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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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ciency in the former or delinquency in the latter, he will be liable
to respond in damages to such amount as the jury, under all the
circumstances, shall think just and equitable.

I come now to speak of the principles which I consider applicable
to the navigation of the Delaware river ; and which, it appears to
me, ought to govern and regulate the conduct of all those engaged
in it.

This river, being the only navigable communication between the
City of Philadelphia, a place of vast commerce and business, and
the ocean, must be considered as a great and leading highway, open
to all nations in time of peace. When looked upon as such, its
channel may be thought to be sufficiently narrow for this purpose,
and as having nothing to spare. Hence it becomes of the very first
importance, that the rules and regulations adopted, in regard to
the navigation of it, shall be such as will best promote the end and
design of its being used as a highway, by means whereof the com-
merce of the City of Philadelphia shall be. increased and extended,
if possible, to all parts of the world. To effect this great object, it
is very obvious that the more secure the navigation of it is made,
for all those who venture their property on it, the greater the
inducement will be to do so. But this cannot reasonably be
expected without an exercise of due skill, caution, and care, on the
part of those concerned in directing the navigation of the river.

What then, under this view, was the duty of the Thorn in coming
to anchor ?

First. To have selected a suitable situation, and, in doing so, to

have got out of the channel, if practicable ; for the channel of the

*oir-i river *not being very wide, anchorage in it would be the

J more likely to interfere with the passage of vessels, and to

endanger the safety of persons and property by means of collision.

Secondly. If she anchored in the channel, and the night was
as dark as the witnesses say it was, a light ought to have been
hung up in some conspicuous part of her, so that it might have
been seen as far off, or as early as possible, by those sailing or pass-
ing in the river. This, it would seem, according to the testimony
of most of the witnesses examined to this point, is done generally ;
but when the vessel has anchored in the channel, it ought never to
be dispensed with.



1840.] OF PENNSYLVANIA. 315

[Simpson . Hand.]

Thirdly. In this latter case, a watch ought also to have been
placed on the deck ; so that vessels approaching might be dis-
covered by him, and notice given, to do whatever might be neces-
sary, in order to avoid collision, if found to be in the way of the
vessel sailing: and,

In the fourth place, to have got out of the way of the William
Henry for this purpose, as far as she could, by shearing to one side.

In order, however, to attain the grand object in view here, it is
not sufficient that all these things should be attended to and
observed merely by those on board the vessel at anchor ; for you
will readily perceive, that the observance of a duty by those having
the sailing vessel in charge, in some degree corresponding to those
laid down for those on board the vessel at anchor, will greatly pro-
mote and tend still more effectually to secure it. It is doubtless
the duty of the vessel under sail, having no intention of coming to
anchor, to keep the channel or course usually adopted and pursued
by vessels under sail ; also to have a light hung up when her sails
are not set or spread ; in such manner as to apprise or give notice
to all concerned or interested in her approach ; and provide, if
necessary, for their safety, by avoiding collision. Again, to have
a watch on deck to keep a sharp look out, that he may give notice
of any apparent danger from collision with any other vessel, in
order that those having the charge of each vessel, shall use their
utmost endeavors or exertions to prevent it.

A proper application of these principles to the facts of this case,
as you shall find, will, it is apprehended, bring you to a correct
result. For instance ; if you should find that the Thorn was lying
at anchor altogether out of the channel and track in which vessels
navigating the same are conducted, it would be immaterial whether
she had a light and watch on deck or not ; and being struck by the
brig William Henry in such situation, the whole blame would attach
to the latter, in having departed from her proper course ; and the
defendants, as owners, would be liable to make good the loss sus-
tained by the plaintiffs. So, although you should find that the
Thorn was in the channel, it not being safe or practicable for her
to get out of it, yet, if she had a light, suitable for the purpose,
hung up in some conspicuous part, so as to be visible in the way I
have already described, *and a watch on deck to keep a r*Qi
look out, and the hands on board did their duty, those on *
board and having charge of the William Henry, would seem to be
chargeable with negligence, at least, in not having discovered the
Thorn and avoiding her, and thus render the defendants liable as
the owners of her. Again, if, without this being done in the
Thorn, she was discovered by those having the charge and direction
of the Henry, in time to have avoided the collision, but they
neglected to use the proper exertion for doing so, until it was too



316 SUPREME COURT [Dec. Term,

[Simpson v. Hand.]

late, the defendants would be liable in like manner. But if, on the
other hand, you should find that the Thorn was anchored in the
channel, without having placed a light and watch on deck, and was
not discovered by' those having the direction of the Henry, until it
was too late to avoid the collision, the defendants would not be
liable."

The jury found for the plaintiffs ; upon which a motion was made
for a new trial, and the following reasons were assigned.

" 1. The plaintiffs contended that the defendants had no right to
sail the William Henry up the Delaware bay after dark, but were
bound to anchor : they produced no evidence whatever of negli-
gence or misconduct but this; on the contrary, it was fully proved
that the William Henry had a skilful pilot, a competent crew, and
that she kept a strict lookout : under these circumstances, the find-
ing of the jury must have been based upon the false principle that
the vessel ought not to have been navigated by night.

2. Although the plaintiffs contended to the jury for the principle
that the vessel should have lain at anchor during the night, yet the
judge did not, in his charge to the jury, directly negative that
proposition.

3. The William Henry was navigating the river, as was proved
without contradiction, with a strict and vigilant look-out ; such,
however, was the obscurity of the night that the Thorn (the injured
vessel) was not seen until she was only a few rods distant : some
evidence was given that if the look-out had, at the instant of dis-
covery, given a particular order to the helmsman, the collision or
impact would have been avoided. The defendants contended that
the want of presence of mind in the look-out, in a sudden and
alarming exigency, and in consequence thereof not giving the most
judicious order to the helmsman, or, if given, its not being heard,
was not such negligence or fault as would make the owners of the
brig William Henry liable for the consequences. The judge charged
against this position of the defendants.

4. Because the judge declined to charge the jury that in case
tbey believed that the collision was caused by the negligence or fault
*3171 ^ *b tu parties, that then the damages should be appor-

-" tioned between them ; but on the contrary, negatived this
proposition.

5. Because the verdict of the jury was against the law and
evidence."

The case had been argued at December Term 1838, Mr. F. W.
Hubbell, and Mr. J. S. Smith, for the defendants, and Mr. H. Bin-
ney, Jr., and Mr. J. R. Ingersoll, for the plaintiffs ; and now came
on for a re-argument.



1840.] OF PENNSYLVANIA. 317

[Simpson v. Hand.]

Mr. Hubbell, for the defendants.

It is a question whether the case is not a proper one for admiralty
jurisdiction. The judge said, that although the Thorn was wholly
negligent, yet, if there was also fault in the William Henry, the
latter was liable ; but this we say was a case of mutual loss, and
proper for apportionment ; the utmost the plaintiff could recover,
if any, would be a proportioned amount. The error in the judge
was in saying the plaintiff could recover his whole damage. In
Vanderplank v. Miller, 1 Mood. & Malkin 169, 22 E. C. L. Rep.
280, in an action for running down a vessel, it was held that the
plaintiff could not recover unless the injury was attributable
entirely to the fault of the defendant. If the plaintiff were partly
in fault, and by care might have avoided the accident, he cannot
recover. That was a case, too, of an action by the owner of goods
sunk. In the case of the Woodrup Sims, 2 Dodson 85, a case in
admiralty, the rules are also given. In the 2d vol. of the Law
Reporter 311, is another admiralty case the case of The
De Koch; where both were in default, and the court ordered
a mutual contribution. De Vaux v. Salvador, 4 Adolphus &
Ellis 420; 31 E. C. L. Rep. 106, recognises this rule of
the court of admiralty ; viz., that the whole loss is to be added
together, and equally divided among the owners. Curtis's Adm.
Dig. 145, in a note to the case of the Woodrop Sims, borrows a
note from the 17th vol. of the Law. Mag. 330, respecting this rule.
1st. That no authority in the admiralty recognises it. In the case
of Dodson, "apportion" does not mean equally divided. 2d. Sup-
posing the greatest loss to have been produced by the one whose
fault was greatest, the rule would be inequitable. 3d. No maritime
writer states it except in case of inscrutable fault. The writer
thinks it should be apportioned according to the degree of the
damage and fault. In Butterfield v. Forrester, 11 East (30, it was
held that one injured by obstruction placed in the highway, if
riding immoderately, cannot recover. Flower v. Adam, 2 Taunt.
314. In Curtis's Adm. Dig. 10, is a case showing that the admi-
ralty of the United States has jurisdiction wherever there is the
flux and reflux of the tide, and vessels engaged in maritime navi-
gation. In Venal v. Garner, 1 Cr. & Meeson's Exch. Rep. 21, it
was held, that neither party can recover where both are in the
wrong, in case for running down a *ship. Dunlap's Ad. r^oio
Prac. 85 ; 2 Browne's Civ. & Ad. 112. The admiralty has t
jurisdiction in cases of shippers of goods. 17 Law Mag. 327, when
fault cannot be ascertained, or where the suffering party is alone
in fault. The common law is, that where both are in fault, there
is no recovery, as when it cannot be ascertained. If ascertained to
be mutual, in admiralty it is apportioned. As regards a cargo
damaged by collision, even a sailor comes in for a share, there is



318 SUPREME COURT [Dec. Term,

[Simpson v. Hand.]

a right to a share in the valuation. 3 Kent's Com. 231 ; 3 Hag-
gard's Ad. 431. If it is a joint tort by the owners of both, and
the plaintiff has released one, that is a release of all. Part of the
plaintiff's claim is contribution for general average, (by losing
anchor, &c. in consequence of collision), in their last count. But
their owners could not recover, this being voluntary. Mayhew v.
Boyce, 1 Stark. N. P. C. 423 ; 2 E. C. L. R. 454.

Mr. H. Binney, Jr., for the plaintiffs.

If the fault was mutual, there was no fault in us, the shippers;
we had a right of action against the owners of both, and we selected
the true cause. It is a tort and severable. The admiralty cases
are cases of owners suing. The common law only requires the
plaintiff to be free from fault. Here to implicate the plaintiffs you
must show that the owners were the master's servants, or that a
relation exists which implies this. In Dodsori 85, the action was
by the owners, who had control over the management of the vessel ;
whereas we had not. This is a common-law case, though the
admiralty has concurrent jurisdiction. De Luvio v. Boit, 2 Gallison
398. The English cases show that the common law has juris-
diction. The case in 2 Law Rep. 311, was an action by the owner.
That in 31 E. C. L. R. 106, was a question between ships. And
every case is so except one. That in 11 East 60, was between
parties. In 2 Taunt. 314, the principle stated by the chief justice
is not law. Venal v. Garner, 1 Cr. & Mees. 21, was a case of
owners. The only case of shippers is Vanderplank v. Miller, 22
E. C. L. R. 280, and it would seem they were also owners of the
vessel. In Laffer v. Pointer, 12 E. C. L. R. oil, it is said that the
charterer of a vessel, i. e. he who charters to another, is not liable
to one injured, not freighters of goods. Abbott on Ship. 83. In
torts by several, plaintiffs may sue some or all. Law v. Mumford,
14 Johns. 426 ; Patton v. Gurny, 17 Mass. 182.

Mr. J. R. Ingersoll, on the same side.

In Mayhew v. Boyce, the plaintiff himself was plainly in fault
by not fastening the girth. A light was not necessary in this case ;
there was light enough to see, and that is shown ; and that they
had six times the length they wanted. This point about general
average is a mere trifle; but it is not assigned in the reasons, nor
was it suggested at the trial, where we might have struck it out.
#9-1 qj *So as to the release, there was no objection at the trial.
As to the admiralty, we never doubted we could go there ;
but the defendant ought not to complain, because it is better for
him that we went into a court of common law : for the admiralty
would only diminish our loss ; whereas a court of common law
would not allow us to recover at all, where there was any fault on



1840.] OF PENNSYLVANIA. 319

[Simpson v. Hand.]

our side. But no objection of that kind was made at the trial.
Karsby v. White, 21 Pick. 254, shows that the master of a vessel
is not, at all times, to have a light in a harbor ; it depends on
circumstances.

The admiralty jurisdiction is exclusive only in question of prize
or no prize. Doug. 594 ; 3 Binn. 220 ; 1 Bay 470. In matters
in the Instance Court of Admiralty, the jurisdiction is not exclusive,
but concurrent. 3 Dall. 19 ; 10 Wheat. 473 ; 10 Pet. 108. Juris-
diction over torts. 3 Mass. 242 ; Bee 51 ; 2 Gall. 308 ; 4 Mason
380, seduction of a boy, and carrying him to sea. The man who
puts on board the cargo may be in fault, as by putting igniting
substances on board, or rotten hides, &c. ; but we were innocent,
and have nothing to do with the Thorn. The admiralty doctrine is
impracticable, inasmuch as it would confound the innocent shippers
with the two defaulters. The injured person may, at common law,
select the man who injured him, as in the common cases of joint
tort feasors. There is no pretence of mutuality as respects us. In
Sergeant's Con. Law 270 (202), citing 4 Dall. 426, it is laid down,
that the admiralty courts here have jurisdiction in maritime torts
committed on the high seas, or in ports and harbors, where there
is a flow and reflow of the tide ; but it is concurrent with the com-
mon law. The judiciary act of the United States saves the remedy
at common law in vesting admiralty jurisdiction. 2 Chit. Gen.
Pr. 515; Slocum v. Mayberry, 2 Wheat. 1; 10 Id. 108; 1
Taunt. 568 ; 1 Holt's N. P. 359 ; Bussey v. Donalson, 4 Dall.
206 ; 1 Wash. C. C. 142 ; Snell v. Rich, 1 Johns. 305. The right
of jurisdiction attaches where the suit is first brought, as respects
the plaintiff. In 6 Pet. 143, we find reasons why parties may go
into admiralty or common law. 2 Gall. 477 ; 1 Paine 180 ; 2
P. A. Browne's Rep. 335, 355.

In the 2d place, I say, we have nothing to do with the conduct
or fault of the two ships. We are third persons, disconnected,
innocent sufferers. In Warren v. Ins. Co., 14 Pet. Ill, the case of
De Vaux v. Salvador is overruled ; and it is decided that under-
writers are liable for average losses occasioned by a collision. The
Insurance Co. here are in reality the plaintiffs. The defendants
were the proximate cause, which is enough. It is no answer that
another does a foolish thing ; as if a drunken man being on a rail-
road, the conductor runs over him wilfully. Here, all that the judge
says, is that if the defendants had time to avoid the collision, but
they did not use proper exertion, the defendants are liable. Jacobs
on Sea L. 337. The damage the cargo sustains by collision is par-
ticular *average. That is, it takes care of itself, and is not r*o9ft
brought into contribution. Jacobson 337, a ship under full *-
sail is liable. In the Code de Commerce, tit. 11, 437, the law is
thus stated. If the collision is fortuitous, it is borne by the sufferer.



320 SUPREME COURT [Dec. Term,

[Simpson v. Hand.J

If by fault of one, by him who caused it.: if there are doubts, it
is equally shared. Not a word is said about the cargo.

3. The verdict is right, though the learned judge might be wrong
in a principle of law ; and no new trial will be granted. Wakely v.
Hart, 6 Binn. 320. If, on the merits, the verdict is as ought to
have been, the court will not disturb it. It is an appeal to the dis-
cretion of the court, and the question is whether injustice has been
done. But I maintain that what the learned judge said was right;
and that if the Thorn was in default, yet, if the William Henry did
not use proper exertion to avoid her, when she could turn out of
the way, the defendants are responsible. She had only to try to
avoid it ; and the evidence shows there was ample time to do it ;
and she chose not to do it, and the collision took place in conse-
quence of this neglect. It was the efficient cause. All that could
be added to the Thorn would not put the William Henry in a better
state to avoid the blow. And this was what Judge Kennedy left to
the jury, and they have decided it.

Reply.

I don't deny that the common-law courts have jurisdiction ; but
I assert that the gravaman in this case is proper only for a court
of admiralty. We say that in a common-law court, if there is
fault on the part of the plaintiff, he can't recover. It is enough for
us if we had shown that there was some evidence that the plaintiff
was in fault. Does the circumstance of the plaintiffs being owners,
and innocent, differ the case ? Can they say you are all guilty,
both the Thorn and William Henry, and we can sue you as tres-
passers, jointly or severally ? But the ship owners are owners of
this cargo pro hac vice ; and the plaintiff can't implicate it in
wrong, and yet have a right of recovery. If a bailee sues, and
recovers, the bailor can't, and vice versa. If the carrier would be
barred, can the shipper recover on the same title, and for the same
injury ? No such case can be produced. The possession by the
bailee involves the bailor in all the consequences of the default of
the bailee. 6 Bac. Ab. 564. If the bailee has delivered goods to
a stranger, the bailor can't sue for them. The case of Vander-
plank, already produced, shows the principle we contend for ap-
plied by Lord Tenterden. Smith v. Smith, 2 Pick 621, involves
the same principle. There the owner of the horse was innocent.
Bac. Ab. tit. Trover, C. (last ed.) 804. If either bailee or bailor
recover in trover, the other is ousted out of his action. The vis
inertice of the Thorn was much increased by the cargo ; without it
she might have veered by the blow. They are not jointly liable ;
*qoi"| there was no concert or community of design *or act. If
J they were, (as is now first suggested) then their release bars
them. As to general average, there are two express counts for



1840.] OF PENNSYLVANIA. 321

[Simpson v. Hand.]

cable lost, and other damage, for which the plaintiffs had to con-
tribute $200. If they did not participate, (as they say) yet they
claim under the owners of the Thorn. But if the owners of the
Thorn got in by negligence of theirs, of any sort, they could not
recover of the shippers. They could not recover of the William
Henry. Yet this was included in the verdict. The verdict was
against the evidence. All agree that the Thorn was in thirty feet
water; therefore in the channel. There was no night watch at the
time to sheer off. Doubtful if the light was visible; the place was
improper. In the William Henry all were on the look-out. The
800 feet at nine miles an hour, took one minute. The passenger
proves an order by the mate, to his steersman, and again to the
other vessel. But it did not reach the pilot's ear. The pilot
swears he did not see the vessel, owing to there being no light ;
and there was no time to repeat the order.

The opinion of the court was delivered by

GIBSON, C. J. It is an undoubted rule, that, for a loss from
mutual negligence, neither party can recover in a court of common
law ; and, so general is it, that it was applied in Hill v. Warren, 3
Stark. 377 ; s. C. E. C. L. R. 390, to the negligence of agents,
respectively appointed by the parties to superintend the taking
down of a party-wall. Courts of admiralty, indeed, decree accord-
ing to the circumstances, so as to apportion the loss ; but certain it
is, that a court of law, whether for its inability to adapt its judg-
ment to the merits of such a case, or whether for any other cause,
refuses to interfere at all. It has been pressed upon us, however,
that though such be the rule betwixt owners of coasting vessels or
wagons, it is because seamen and wagoners are the servants of their
employers, and have consequently power to affect them by their
acts ; that a carrier is not the servant of his employer, but an inde-
pendent contractor ; and that there is no more privity betwixt the
owner of the vehicle and the owner of the goods, than there is
betwixt the owner of a stage-coach and a passenger in it, who
may, it is said, have an action against the owner of another coach
driven carelessly against it to his hurt, without regard to the ques-
tion of negligence betwixt the drivers. The argument is plausible,
but the authorities are against it. Vanderplank v. Miller 1 was the
very case of an action by the owners of goods damaged by collision ;
and Lord Tenterden, without adverting to the supposed distinction
betwixt them and the carrier, directed that, if there was want
of care on both sides, the plaintiffs could not recover. The force of
the decision is attempted to be e,vaded by supposing the owners of
the goods to have been their own carriers ; but nothing in the

|| ' 22 E. C. L. 280 ; 1 M. & M. 169.H



321 SUPREME COURT [Dec. Term,

[Simpson v. Hand.]
report gives color to such a supposition ; and owners of both goods



'322]



and vessel would scarce have *brought their action for
damage to the goods alone. That case, therefore, is in



point; and though it was ruled at Nisi Prius, the counsel seem to
have been satisfied with the verdict. To the same purpose is
Smith v. Smith ; l the difference being that the person who had the
horse in charge at the time of the injury, was not a carrier, but a
bailee for hire. Still he was no more than a carrier, the owner's
servant ; nor was he less liable, on the contract, for actual negli-
gence. But the principle is founded in reason as well as authority.
There is at least privity of contract betwixt a merchant and his
carrier ; and the former, when he commits the management and
direction of his goods to the latter, giving him, as he does, authority
to labor and traval about the transportation of them, necessarily
constitutes him, to some extent, his agent; and this inference is
sanctioned by judicial decision. In Bedle v. Morris, Cro. Jac. 224,
an owner of goods stolen from a carrier at an inn, was allowed to
maintain an action for them against the innkeeper ; and as the
latter is liable only for things infra hospitium, and to passengers
and wayfaring men, as was ruled in Cayle's Case, 8 Rep. 63, it
follows that the action was maintained not on the right of property,
but on the relation of innkeeper and guest; and that the owner, to
bring himself within it, was allowed to treat the carrier as his
substitute. It will not be pretended that, had the inkeeper's vigi-
lance been put asleep by misrepresentation of the carrier in respect
to the value of the goods, it might not have been set up in bar of
the action ; yet that would have made the owner liable to the con-
sequences of the carrier's deceit. Neither will it be pretended
that an owner could recover for special damage, occasioned by gross
negligence of the carrier in suffering the goods to be tumbled into



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 36 of 75)