luda, her tackle, apparel, furniture, and machinery, and who authorize libellant to institute this suit against the steamboat De Soto, her tackle, apparel, and furniture, whereof S. S. Selleck now is, or lately was, master, now in the river Mississippi, in the port of New Orleans, where the tide ebbs and flows, and within the admiralty jurisdiction of this court, and against Nathaniel S. Waring, Peter Dalman, and Parker, all residing within the jurisdiction of this honorable court, owners of said steamboat De Soto, and also against all persons lawfully intervening for their interest in said steamboat De Soto, in a cause of collision, civil and maritime; and thereupon the said Thomas Clarke, master and agent as aforesaid, alleges and articulately propounds as follows:--

First. That the steamboat Luda, whereof libellant was then master, was, on the first day of November last past, at the port of New Orleans, and destined on a voyage or trip from thence to Bayou Sarah, on the river Mississippi, about one hundred and sixty-five miles from the city of New Orleans, with lading of goods, wares, and merchandise, to the amount of _____ in value, or thereabouts, and several passengers, and was at that time a tight, stanch, and well-built vessel, of the burden of two hundred and forty-five [tons]; and was then completely rigged, and sufficiently provided with tackle, apparel, furniture, and machinery; and then had on board, and in her service, twenty-two mariners and fireman, which was a full complement of hands to navigate and run said steamboat Luda on the voyage above mentioned, and all the necessary officers to command said boat.

Second. That on said first day of November, 1843, the said steamer Luda, provided and manned as aforesaid, departed from the said port of New Orleans, being propelled by steam, on her aforesaid voyage to Bayou Sarah; and, in the prosecution of her voyage on the said river Mississippi, arrived at what is called the Bayou Goula bar, in said river, about ninety-five miles from the said port of New Orleans, on or about the hour of two o'clock, A. M., of the morning of the second day of November, 1843, and was running as hear to, or closely 'hugging' said bar, being on her starboard, as she could safely; whilst the said steamer was running in that position, pursuing the usual track which steamboats ascending the said river take under the circumstances, and going at her usual speed of about ten miles per hour, at the time aforesaid, within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of this honorable court, Garrett Jourdan, the pilot of said steamer Luda, who was then at the wheel, and controlled and directed said boat on said voyage, and Levi Babcock, also the pilot of said boat, and who was then on the hurricane-deck of said boat, observed the said steamboat De Soto, whereof the said S. S. Selleck was then master, of the burden of two hundred and fifty tons, or thereabouts, descending said river, being propelled by steam, and controlled and directed at the time by one James Wingard, pilot of said boat, who then had the wheel steering said boat in a direction parallel with, and at a distance from, the course then pursued by the Luda, sufficient to have passed the said Luda without touching; and at a distance of about nine hundred feet or more, and in that position, the said boats continued to run, the Luda ascending, the De Soto descending, the said river as aforesaid, until their bows were nearly opposite to each other, when, notwithstanding there was sufficient room for said boats to have passed each other without collision, and notwithstanding the said Luda was then in her proper position, running as near said bar as she could safely, said James Wingard, the said pilot of the De Soto, suddenly turned the wheel, and threw the De Soto out of her proper position, and changed her course nearly at right angle to the one she [had] been running, in a direction towards the Luda; and notwithstanding the pilot of the said Luda rang her bell, and threw her fire-doors open to apprize the De Soto of the situation of the Luda, the said pilot of the De Soto, either intentionally and wilfully, or most grossly, negligently, and culpably, ran the bow of the De Soto, with great force and violence, foul of and against the Luda, about or near midship on the larboard side, and thereby so broke and damaged the hull and machinery of the Luda, that the said Luda in a few minutes filled with water and sunk to the bottom of said river, in ten or twelve feet water, where she now lies a total wreck, worthless, and an entire loss; and so sudden did she fill with water and sink, that two of the crew, a white man and negro, were drowned, or are missing and cannot be found; the balance of the crew, officers, and passengers barely escaped with their lives, and were not able to save any thing of the freight on board, or any part of said boat, her tackle, apparel, and furniture, &c., or even their clothes, the whole being lost by reason of the said boat De Soto having run foul of and against the said Luda as aforesaid, and sinking said Luda as aforesaid.

Third. That at the time the collision and damage mentioned in the next preceding article happened, it was impossible for the steamer Luda to get out of the way of the said steamer De Soto, by reason that the former was in her proper position, running as near to, or closely 'hugging' said bar, as she could prudently and safely; that there was room enough for the said steamboat De Soto to steer clear of, and pass by, the said Luda, without doing any damage whatever, or coming in collision with the Luda; and that if the said James Wingard, the pilot of the said De Soto, had not changed the direction of the said De Soto, but kept her in her proper position as aforesaid, and had not refused, or at least carelessly and culpably neglected, to endeavour to keep clear of said Luda, which it was his as well as the officers' duty to do, of said De Soto, and which they might with ease and safety have done, the aforesaid collision, damage, and loss of life and property would not have happened; and libellant expressly alleges that the same did happen by reason of the culpable negligence, incompetency, or wilful intention of the said pilot and officers of the said De Soto.

Fourth. That the said steamboat Luda, before and at the time of being run foul of, damaged, and sunk by the said steamer De Soto, as hereinbefore mentioned, was a tight, strong, and stanch boat, and was, together with her tackle, apparel, and furniture, and machinery, worth the sum of fifteen thousand dollars; and that the books, papers, &c., belonging to said boat, and the property belonging to the officers and crew of said boat (exclusive of goods, wares, and merchandises on board of said boat), belonging to various persons unknown to libellant, as well the value thereof, were reasonably worth the sum of one thousand dollars; all of which was lost as aforesaid, and that by reason of the said steamboat Luda having been run foul of and sunk by the said steamer De Soto, as hereinbefore mentioned. Libellant, as master and agent of the owners of said Luda, has sustained damages to the amount of sixteen thousand dollars, which sum greatly exceeds the value of the said steamer De Soto; and for the payment of which sum the said steamer De Soto and her owners, the said Nathaniel S. Waring, Peter Dalman, and Parker, are liable in solido, and should be compelled to pay.

Fifth. That all and singular the premises are true and within the admiralty and maritime jurisdiction of this court; in verification whereof, if denied, the libellant craves leave to refer to the depositions and proofs to be by him exhibited in this cause; and libellant further alleges, that he has reason to fear that the said steamer De Soto will depart in less than ten days beyond the jurisdiction of this honorable court.

Wherefore libellant prays, that process in due form of law, according to the course of courts of admiralty and of this honorable court in causes of admiralty and maritime jurisdiction, may issue against the said steamboat De Soto, her tackle, apparel, machinery, and furniture; and the said Nathaniel S. Waring, Peter Dalman, and Parker, who is the clerk of said boat, may be cited, as well as all other persons having or pretending to have any right, title, or interest therein, to appear and answer all and singular the matters so articulately propounded herein. That after monition, and other due proceedings according to the laws and usages of admiralty, that this honorable court may pronounce for the damages aforesaid, and condemn the said Nathaniel S. Waring, Peter Dalman, and Parker, and all other persons intervening for their interest in said boat, to pay in solido the sum of sixteen thousand dollars to libellant; and also to decree and condemn the said steamer De Soto, her tackle, apparel, and furniture, to be sold to satisfy by privilege and preference the claim of your libellant, with his costs in this behalf expended, and for such other and further decree be rendered in the premises as to right and justice may appertain; and your libellant will ever pray, &c.