THE
F. C.
L-i\TROBE.
377
THE F. C. LATROBE. VASEY, Master, etc., 'V.
MAYOR, ETC., OF BALTIMORE, Owner, etc.
(1Jistrict Oourt, 1J, Maryland. April 13, 1886.) COLLISION-LIABILITY OF MUNICIPAL CORPORATION FOR DAMAGE DONE BY ICEBOAT IN RENDERING GRATUITOUS SERVICE TO ANOTHER VESSEL.
An ice-boat, maintained by the city of Baltimore to free tho harbor from obstructions, and to aid the commerce and navigation of the port, came into collision with a British steamer anchored in the harbor. Held, that the iceboat was in fault, and that the owner. although a municipal corporation, was liable in personam. Held, following The Fidelity, 16 Blatchf. 569, that public policy required that the city should not be deprived of the use of the ice-boat, but that the fact that no lien could attach to the offending boat furnished no ground for denying the remedy against the city in per8onam.
In Admiralty. Collision. John H. Thomas, for libelant. Bernard Garter, for respondent. MORRIS, J. On seventeenth January, 1886, the British steam-ship Sylvia having been loaded in the harbor of Baltimore, and made ready for sea, had proceeded to the quarantine grounds, and was lying there at anchor, waiting for her engineer, and some small stores, and a pilot to be put on board. The F. C. Latrobe is a large and powerful side-wheel steamer, built for the mayor and city council of Baltimore, to be used as an ice-boat to break the ice, and keep the harbor of Baltimore and the approaches free from obstruction by ice, and to aid the commerce and navigation of the port. On the sevJanuary, and prior thereto, the harbor had been more or 'less obstructed by ice, and the Latrobe had been engaged in breaking it up, and opening the channels. The steam-tug Calvin Whitely had -been employed by the agent of the Sylvia to put on board her the pilot, engineer, and stores, and she had also been employed to put a pilot on board anot,her British steamer also ready for sea, which was anchored near .the Sylvia. 'rhe steam-tug was disabled by an accident in the floating ice, and signaled for assistance. The Latrobe, which was not far off, came to her, and, at the request of the master of the tug, took off the persons and stores destined for the sea-going steamers, and proceeded to do what the tug had been disabled from doing. The pilot was safely put on board the first steamer, but, in attempting to get along-side of the Sylvia, the Latrobe struck the Sylvia a heavy perpendicular blow with her bow, just forward of the poop, on the starboard side, and did the Sylvia such damage that she was obliged to return to the port for repairs. The blow was the result of a miscalculation on the part of the master of the Latrobe with regard to the resistance of the ice, which was solid
378
FEDERAL REPORTER.
on that side of the steamer on which he approached, and which was broken on the other side. He miscalculated the strength of the ice, and also the effect which the reversal of his starboard side-wheel was expected to have in turning the bow of the ice-boat away from the steamer. There is no doubt that there was difficulty in bringing so large and heavy a vessel as the ice-boat along-side another vessel, especially when her navigation was impeded by ice; but, if the difficulty was really so great as to make it hazardous, it should not have been attempted. The service attempted was not a pressing necessity, and had not been requested by the agents or master of the Sylvia. Such a collision cannot be regarded as an inevitable accident, and, however commendable the motive of the master of the ice-boat, that vessel must be held in fault. The ice-boat is owned by the mayor and city council of Baltimore, a municipal corporation of the state of Maryland, having power to provide for the preservation of the navigation of the harbor and the river, within four miles of the city, and with authority to levy a tonnage duty of two cents per ton on every vessel entering or clearing at. the port. It is contended on behalf of the respondent that not only is the ice-boat itself not liable' to arrest for the reason that the public exigency requires that it shall be exempt from seizure and sale, as was decided in The Fidelity, 16 Blatchf. 569, but it is also now contended that the municipal corporation is not liable in an action in personam as the owner of the boat. It is urged that the doctrine of respondeat superior does not apply, because it is said that this is the case of a municipal corporation in the exercise of its governmental powers, performing through its officers a public .service, from which it derives no special benefit in its corporate capacity. It is true that in certain cases it is held that where a duty for the general welfare has been imposed upon a municipal corporation, the' persons employed to discharge such a duty are not servants or agents of the municipality, but rather publio officers, charged with the performance of duties, and that for their negligence or improper conduct no action can be maintained against the municipality. 2 Dill. Mun. Corp. §§ 772-777; Hafford v. City of New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87. There are two considerations, however, which, in my judgment, relieve the libelant's case from the difficulties suggeste{1 by this defense. The first is that, by the maritime law, the liability of the owner of a vessel for the negligence of the master is not controlled solely by the rules of other systems of law applicable to the relation of master and servant. The rule of the maritime law is that the owner is always personally liable for the negligence or unskillfulness of those navigating ,his vessel, except only in those cases in which the possession and control of the vessel has passed to a charterer or other person so completely that the other person not only appoints the master