TlIE .YOUNU AlU;RIC.\.
749
TlIE YOUNG AMERICA. t GALLAGHER TIJE ,YOUNG AMERICA.
(Oircuit (JQurt,)f D. New York. 1887.)
I, 'TOWAGE-STRANDING OF Tow-NEGLIGENCE OF TUQ--'LJABILITY.
2.
. The tug Y. A:, while ,towiY,lg. a flotilla of canal-boats, which ltbelant's boat, inwro:d bound, through the Narrows, met an ice-field floating on the flood-tide, which caught the tug and tow on the starboard side. alid swept them in towards Staten' island, so that libelant's boat struck upon shore rocks, and. subsequently became nearly a total loss, Beld, on the evi: dence, th.at the strallding was caused by negligence on the part of the tug. '
.", o
SAME,I;EAVING Tow AFTER'b'1,nA.NDINl;.
aC(lHlent, the 'tUg W.,a helper of the Y. A., detached libelant's boat· from the flotilla, and .bellched her at a !lafe place. Subsequently the W., :with the of the li:belant, and withhim on board, came to New 'York' for leaving no one in charge of the boat: On their returu .the boat-was found in possessIon ofa local wreck-master, under'color thority.,·Whorefused yield hllr up to the W. and her wrlleking party,' and took; out the coal,cut up the boat and sold her as old There 'lias 'noallegation in the .libel of negligence on the part of theiY"Al after the/stranding. Held, thitt. the.re was no liabilitY': on part of the bIg for d,ij.mliges after because absence of ,a in,the libel of neglIgence, if it dm not preclude'thil court from permitting' ll. rec'overy on that ground, tended to show the libelant himself did not,consider the, tug negligent in that regard; (2) because the damages arising from the aqts, of the wre<:k-master were not a sequence fairly to be anticipated from the IICt of the W. in leaving the boat with no one on board; (3) because the libelant'acqlIi'esced in the departure of the W.\;and went with her, whereas, if any Qne wall required to remain in charge of the. ,boat, he should mained llimself. . ,
Henry G,. Ward, for claimants. Joffiah Hyland, fQr libelant WALLACE, J. The libelant was the owner· of the canal-boat. Beekley, which, while in a flotilla of 24 canal-boats in tow of the tug Young America, struck upon the rocks on the Staten island shore in the Narrows, near Fort Wadsworth, and subsequently became nearly a total loss,. The libel, filed against the tug to recover damages for the JOBS, alleges Mgligence' OIl the part of the tug by reason ·of not keeping. the tow. further out in the channel, and away from the Staten island shore, and by reason of not keeping a proper lookout, and not having on board the tug a competent and skillful pilot. No other acts of negligence on the ,part of those in charge of the tug are alleged. The answer of the tug alleges tha.t on reaching the Narrows she encountered an ice-field, which came ':lioating"on the flood-tide from the lower bay, and caught.the tug and to\V starboapd side, and swept them towards the Staten island shore; that the tug Winnie, which was the tug Young Arnerfcaasa: 'helper, attempted to break the ice-field, and every effort was hiade to prevent the setting of the tug and tow towards thee>hore, but 'without avail; and the resultwas that libelant's boat touched the shore,
.
1 Reversing,
26 Fed. Rep. 174.
750 at Vanderbilt's landing.
.FEDERA!. REPORTER.'.
and the tug Winnie tookher out of the tow, and towed her to the beach {, , By the decree of the district court the damages for the loss of the Beekley were divided 'between ,tKe aDd the tug. The district judge was of the opinion that the tug 'Yas free from Ilegligence as to the acts alleged in the libel, and that, without her fault, the tow was crowded by the ice, substa.ntially as stated in the opinion -tbat;;,ti};ietugwas in fault because of quen,t acta of negligence., 'rheowners of the t'llghaye appealed from this decree; and by stipulation 1fhns heen agreed that the cause may be coJiside:req. now as had also The acts of negligence on the part', of tne tug charged iilthe libel not by the proof bYll.pteponderance but, on 'the ,the prpofs, subetantiate the averments of, the answer I, and show quite ,that tuidl,otUla, ;w:a,s crowded by the against it'by the'f!odd"tide, sothattheboats on the port side were brought into too. to '!;lotwithstanding the e.xerClseof all seasonable and propel: efforts on the part of tpetugto dlS'J,'he case 'upon this issue turns almost wholly upon of, tlie, witnesses Jor'the respe(}tive parties. .' The witnesses for the ,tug are more in number :than those for thE! libelaht,. and' most of thl;lm better opportunitieafor', observing. the situation, and a greater interest ;dc;>ing so, ',witt).essesproduced'PY'the libelant. 'BOrne of the witnesses may, be mistaken I anq,may ,testify erroneously to what they believe true,many, and a greater number, testify so explicitly about facts with regard to which they carirt6t be misfabtaken that what they state is either true., c;>r ricated. Among the latter are those who of the tug Winnie, and who testify that that tug went around the flotilla two or three tiDies, tryingtbbreak up the iqe;b:nt thatit closeq.up fast as it was broken,' and ,oould not he resisted best of the Young ioa andiofithe :Winnie. .The to this issue, maybe 'properly left upon the considerations stated intheopipiol1of the district judge. Even 'were thecaserouch stronger {OJ:', the libelant, as ,the witne,sses were amined in'the presence of the dil'trict judge, hiil judgmeQt of their in.telligence and honesty shoulq.nqtbe .. ' The arg]1IDjent, for the Ubelant respecting the con,ditiGlD of the upon, palculations from the nauticaJ.almanac, has not, been. ov:erlooked; nor,the fact,' upop. which the libelant also relies, thtJ,t,theboats;po t,Jaf3,starbof;lrd,side of the ':flotilla. were ,Jil.6t apparently injured by contjj.ct Wlth ·The argu!ment as tcUhe state of the tide iapot sustained",l}yqthe ftjferencetothe ina.utical.almanac, because it would seem, Jr9nl: the .thutit -shouldbaveibeen high water at the pltlce the time when the as waS the,opipiol1 of ,the 'district judge,the evidenoe;88.to tl,w predl'le ,tinie. of. the is 'not so certain as, to admit of reliaIJ.Qe upon theargun;umts with respect to. a change of the tide. The fact that the starboard boats of the tow did not exhibit any marked indications of injury from ice is not necessarily in-
:rHE YOUNG AMERICA· " . I,"
751
with the the answer. The ice .was not driven with violence against the boats; butwllscarriedgradually Ilgainst them, and , the flotilla·wasdn very slow. Diotion. It was brokenqpalso.by the Winnie.What effect it would h,a:veupon the boats, and what they would present of its contact, are wholly matters of conjecture. The issue is <me which must be resolved wholly the credibility of the witnesses. , The proofs show that after the libelant's boat struck upon the rocks the tug Winnie detached her from theflptilla,., and beae-hed her at a. safe I .andpropellplace. The libelant himself left his boat, and came aboard ' the Winnie., After thecanal..boat was beached, the Winnie remained by her all night. The master and crew of the Winnie used all reason.able efi'ortsto· raise the canal-boat, but their pumps froze. Before they oould resume pumping, the tide rose, and. they then concluded tog\) to New Y:6rkcity, and obtain' help. This was in the :mornipg after the .ac<lideIit. ' The libelant went .' with. them ,and acquiesced in w4atwas , propolled; olldid not disSent. The tug Raritan was procured, and abput noon ·of that"day proceeded to Vanderbilt's landing, the libelant with her, aOddmpanied by the wrecking,acow to pump out libelant'si1!>bat., When they reached ,landing they found the possession of several. men, who claimed to beacti,n/!. , under the flr.l1thorityof the of Richmond after the wreek.masterhimselfappeared. Tpesepersons would not 'mit thijSil'in 'charge ofthe Raritan or the Dunderbergtogoon bQard, tp.a ' or interfere in fanY-i'waY'with their .possession and eontiol; 'J and by threats of violence drove :them away., At this time the. ·-oftheRaritanasked· the libelant· tp make knQwn the facts, lj.nd that .he "'Was'the' l o'wnar of to. the wreck.master, b1;ltthe' libeiant refused.t<? do so. According to the testimony of the libelant, tqe wreck. 'master; OI"th<'lS6 underliim,:tookftheeoal out ofthEfcanal-boat,cnt her ,to piecea,andsoldbJerfor:old-wood, after lettinghel' lie ao long in ,the water that shewasbadiy,knocked to pieces. " ...,... The'statutes of thIs state tIRev,.. St. c. ,20"tit. wrook-ma:steroiany'county in which any 'found, wheD'no, owner or 'other person entitledto the possessi!>ll: 9(such "propetty'shaUappear, :topursueall for, s,ecuriJ:1ga,nd propel'ty,to.take:possessionthareof , a,nd to keep the same , iusorne :sa,replace to answer the claims of such as may, there'after appear entitled thereto) upon the paYlllentof a reasonable salyage -:'and neeessaryexpertses. It is UI1ll6cessa,ryito"aythatsuch rn1P-anly conduct as, .according flo.' the 'proofs.,. characterized the· detention oithe ; libelant's ibo9.t) rendered :the :Wreck-master..and .hijl,rabble initio. They 'were undoubtedly aware that.the and 'had comElupon a legitimatei errand,and represented the owner oithe -eanal-boat; otherwise they would not have resprted to the: brandishing -of revolvers, and threats :of violenoo, before permitting any ,or attempting to aScertainiwhythe vessels had come. The learned district judge was of the opinion thll,t,it was the. duty of
;FEDEnAI" REPORTER.
I
the tug, -before leaving the libelant's boat, to have made all necessary to prevent her frorn falling into the hands of third persons of authority; and because this was not done, and because under. the libelant's loss was greatly :increasedby the act of the wreck-master alid his silbo'rdinates, and beoause the :amount of the loss by reason of the origihal injury, and that which accrued in consequence of the acts of the wreck-master, could not be ascertained, he held the damages shohld be 'divided. ;. ." ' : . Thilgeneral proposition that ,a.utug whose tow is injured or disabled . during service, although without· fault .on the Pllrt of the. tug, 'must reasotmhIe diligence to assist her; tow I and shieldherfrom additiollat';injury, may be ,assumed as correct law, withQ'Ilt discussion. Nor ,it be now qUElAtioned that the tug, when her tow becomes dis, abled; is utiller obligation tb'do aU that, is reasonably her power, particularcirouiii.stances ofthe occasion and situation1 to the towage service, or,it'this is impracticable,-toearry her tow to' safety when thie:<ian: be done. All this was done in the pres'but the tug was Mndetimed to bear half· of the libelant's loss because:affer. her-consort,"the Winnie, had brcmghtthetow,tothe safest practiMble'place,and her best efforts to raise·,the tow, and , prgvide fiji- her ultimate' safety, 'the Winnie temporarily:letlher to obtain mor¢' 'efficient assistimee,' ahd, did not leave some peI1ijon on board or at; hitridtti protect her. . So far 9i8 appears, there .was nothing in: the situatibhQf 'tlielibelant's boat'l' with regard to exposure to the: elements at the time:shewas left by the Winnie; which rendered it necessary that any pel'sonshould remain "With her; nor do the proofs sbo.w that there was anybhreasonable delay oli the part of the Winnie inprocuring:assistarice;;an'd sending the Raritan' and Dunderberg to the relief of the canal-boat. . If thetl1g 'is to be held at all, it is because she failed to anticipate that the libelant's boat would be seized as a wreck, and take necessary precautions to avert such a oontingency. There are several difficulties in the way of the libelant's recovery against the tug upoosuoh a theory. It is to be observed that no fault or :breach of duty in this respect on the , part of the tug is charged in the libel, and the proofs were not addressed by either party to the issue whether the tug was negligent in leaving the 'canal-boat without a guard, underothecireumstances. Consequently, and a.81hight be expected, the proofs are not full, but, on the contrary, meager, with respect to the situation and circumstances oithe clthal-boatat the iim'e the Winnie left her to obtain further assist'hnee.·· 1he proofs do not disclose satisfactorily whether thE;) circumstances were not ofthetnselvesadequatenotice that the libelant'e.:l>oat was not an 1ibandoned wreck. It would seem that she had, ,been prought to a safe - 'place, where she: was not in immediate danger frornthe elements, and, for aught' that appears) she was left, ilNli situation which would sufficientlyiridicate to all who saw her ,that she had been towed there as a place of temporary safety nntil necessary,assistance to raise her could be .'obtained.H, in the absence ofany: allegations in the ,libel charging the
THE YOUNG AM:ERICA.
7!)3
tug with negligence in leaving the canal-boat after she had been beached, it is not the duty of the court to refuse to consider whether there can be any recovery: upon this ground, (McKinlay v. Morrish, 21 How. 343,) the omissidn is certainly cogent to negative the inference that the libelant 'himself considered the tug negligent in this behalf. TM Clement, 2 Curt. 0363. · :But the case in this respect does not rest upon inference merely, because the libelant himself was consulted by the captain of the Winnie about leaving the tow, and going to New York for assistance, and acqUiescedihwhat was ;proposed, without making a suggestion that any 'person should be left in charge of her during the interval. If it Ishould be assumed that some person should have been left in ,ch:atge,efthelibelant's boat, and that it was the duty of the Winnie to osee'that this was done, al1dthat the libelant is entitled to recover damageshecause it was not done, nevertheless the proofs do not auth()rize a l'i:)c6VtJry. The, proofs do not show that the libelant sustained loss for 'whichhesh:ould receive compensation by reason of the act of the Win';l'iie inleaving the tow 'without a guard. The libelant is not entitled to recover or: the tug such' l(!)ss as he may have sustained in consequence of o the the wreck-master and his assistants. Com"fJensatiOll ,is tecoverable 'for such, damages only as are a sequence fairly ttrbe from the act eomplained of. The liability for a negligent act,'uo!t'amouriting toawanton wrong, extends only to compensat\fig the partyinjuredft)r such loss or injury as is shown to have been the na,tutabmd probable consequence of the negligent act, such as ought to have been foreseen, in the light of the attending circumstances. Glover v. London &- S.' W. R. 0>., L.R. 3 Q. B. 25; Milwaukee, etc., R. Co. v. Kellogg, 94U. 8;469. · The unlawful acts of third persons, though . directly induced by the original wrong of the defendant, are never to be attributed to the original wrong as a proximate cause of the damage for which a recovery can be had. Knight v. W''l1cox, 14 N. Y. 416; Lynch v. Knight, 9 H.L. Cas..577; Moore v. Meagher, 1 Taunt. 39; Vicars v. Wilcock$, 8· East, 1; O>llins v. Cave, 4 Hurl. & N. 225; Crain v. Petrie, 6 Hill, '522. oApplying this rule', the libelant would not be entitled, upon any view of the facts, to compensation:in excess of the sum which the wreck-master could ha.ve lawfully for salvage. If that functionary had acted in good Jaith, he would have been entitled to nothing more than fair compensation for a salvage service under the statute; and, upon the tenderofs; sufficient sum by the libelant to cover this compensation, it would have been his duty to surrender possession of the libelant's boat. Although when the wreck-master found the libelant's boat, there was no oneo()u'board or in charge, if he found her under circumstances that odenot:ed,or.ought to have'denoted, that his services were not desired, and took possession of her with intent to supplant those interested in giving-her relief, he had no claim for compensation. The Upnor. 2 Hagg. Adm.S; The India; Rob. 406. 1Jnless a vessel has been utterly abandoned, and ii3 in contemplation nf law a derelict, even bonafide salvors have no right to the exclusive v.31F.no.12-48 0
;', FEPERAL REPORTER.
ST. LOUIS & ST. P. PACKET
co. .. KEOKUK
& R. BRIDGE CO.
755
Sf','Lol:JIS &
Si.:PAUL PACKET r , ','
CO. V. KEOKUK'&HAMILTON BRIDGE CO.
(Circuit Oourt, '0' '-",1
s. D. Iowa. ·
'1887.)
" ,
The,measurement of .the lengtbof a draw. within the meaning of the act of the bUilding of a draw-bridge over the MiSSiSSiPPi, river at Keolbi1t; Iowal 'and requrrlng'the draw to be 160 feet in length. must be on alineatrig!ltangles totbil'piers, upon the surface of thll water atlow-water
"
',,',:
,;", , '
'
, 8.
Under that section of tbe act of congress requiring'the piers to be built the 'bridge company is required to use only reasonable care ,alld foresight in the lOcation, of its piers'.lf the 'piers at the time of , lQCatiQh are 'parallel to the current, and by some act of the government subse· quelit to' the' efection, of' the' bridge. or by any other means not within the cODu-ol of the 9Ul'rept is so as to prevent pIers" l.t ;18 lD,cum1?ent upon the company to conform Its paIrs to the new 'cQnpition of things.' "But if the company lillo's constructed its piers with 'reference;to acts of the government, and has used reason,and ,fprming llJld its, plans, and the change ,is .suchas,not to unreasPnaoly endanger 'navi!tatiob, negligence is not to be imputed to it. ' '" . " ",., ,,",
AME.
4. SAME. :/, ,Urpb,o the quest,ion
"6.800."
strQQture dangerous naviqf afailll,!ec to cOlpply with the of the of congress authqn1\lng itslcoIlstruCtlon, and wheretberels conlhctmg tes'tibii<inys'B to whether the,stmot\1redoo8 substantially,meet thereqoIremeJ;lts ...., PfJl,Ot. thejul'y,have a ,the actual tl1-cts of J;lav:igation ,at the "drlj,w,in question through long period during which the draw has been .. 'used. ' , , , ,( " ;; , " , 6. BAKE. ' , ·A'pilot. in navlga,tibg a stream over is ,a ,draw-bridge, is only ;oWilged to ,use ordinary, skillllnd care in thr\>ugh the draw; and the did under all the cit<!umstan'ces,is one for the jury. ,P", " ,
il1ridge. thE! jury will i,ll-view of the, of a river by steaJJ1,wnere such nar1gatlOnttteets numerous 'brl'dges, that the mJury may be' the result Of purely physical causes. and unavoidable by the intervention ofrblumanagency. ,7.,8AM:J,lJ. , ; :' , ' " ,.' tt (s ,not proper to in,struct ajury that, if abridge over a navigable stream is ala.wfUI structure. and asteam-boat i!rrun down against itiinjuring one of·the:piers;:theverdict shall biffor the bridge company.
fin an .action for damages growing out of a stea,m-bqat running into a draw-
, : Givtn OdmpbeU 'andJ. H..
for plaintiff'. A. J.McOra:ry,and A-iJInJlHagerman, for,defendant.
portance.'
LOvE,J., (chargingju'i'1J.}Tl1e
before you' is of very:great im'In addition to the large pecuniary interests directly involved, concern.ing the bridging