When a collision of vessels occurs in an English port, the
rights of the parties depend upon the provisions of the British
statutes then in force, and if doubts exist as to their true
construction, this Court will adopt that which is sanctioned by
their own courts.
By the English statutes as interpreted in their courts, the
master or owner of a vessel, trading to or from the port of
Liverpool, is not answerable for damages occasioned by the fault of
the pilot.
The actual damage sustained by the party at the time and place
of injury, and not probable profits at the port of destination,
ought to be the measure of value in damages in cases of collision
as well as in cases of insurance.
By whose fault the accident happened is a question of fact for
the jury, to be decided by them upon the whole of the evidence.
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,
Page 42 U. S. 29
which was lying in the port of Liverpool on 15 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 15 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 unskillful 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 unskillfulness 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. "
Page 42 U. S. 30
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 $2,101.20, 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,
further 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
Page 42 U. S. 31
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.
This case arises from a collision in the port of Liverpool
between the barque
Tasso and the ship
Francis
Depau in which the latter sustained considerable injury. The
vessels were both American, the
Francis Depau being owned
by the plaintiffs in error and the
Tasso by the
defendant.
It appears from the evidence that at the time the accident
happened, the
Tasso was in charge of a regular pilot,
leaving the Prince's dock on her homeward voyage, and the
Francis Depau was at anchor in the harbor, laden with salt
and ready to sail. And in order to prove that the injury arose from
the unskillful management of the
Tasso, the plaintiffs
offered in evidence that it is the usage of vessels coming out of
the docks of Liverpool into the river to have their anchors slung
in tackle, ready to be
Page 42 U. S. 32
thrust over the bows, and in a situation to be dropped
immediately on passing through the lock which connects the dock
with the basin and before passing from the latter into the river,
and that the anchor of the
Tasso was not put over the bow,
nor was it attempted to be done, until she had passed into the
river and was approaching the
Francis Depau.
The defendant then offered testimony to show that in passing
from the basin between the piers into the river, the
Tasso
was held in check by a hawser fastened to one of the piers, but
that the hawser broke just as the vessel cleared the pier head, and
the pilot, perceiving that she was approaching the plaintiffs'
ship, thereupon gave orders to get an anchor ready. The anchors
were accordingly fixed as soon as possible, in the manner that is
customary in going out of the port, and an attempt was made to get
one of them over the side, but the tackle broke, and both anchors
fell on deck, and the vessel struck the
Francis Depau and
thereby occasioned the injury for which this suit is brought; that
everything was done of board the
Tasso according to the
directions of the pilot, and every effort made to prevent the
collision, but that it was blowing fresh, and the tide setting
towards the plaintiffs' ship, and the
Tasso would not mind
her helm.
To rebut this testimony, the plaintiff offered in evidence by
the pilot that the defendant's vessel appeared to be badly
furnished and that at the time the accident happened, the mate who
had charge of her under the pilot (the master being absent)
declared that he had not a rope on board fit to hang a cat, and
further offered in evidence that where the fish tackle breaks and
it is important that the anchor should be thrown out, it can be
accomplished in a minute or two by fixing another rope by a strop
to the anchor and heaving it over the bows.
At the trial, several exceptions were taken by the plaintiffs to
different instructions given by the court to the jury, and the
verdict and judgment in the circuit court having been in favor of
the defendant, the case has been brought here for revision by a
writ of error sued out by the plaintiffs. We proceed to examine the
directions excepted to, in the order in which they appear in the
record.
Upon the evidence above stated, the defendant asked the court to
instruct the jury that under the statutes of Great Britain, of
Page 42 U. S. 33
37 Geo. 3, c. 78; 52 Geo. 3, c. 39, and 6 Geo. 4, c. 125, the
defendant was not responsible for any damage occasioned by the
default, negligence, or unskillfulness of the pilot. The court gave
this instruction, and that is the subject of the first
exception.
The collision having taken place in the port of Liverpool, the
rights of the parties depend upon the provisions of the British
statutes then in force; and if doubts exist as to their true
construction, we must of course adopt that which is sanctioned by
their own courts.
52 Geo. 3, mentioned in this exception, is a general act for the
regulation of pilots and pilotage within the limits specified in
the law, and requires the masters of vessels under a certain
penalty to take a pilot, and provides that no owner or master shall
be answerable for any loss or damage, nor be prevented from
recovering on any contract of insurance, by reason of any default
or neglect on the part of the pilot. But this statute did not
repeal the previous one of 37 Geo. 3 for the regulation of pilots
conducting ships into and out of the port of Liverpool, and the
last-mentioned law required the master to pay full pilotage to the
first who should offer his services, whether he was employed or
not. This act did not, however, impose any penalty for refusal, and
contained no clause exempting the master and owner from liability
for loss or damage arising from the default of the pilot where one
was taken on board.
Upon these acts of Parliament the Court of King's Bench held, in
the case of
Caruthers v. Sydebotham, 4 Maule & Selw.
77, that the master or owner of a vessel trading to and from the
port of Liverpool was not answerable for damages occasioned by the
fault of the pilot. But in the case of the
Attorney General v.
Case, 3 Price 302, the same question was discussed in the
argument before the Court of Exchequer, and it appears to have been
the opinion of that court, that the master and owner were liable in
the same manner as if the pilot had not been on board.
The question, it is true, did not necessarily arise in the
last-mentioned case, for the vessel was at anchor in the River
Mersey when the disaster happened, and a vessel at anchor was not
bound to have a pilot on board. If in that situation the master
thought proper to employ one, the pilot was undoubtedly his agent,
and consequently he was responsible for his acts. But in
Page 42 U. S. 34
deciding the case the court expressed its opinion on the two
statutes of Geo. 3 before mentioned, in cases where pilots were
required to be on board, and held that the provisions of the 52
Geo. 3 exempting masters and owners from liability did not extend
to cases embraced by the local pilot act for Liverpool, and
strongly intimated that there was a distinction between the
obligation to take a pilot under a penalty and the obligation to
pay full pilotage to the first that offered, whether he was taken
or not.
Since these decisions were made in the King's Bench and
Exchequer, 37 Geo. 3 has been repealed by 5 Geo. 4, and 52 Geo. 3
has been repealed by the general pilot act of 6 Geo. 4; and these
two statutes of Geo. 4 were the laws in force at the time of the
collision in question. But although some changes were made in the
Liverpool pilot act in the first-mentioned statute, and in the
general pilot law by the second, yet in regard to the subject now
under consideration, these two statutes are the same in substance
with the preceding ones which they respectively repealed, and the
adjudged cases above mentioned apply with the same force to the
question before us as if they had been made since the passage of
the acts of Geo. 4.
In determining, however, the true construction of these acts of
Parliament, we are not left to decide between the conflicting
opinions of the King's Bench and Court of Exchequer. The same
question has since, on more than one occasion, arisen in the
British Court of Admiralty, and the decision in the King's Bench
has been constantly sustained, and we presume it is now regarded as
the settled construction of these pilot acts. Abb. on Ship. (Shee's
edition) 184, n. z;
The Maria, 1 Rob.New Admiralty Reports
95;
The Protector, 1 Rob.New Adm. 45;
The Diana,
1 Rob.New Adm. We think, therefore, that the circuit court was
right in the first instruction given to the jury.
The second also is free from objection. The question there was
as to the rule of damages in case the plaintiffs should show
themselves entitled to a verdict. They offered to prove that if the
ship had not been prevented from sailing by the injury complained
of, she would in due course have arrived in Georgetown (as was
intended when the lading was taken in) in time for the sale of her
cargo at the fishing season in the Potomac River, when
Page 42 U. S. 35
there is a great demand for salt; that the injury delayed her
and prevented her arrival until the season was over, and thereby
made a difference of ten or eleven cents per bushel in the value of
the salt at her home port, and occasioned a loss upon the cargo of
$2,101.20. The defendant objected to this testimony, and the court
refused to admit it.
It has been repeatedly decided in cases of insurance that the
insured cannot recover for the loss of probable profits at the port
of destination, and that the value of the goods at the place of
shipment is the measure of compensation. There can be no good
reason for establishing a different rule in cases of loss by
collision. It is the actual damage sustained by the party at the
time and place of the injury that is the measure of damages.
The third and last exception was taken to an instruction given
upon the prayer of the defendant, and also to the refusal of the
court to give a direction asked for by the plaintiffs. The
defendant prayed the court to instruct the jury that if it believed
that the collision was occasioned by the breaking of the hawser and
fish tackle, yet from those facts the jury was not warranted in
inferring that the
Tasso at the time of her sailing was
unseaworthy, which direction the court gave. And thereupon the
plaintiff prayed the court to instruct the jury, that if they
believed the collision took place as above stated, then such
breaking of the hawser and tackle is no excuse for it on the part
of the defendant, and this direction the court refused to give.
Now these two prayers involve the same principles, and are both
liable to the same objections. By whose fault the accident happened
was a question of fact to be decided by the jury upon the whole
evidence before them. And the error in the prayer on the part of
the plaintiffs, as well as that offered by the defendant, consists
in this -- that it sought to withdraw from the jury the decision of
the fact, and asked the court to instruct them, as a matter of law,
upon the sufficiency or insufficiency of certain evidence offered
to prove it, and both prayers are still more objectionable because
each of them asks the instruction upon a part only of the
testimony, leaving out of view various other portions of it which
the jury were bound to consider in forming their verdict. If the
collision was the fault of the pilot alone, then the owners of the
Tasso are not answerable. But if it was altogether
Page 42 U. S. 36
or in part caused by the misconduct, negligence, or
unskillfulness of the master or mariners, the owner is liable. And
if the equipments and tackle were in this case insufficient, and
not as strong and safe as those ordinarily used for such vessels in
such cases, and thereby rendered the care and skill of the pilot
unavailing, it was undoubtedly the fault of the master or owner,
and is equally inexcusable as the omission to provide a competent
crew. And it was for the jury upon the whole evidence to say
whether it was the result of accident, arising from strong wind and
tide, against which ordinary skill and care could not have guarded,
or the fault of the pilot, or the misconduct, negligence, or
unskillfulness of the crew, or the insufficiency of the hawser,
ropes, or equipments with which the vessel was furnished. In the
two first instances, the owner of the
Tasso is not
answerable; in the two latter, he is. The court therefore was right
in refusing the direction asked for by the plaintiffs, but erred in
giving the one before mentioned at the request of the defendants.
And for this reason the judgment of the circuit court must be
Reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by this Court that the judgment of the said circuit
court in this cause be and the same is hereby reversed with costs,
and that this cause be and the same is hereby remanded to the said
circuit court with directions to award a
venire facias de
novo.
