After the findings of fact, conclusions of law, and judgment in
this case were filed, two successive motions for a new trial were
made on behalf of defendant, whereupon the former findings were
withdrawn and new and amended findings and opinion filed.
Held that, as these amendments were made at defendant's
request, the existing conclusions of law and judgment were not
thereby disturbed.
The evidence adduced shows that the facts found were sufficient
to warrant the court below in holding that the collision in the
Mississippi River at New Orleans, whereby the Transportation
Company lost a vessel, was the result of the negligence of the
officers in command of the United States vessels.
There was also culpable negligence in the United States officers
in anchoring in an unusual and improper position.
Upon the findings made, the Transportation Company was not
chargeable with contributory negligence.
On October 17, 1894, the St. Louis and Mississippi Valley
Transportation Company filed in the Court of Claims a suit by way
of petition against the United States in pursuance of the
provisions of the Act of August 3, 1894, alleging that said company
was a corporation of the State of Missouri, and the owner
Page 184 U. S. 248
of the towboat
Future City, her barges in tow and
freight earning; that, owing to a collision on May 5, 1888, in the
Mississippi River between said steam towboat and barges and war
vessels of the United States, several of the barges, with their
cargoes and contents, were sunk and wholly lost, and the freight
earnings of such barges for the voyage in progress were lost, or
not earned and paid to the claimant, and that said collision and
the loss and injury resulting therefrom were solely and directly
the result of negligence on the part of those in charge of the said
vessels of war, and claimed damages in the sum of $24,308.
The United States appeared in said Court of Claims by its
Attorney General, and filed an answer traversing and denying the
allegations of the claimant's petition. The case was so proceeded
in that, on March 21, 1898, the court found for the claimant, and
adjudged and decreed that the St. Louis and Mississippi Valley
Transportation Company should have and recover of and from the
United States the sum of $19,808.85.
On March 21, 1898, the court filed findings of fact and
conclusion of law. Subsequently, to-wit, on May 14, 1900, the court
filed an order withdrawing its former findings of fact, and filed
new and amended findings in lieu thereof.
On May 21, 1900, an appeal was prayed for and allowed to this
Court.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
After the findings of fact, conclusions of law, and judgment
were filed by the Court of Claims on March 21, 1898, two successive
motions for a new trial were made on behalf of the defendant. The
result of these motions was that, on May 14,
Page 184 U. S. 249
1900, the court filed an order withdrawing its former findings
of fact, and filed new and amended findings and opinion, and it is
now contended that, by such action in amending its findings of fact
and modifying its opinion the court must be deemed to have set
aside its judgment. But as the amendments of the findings were made
at the request of the defendant in connection with the motions for
a new trial, we think that the existing conclusions of law and
judgment were not thereby disturbed. Obviously the changes or
modifications in the findings at the instance of the defendant were
intended by the court to enable the case of the defendant to be
most advantageously presented for review by the court below on the
motions for a new trial, and by this Court on appeal. The motions
for a new trial having been overruled, the judgment rendered on
March 21, 1898, remained as the judgment of the Court of Claims,
and that is the judgment from which the defendant appealed, and
which is now before us for review. By taking such appeal, the
defendant must be deemed to have admitted the existence and
finality of the judgment. Nor is it perceived that the defendant
has any reason to complain that the findings, on which the
conclusions of law and the judgment were based, were amended at its
instance. So far as the amendments were at all material, they were,
in some instances. favorable to the case of the defendant, and at
all events must be regarded as a proper exercise of authority by
the trial court in making its findings conform to the truth, while
its record had not passed out of its control by the allowance of an
appeal.
The material facts found by the Court of Claims were as follows:
the
Future City and the barges comprising her two were all
staunch, sound, and seaworthy, and were fully and adequately
manned, officered, and equipped, and the
Future City was
ample, powerful, and able to handle her tow under any and all
circumstances arising in the navigation of the Mississippi River.
On May 7, 1888, the
Future City with her tow was
descending the river and approaching the port of New Orleans with
the intention of making a landing, and while so descending the
river, the
Future City followed the proper and customary
course of navigation for descending towboats with tows. A
towboat
Page 184 U. S. 250
with a tow bound for the port of New Orleans, and pursuing the
proper and customary course for such vessels, cannot make out and
see vessels and other objects lying in that portion of the river
below a point of land at Celeste Street and between the western
shore and the middle of the stream, because that point and the
buildings standing upon it, and the shipping moored along its
banks, intervene and completely shut off the view in that
direction.
Upon rounding the point of land at Celeste Street, the
Future City for the first time sighted five United States
vessels, to-wit, the
Atlanta, Galena, Ossipee, Yantic, and
Richmond, lying at anchor below the said point of land and
between the western bank of the river and the middle of the stream.
The
Future City could not have made out and discovered the
United States vessels before, because the said point of land
intervened and, with the buildings upon it and the shipping moored
along its banks, completely shut off the view in the direction of
the portion of the river where those vessels lay at anchor. As soon
as she sighted and discovered the United States vessels lying at
anchor in her usual and proper course, the
Future City
backed under a full head, working full stroke, with all the power
she had, thus adopting the only course feasible and proper in the
circumstances, or in any wise calculated to prevent her from
colliding with the United States vessels. On account of the
insufficiency of time and space after she discovered the United
States vessels, and notwithstanding that she made every possible
effort to keep clear of the United States vessels, and, in order
that her tow might extend out into the river as short a distance as
its length would permit, backed her stern as close to the New
Orleans shore as it was in anywise possible without coming into
collision with the shipping moored therealong, and notwithstanding
that she was skillfully and properly handled and managed by her
officers and crew, the
Future City was unable, on account
of the short distance intervening, either to check her headway or
to straighten up, and still being in a flanking position, she and
her tow were carried by her headway and the current of the river,
and barge 73, the leading barge of her tow on the port side, came
into collision with the
Atlanta,
Page 184 U. S. 251
striking against the ram of that vessel broadside on with great
force. As a result of this collision, barge 73 was cut down and
sank with all her cargo.
Thereafter, notwithstanding that the
Future City
continued to pursue the only course feasible and proper in the
circumstances and in anywise calculated to avoid further collisions
with other of the United States vessels, and continued to back with
all her power, and notwithstanding that she was skillfully managed
and handled by her officers and crew, yet her stern having been
swung slightly down stream by the collision of barge 73 with the
Atlanta, she was unable to check her headway or straighten up, and
was carried by her headway and the currents of the river, and barge
68, the leading barge on the starboard side, collided with the
Galena, and was sunk with all her cargo. Notwithstanding
that the
Future City was skillfully and properly handled
and that she and her officers and crew did their utmost to control
her remaining barges and to prevent further collisions between them
and the United States vessels, barge 50 broke loose and was carried
by the current, and came into collision with the
Richmond,
and thereby sustained great damage and the loss of part of its
cargo.
The United States vessels, as they lay at anchor on May 7, 1888,
were ranged in an irregular line along the western bank of the
river, which is the city side, their distances from said bank
varying from 500 to 700 feet. The
Atlanta was anchored
highest up stream, and was about 150 feet below the Richard Street
Ferry, and the entire fleet extended down the river for the
distance of about one mile-the
Richmond lying off and
about opposite the barge landing. At Celeste Street, the shore
extends into the river to a sharp point, and the river bends from
that point to the north. Just below, the width of the stream is
about 1,800 feet. The location of the
Atlanta, 600 feet,
or a little less, from the New Orleans shore, put that vessel in
the track of tows entering the harbor from above. It was in the
pathway of a tow of even less length than the plaintiff's at that
particular place engaged in flanking down to the landing. The upper
vessel was at the entrance to the harbor, and the fleet was located
in the way of all vessels descending and seeking
Page 184 U. S. 252
to land in the neighborhood of the barge landing. When the
United States vessels were first sighted or discovered by the
Future City, the
Atlanta was distant from her
about 150 yards.
The positions occupied by the United States vessels were
directly in the track of towboats with tows descending the
Mississippi River bound for the port of New Orleans and pursuing
their proper and customary course of navigation, and were thus
directly in the track, of course, of which the
Future City
and her tow were pursuing when she first sighted and discovered
them. The positions thus occupied by the United States vessels were
improper and unusual by reason of their being higher up stream, too
short a distance below the point of land at Celeste Street, not at
the bank, but nearer to the New Orleans or western shore in the
river, than the proper, usual, and customary anchorage grounds for
such or other vessels or than vessels had ever before been known to
occupy while at anchor. By reason of their being anchored so high
up the river such short distances below the point of land at
Celeste Street and so close to the New Orleans shore, and by reason
of their swinging at anchor, they rendered the navigation of the
river by towboats with tows, pursuing their usual and customary
course, hazardous and extremely dangerous. On May 7, 1888, and
prior thereto, there was an abundance of good and suitable
anchorage ground lower down the river and nearer its eastern or
Algiers shore, where it was usual, customary, and proper for
vessels to lie at anchor while at the port of New Orleans, and
where the United States vessels could have lain at anchor in
perfect safety and without rendering the navigation of the river at
the port of New Orleans either hazardous or dangerous for any
vessels pursuing their usual, proper, and customary courses. Good
holding ground for vessels like the men-of-war to safely anchor at
all times existed within twenty feet of the Algiers shore. The
United States vessels came to anchor in their said positions on or
about May 5, 1888, while the
Future City, with her tow,
was descending the Mississippi River on her voyage from St. Louis,
and none of her officers or crew had notice or knowledge of their
presence at New Orleans, or of their whereabouts, or of the manner
in which they were anchored, until
Page 184 U. S. 253
they were sighted and discovered after the
Future City
had rounded the point of land at Celeste Street. There is a clear
and well defined custom at New Orleans respecting the course and
practice of tows to land. Descending tows come close to the shore
on the city side of the river. If they did not pursue this course,
descending tows would come down in the current so far out that the
motive power could not back the tow to land. One of the reasons for
coming in close to the shore is to catch the slack near vessels
moored to the shore.
Under the laws of the State of Louisiana, there existed at the
time of this occurrence a board of five harbor masters, who were
charged with the duty of "regulating and stationing all vessels in
the stream of the River Mississippi within the limits of the port
of New Orleans and at the levees thereof." Among the rules and
regulations adopted by the board and at that time in force was one
prescribing that
"the harbor masters have authority by law to regulate, moor, and
station all seagoing or coasting vessels at the levee, and to
remove them from time to time to make room for others, and of the
degree of accommodation which one vessel shall afford another the
harbor master is constituted sole judge,"
and another which provides that
"all vessels arriving at this port shall notify the harbor
master of the district or leave word at the central office, where
the place of landing will be designated; otherwise they will be
removed at the expense of the vessel;"
and another which declares that
"masters of vessels failing to comply with the rules will be
held responsible for all damages in consequence, besides laying
themselves liable under the law."
Upon the arrival of these United States vessels in May, it does
not appear that the harbor master was notified of the fact, nor was
word left at the central office that the vessels had arrived. The
harbor master exercised no personal supervision over the matter of
the anchorage of the fleet, and was without knowledge of the places
taken in the river by the said war vessels.
The Court of Claims further found, in its twenty-fourth finding,
that
"the said collisions were the result of negligence on the part
of the officers in command of the United States vessels
Page 184 U. S. 254
in bringing them to anchor in improper and unusual positions and
in causing them to be anchored on swinging chains, as
aforesaid."
A lengthy discussion is made in the briefs of the respective
counsel as to the nature of this finding. Is it a finding of the
ultimate fact in the case, or is it merely a conclusion of law
based on the facts previously found?
It is said, on the one hand, that, by the express terms of the
act of Congress authorizing this suit to be brought, no judgment
shall be rendered against the government unless it shall
affirmatively appear from the evidence adduced that such collision
was the result of negligence on the part of the officers in command
of said vessels of war and that, the Court of Claims having
affirmatively found that the collisions were the result of
negligence on the part of the officers in command of the United
States vessels, such finding is a conclusion of fact which
conclusively disposes of the case and which, so far as the right to
recover is concerned, leaves no question of law to be passed upon
by this Court. On the other hand, it is claimed that negligence is
not a fact which is the subject of direct proof, but an inference
from facts put in evidence, and that hence this Court can determine
from the facts otherwise found whether the collision was the result
of negligence on the part of the officers in command of the
vessels.
We do not think it necessary to weigh this question in a very
delicate balance, as we are of opinion that even if the
government's contention in that particular is sound, yet the
evidence adduced, as it appears in the facts found, was sufficient
to warrant the court below in holding that it affirmatively
appeared that the collision was the result of the negligence of the
officers in command of the vessels.
Undoubtedly, by entering the port of New Orleans intending to
anchor and remain there in total disregard of the usages and
regulations of the port, the officers in command of the vessels
were negligent. Ports like those of New Orleans and New York, which
are frequented not merely by seagoing vessels but by numerous
vessels and barges engaged in commerce or
Page 184 U. S. 255
rivers which enter and form part of the harbors, require
regulations suited to the local exigencies.
"An ordinance of the city authorities of Charleston prescribing
where a vessel may lie in the harbor, how long she may remain
there, what light she must show at night, and making other similar
regulations, is not in conflict with any law of Congress regulating
commerce or with the general admiralty jurisdiction conferred on
the courts of the United States. It is therefore valid. A vessel at
anchor is bound to show such a light as is required by the local
regulations."
Cushing v. The John
Fraser, 21 How. 184;
The
Vanderbilt, 6 Wall. 225.
There was also culpable negligence in anchoring in an unusual
and improper position.
"It is negligence for a vessel to moor so near the entrance to a
harbor that shipping, entering in stress of weather, is liable to
become embarrassed by its presence, and where the usual
difficulties of navigation make the entrance to a harbor a
dangerous undertaking, it is especially reprehensible for a vessel
to moor in a situation tending to increase these difficulties."
"Where a vessel is at anchor in a proper place, and is observant
of the precaution required by law, it is not liable for damages
sustained by a vessel in motion colliding with it, but where it
anchors in an unlawful position, or fails to observe the statutory
requirements and such other precautions as good seamanship would
suggest, it must suffer the consequences attending a violation of
the law."
Spencer on Marine Collisions, secs. 99, 106.
"A vessel ought not to be moored and lie in the channel or
entrance to a port except in cases of necessity, or, if anchored
there from necessity, she ought not to remain there longer than the
necessity continues. If she does and a collision takes place with a
vessel entering the harbor, she will be considered in default."
The Scioto, 2 Ware 360.
The treatment of the question of negligence on the part of those
in command of the government's vessels was so full and satisfactory
by the court below that we think it sufficient to refer to its
opinion, reported in 33 Ct.Cl. 251.
The dissent on the part of Peele, J., did not arise out of
any
Page 184 U. S. 256
view that the United States officers had not been negligent, but
was based on the opinion of the dissenting justice that negligence
on the part of the plaintiff had contributed to the accident.
Adverting to that aspect of the case, we think that, upon the
findings made, which, of course, control us, the plaintiff was not
chargeable with contributory negligence. The findings show that the
Future City entered the harbor and maneuvered for landing
in the manner customary for vessels of her class, that she had no
reason to expect to find vessels at anchor, where none had ever
been known to anchor before, on the city side of the river and
close under the point at Celeste Street, and that her management
when she encountered the exigency was skillful and proper.
The Court of Claims further found that the damages caused to the
plaintiff, as a result of the collisions, amounted to the sum of
$19,808.85.
It is contended on behalf of the government that, even if the
collision was the result of negligence on the part of the officers
in command of said vessels of war, and even if, on the facts found,
the plaintiff was properly exonerated from the charge of
contributory negligence, yet that the judgment of the court below
was erroneous in including the loss and damages caused to barge
68.
This contention is based on an alleged difference between the
findings of fact filed on March 21, 1898, and those filed on May
14, 1900, whereby it is claimed that the facts that were found in
the first finding, and upon which the liability of the government
for barge 68 was based, were eliminated, and hence there was no
foundation left for the judgment in that respect. This record does
not disclose to us the first finding, and, of course, we can only
consider the findings as amended and filed on May 14, 1900. But,
even conceding that the discrepancies pointed out exist, yet we
think that the findings actually and finally made furnish
sufficient support for the judgment in the particular complained
of. Finding sixteen is explicit that,
"notwithstanding the
Future City, after the collision
with the
Atlanta, continued to pursue the only course
feasible and proper
Page 184 U. S. 257
in the circumstances and in anywise calculated to avoid further
collision with other of the United States vessels, and continued to
back with all her power, and notwithstanding that she was
skillfully and properly handled and managed by her officers and
crew, yet, her stern having been swung slightly down stream by the
collision of barge 73 with the
Atlanta, she was unable to
check her headway or straighten up, and was carried by her headway
and the currents of the river, and went down toward the
Galena, which was lying about 400 feet astern of the
Atlanta and closer to the New Orleans shore than the
latter. In the collision between barge 68 and the
Galena,
the lines and fastenings of the said tow and the rigging of the
Future City were parted or greatly damaged, and her tow
was broken up and the lead barge (68), the barge on the starboard
side, struck the
Galena and was sunk, with all cargo
aboard, and the barge and her freight earnings became a total
less."
Inasmuch as the court found that everything that was possible to
avert further collisions after the collision with the
Atlanta was done by the
Future City, it in effect
and indeed in terms found that the loss of the three barges
occasioned by collision with the
Atlanta, the
Galena, and the
Richmond, were occasioned by
negligence of the officers in command of the said United States
vessels in bringing them to anchor in improper and unusual
positions and in causing them to be anchored on swinging
chains.
The judgment of the Court of Claims is
Affirmed.