text:
The Clarita and the Clara

APPEALS from the Circuit Court for the Southern District of New York; the case being thus:

A company in New York, called the New York Harbor Protection Company, and whose business was the aiding, protecting, and saving vessels in the port of New York, when wrecked or in distress-including the rendering of aid, protection, and safety to such vessels on fire or threatened with conflagration-was the owner of a steam-tug called the Clarita. This tug was equipped, not only with means suited to assist vessels wrecked or in distress, generally, but with special apparatus for extinguishing fires, that is to say with powerful pumps and hose, worked by steam as fire-engines, also with axes and instruments for scuttling. The commander, too, was skilled in the use of such apparatus as well as in the ordinary management of a vessel in seasons of storm and occasions of distress from casualty and weather.

The dock of the vessel was at the foot of Canal Street, New York, where she was kept in constant readiness for service, with a crew on board, with fires 'banked,' so that at any time she sould be set in motion and brought into service.

She was in her dock and in this state on the evening of the 1st of August, 1870, having on board several hempen hawsers strong enough to tow the largest vessels, but not having any hawser of chain, nor a chain attachment for a rope hawser. Hempen hawsers, as was proved, are the sort of hawser universally used in the port of New York for towing vessels heavilly laden or disabled, and much preferable, in such cases, to chain cable. The only chains which the tug had on board were her anchor-chains, of from fifty to seventy fathoms long, down in the locker; very heavy chains, too heavy, indeed, to be handled in any sudden emergency.

Though constantly called on for assistance in cases of collision, springing of leaks, wreck, and other catastrophes arising from bad navigation, weather, or want of seaworthiness, and sometimes to extinguish fires before they had got much headway, the Clarita had never, in five years, been called on to tow more than one vessel in a state of conflagration, or one about to become in that state.

With this history, and in this state of things, on the evening aforesaid, and while the tug was in her dock at the foot of Canal Street, New York, her captain espied a smoke which indicated a fire, rising apparently out of the water's edge, at Hoboken, on the Jersey shore, opposite. He got steam up on his tug at once, and was shortly at the Christopher Street slip, Hoboken, from which the smoke was ascending. He here found that a ferry-boat of the Hoboken Ferry Company was on fire; the fire, however, being in her hold, and not yet having burst forth anywhere into flame. Numerous people were on or about her, assisting to put out the fire. A Hoboken fire company was doing what it could, and two other steamers in or near the dock were sending water into her from their hose. The tug having made herself fast to the ferry-boat by one of her hempen hawsers got to work and plied her engines vigorously. A gas-tank belonging to the ferry company, which, of course, was particularly liable to ignite and explode, was near by; the dock had numerous vessels in it, and there were houses close to the place which, if a conflagration took place in the dock, would perhaps take fire and be consumed. The tug worked diligently for an hour and more, but the fire being in the hold, which was filled with flame and smoke, and therefore could not be entered so as to direct the water advantageously, gained upon the most active and persistent efforts, and it was soon discovered that it had reached the deck over the hold and was ascending to the joiner-work, of which the cabins and wheel-house, and other light wood-work on deck were composed. The master of the burning ferry-boat, who, with the chief of the Hoboken fire department, was on board of her, now requested the captain of the tug to pull the ferry-boat out of the slip and tow her on to Hoboken Flats, which were the nearest flats, and not far off. The captain of the tug hereupon, and within five minutes, attached the hawser, by which on arriving the tug had been made fast to the ferry-boat, to an iron cleat on the bow of the ferry-boat, and the tug (with the master of the ferry-boat and men of the Hoboken fire department on board), backed out of the ferry-slip and then went ahead.

Although, as already stated, the steam-tug had no chain cable (other than unwieldy anchor chain) or chain attachment on board, it appeared by testimony given in the case that there was a light chain cable on a boat in the dock which had been assisting in putting out the fire. After the ferry-boat had been hauled about two hundred yards out of the slip, the flames burst out fore and aft and burned the hawser off, and the ferry-boat was drifted by the tide foul of a bark on the Hoboken side of the river, above the ferry slip, at anchor, before the men on the tug could get hold of her again, and set fire to the bark.

As soon as practicable, another hawser (hempen) was got to the ferry-boat, and she was hauled off from the bark.

With this second hawser the ferry-boat was got round, heading up the river, when this hawser, too, parted, from being burned off by the fire on the ferry-boat. Then, as soon as it could be done, a third hawser (this time a large hawser of seven inches) was taken to the ferry-boat in a life-boat belonging to the ferry-boat and by men from the ferry-boat and the Hoboken fire department, and was again attached to the ferry-boat. But this hawser, too, was burned off. The iron cleat to which these different hawsers had been attached remained standing in the boat.

On this third parting of the hawser which had been attached to the burning ferry-boat, every effort was made to get a line to her again as soon as possible, but before one was got to her she had drifted broadside upon the bows of a schooner, The Clara, at anchor in the river, with a proper anchor-light, but with all her men except one, who happened to be up and walking about, asleep below, and set fire to her fore-rigging, sails, and bowsprit. The place where the schooner lay anchored was about three hundred and fifty yards from the frong of the Hoboken wharves. The ferry-boat, which was 164 feet long, came midship on the bows. The tug soon hauled up by the schooner and sent and attached the hawser again, and for a fourth time, to the burning ferry-boat. This time, it was not burned off, and the tug, plying all her force, dragged the burning boat from the schooner away into the deep stream, where the hawser was cut and the half-consumed remains of the ferry-boat allowed to sink.

As soon as the hawser was cut, the tug returned to the schooner, which was now burning fiercely, and certain, unless aid came to arrest the flames, to be consumed entirely. The tug made fast to her, and after having plied her engines for two hours and more succeeded in extinguishing the flames.

The owner of the schooner, thus saved from entire destruction, now filed a libel against the tug, to recover damages for the injury which she, the schooner, had suffered from the fire.

The owners of the tug in turn filed a libel against the schooner, for salvage, as having saved her from being burnt up entirely.

The case was heard upon the cross-libels.

The owners of the schooner contended that the tug was guilty of negligence, in not having had and used a chain hawser. The owners of the tug alleged that their hawser was good enough, and that the catastrophe was an inevitable accident, and moreover that the schooner was to blame in not having had an auchor-watch, who would have seen the burning vessel drifting on her and would have got out of her way. The District Court was of the opinion—

(1.) That the attempt to tow the burning ferry-boat out into the stream by a hempen hawser was an act of negligence.

(2.) That the drifting of the ferry-boat was not an inevitable accident, but was the result of negligence on the part of those in charge of the steam-tug.

(3.) That the schooner, not being required by law to keep a watch under the circumstances, was without fault, and entitled to damages.

That court accordingly gave to the owners of the schooner damages compensatory of the partial destruction which she had suffered by being set on fire by the drifting and burning ferry-boat. And after such a decree dismissed, of course, and from necessity, the libel of the tug for salvage, in preventing her being burned as to her residue.

The Circuit Court on appeals confirmed the decrees, and from the decrees of the latter court these appeals were taken by the owners of the tug.

Mr. Van Santvoord, for the appellants:

The questions in the two appeals arise upon the same facts; and the question whether the owners of the tug are entitled to salvage for saving the schooner from being wholly counsumed, depends wholly on the question whether the tug wrongfully caused the schooner to be set on fire in the first instance. If she did not cause her so to be set on fire at all, a claim for putting out the fire is a just one. If the tug did wrongfully cause the schooner to be set on fire, a claim by the tug for putting out the fire which she herself wrongfully caused would be preposterous. We should not present it.

We confined ourselves, therefore, to the only question in either case, whether the tug wrongfully caused the schooner to be set on fire:

1. We say that she did not. It might be argued with a certain plausibility that all that was done here by the captain of the tug, was done under order of the master of the ferry-boat. The tug was a vessel of New York, and when she went into the docks of Hoboken, she put hereself under the authorities there. Both the master of the Hoboken ferry-boat and the engineer of the Hoboken fire department were aboard of the tug when she was drawing the burning ferry-boat out into the stream, and it was their men who carried the hempen hawser to the schooner at anchor.

2. It might be argued too with a certain plausibility that the schooner was not anchored in a proper place, just in face of the wharves of the Hoboken ferry.

3. We might assert with more confidence that the absence of a proper 'anchor-watch' should bar the schooner's claim, or, at least, and if the tug be found in fault, cause an apportinonment of the damages. A considerable time elapsed from the time that the hawser was burnt on the third occasion till the burning ferry-boat ran afoul of the schooner. Had there been an auchor-watch he could have sheered, by means of the wheel, and slipped his chain, when the schooner would have drifted, and the catastrophe would have been avoided. But none of these arguments are pressed by us, much stronger ones remaining.

4. Admitting that if anything was wrongfully done by any one in the case, the tug was responsible for it all, we assert that nothing was done wrong by any one; that the case was one of misfortune, or, as it may be equally well called, of inevitable accident.

It is to be observed in the first place that it is the interest of shipping that an enterprising company, like the one which owner this tug-a company which, at great expense, fits up a tug with powerful steam-pumps, and keeps the vessel ready with her fires banked, night and day, to move on a moment's notice everywhere about a harbor for useful service-should be encouraged. If in a great and sudden emergency it have not done everything which on a retrospect, coolly made after the event, may appear to have been the best thing, it should not be dealt with hardly.

Now, it is in evidence that such an occurrence as having to tow a vessel in flames was a very rare one, though extinguishing fires while they are in dock or at anchor may not be so uncommon a one; and that Manilla hawsers are the only hawsers in use in towing vessels. It is plain too on ascertaining that the fire could not be got under by the fire engines and pumps-the fire gaining upon these efforts, the flames having already broke out under the guards and reached her joiner work-that the only means of saving the ferry-boat and preventing the spread of the conflagration to the wharves and adjacent buildings and other property, was an immediate removal of her out of the slip, with a view, if possible, of beaching her on the nearest flat; it not being possible from the condition of her deck to bring her to anchor after getting out of the slip. A very short time, it is admitted, occurred between the time when the order was given to tow the boat out and the time when she was towed out. The occasion was emergent. Confusion prevailed. There was no one person in admitted command anywhere. The captain of the tug acted entirely well, therefore, in towing out the vessel with such hawsers as she was provided with, and as were at her command, though they were not incombustible. The case falls within Sir Francis Bacon's illustration of the fifth rule of his Elements of the Common Law, where, in illustration of his maxim Necessilas inducet privilegium quoad jura privata, he says:

'The law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as, in presumption of law, man's nature cannot overcome, such necessity carrieth a privilege in it.'

If these views be correct the claim for salvage is obviously just, and need not be enforced. The tug was not the cause of setting the schooner on fire, and was the cause of saving her after she had taken fire.

Mr. E. H. Owen, contra:

The first three positions of opposing counsel are but feebly defended. They cannot be maintained.

1. The burning ferry-boat was in charge of the tug, and the captain of the latter was in command of all, though others may have aided him. Though the owners of the ferry-boat may have advised or even ordered the tug to take the vessel out of the dock, they did not order the tug to set our schooner on fire.

2. The schooner was lawfully lying at anchor near the middle of the river; a place where all vessels anchor. She had a good and sufficient anchor-light-that is to say a light set in her forerigging-burning brightly. This is not disputed.

3. That she had no sufficient anchor-watch on duty at the time was not a fault. The statutory rules did not require such a watch. All that is required of a vessel at anchor is to have a proper light displayed. It is not customary for vessels like the schooner to have an auchor-watch, unless it be when there is fog, or the weather is boisterous and dangerous. But the want of an anchor-watch did not cause the collision.

It is said, however, that if there had been an anchor-watch when the danger became imminent the schooner might have been sheered by the use of her wheel or her cable slipped, and so got out of the way of the burning boat. This is assumption merely. With all hands on deck she could not have been sheered far enough either way to avoid the burning boat. The ferry-boat was 164 feet long, and it came down broadside towards and upon the bows of the schooner, and struck her about midship, and, therefore, to have avoided her, the schooner must have sheered over 82 feet, which was impossible, and so the master testifies.

Nor could the cables have been slipped by a single watchman. The necessity for so slipping the cable did not arise until the boat was coming down upon the schooner, when it would have been too late to call all hands from below.

4. The ground chiefly relied on by opposing counsel is as little to be maintained as any one of the others. Whoever attempted the removal of the burning boat was bound to use precautions to prevent her from being carried by wind and tide against other vessels lying at anchor in the harbor, corresponding to the danger and consequences of such a result. The danger was extraordinary, and more than usual precautions to secure and retain control of the burning mass were, therefore, required by ordinary prudence. Reasonable care in such circumstances is not be determined by the ordinary usages of tugs engaged in towing when no such circumstances of peril to others existed. Proofs, therefore, of the customary practice of tugs engaged in towing vessels in and about the harbor, to use hempen hawsers only, does not furnish a satisfactory test of the caution and care due from a tug-boat professedly engaged in the business of rescuing vessels from conditions of extraordinary peril, including fire on board.

It is obvious that a chain attached to the burning boat would have prevented the loss of control over her. The use of such a chain is not proved impracticable, and it is equally obvious that it was not only practicable but easy.

No heavy anchor-chain extending from one boat to the other, which the hands of the boat could not manage, was required. All that was essential was that the attachment to the burning boat extending a few feet therefrom should be incombustible. For the rest a rope or hempen hawser was sufficient. The parties expected the flames to spread through and over the burning boat. It was this expectation which induced the attempt to remove her from the slip. In view of this it was negligence to remove her under no other control than a rope which presumptively would be burned off so soon as the expected spread of the fire should reach it. In this respect it was not like a shifting of the location of the boat with a view to the extinguishment of the fire before it should thus extend. Before any hawser was attached for the purpose of drawing her from the slip, chains were to be found both on the ferry-boat and on the tug, and it is not to be doubted that a chain of suitable length to form a connection of the hawser to the burning boat might readily have been elsewhere procured.

5. These views, as we conceive, are so obviously right that we need say nothing about salvage; that claim falling to the ground as of course, if the decree of the court below giving damages against the tug for wrongfully setting the schooner on fire, is sustained.

Mr. Justice CLIFFORD delivered the judgments of the court, giving an opinion in each of the cases.

title: The Clarita and the Clara


text: Talk:The Clarita and the Clara

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Talk:The Clarita and the Clara


text:
The Clarita and the Clara/Opinion of the Court

IN THE CLAIM FOR DAMAGES.

I. Vessels engaged in commerce are held liable for damage occasioned by collision on account of the complicity, direct or indirect, of their owners, or the negligence, want of care or skill on the part of those employed in their navigation. Owners appoint the master and employ the crew, and consequently are held responsible for their conduct in the management of the vessel.

Whenever, therefore, a fault is committed whereby a collision ensues, that fault is imputed to the owners, and the vessel is just as much liable for the consequences as if it had been committed by the owner himself. Consequences of the kind, however, do not follow when the person committing the fault does not in fact or by implication of law stand in the relation of agent to the owners. Unless the owner and the person or persons in charge of the vessel sustain in some way towards each other the relation of principal and agent the injured party cannot have his remedy against the colliding vessel.

By employing a tug to transport their vessel from one place to another the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service, as they neither appoint the master of the tug nor employ the crew, nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master of the tug, is, in legal contemplation, made with the owners of the vessel employed, and the master of the tug continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation and management.

Apply those rules to the case before the court, and it is clear that the owners of the burning ferry-boat are not liable for the consequences of the collision, as the evidence shows to a demonstration that the steam-tug was in the charge of her own master and crew, and that those in charge of her undertook, in the usual and ordinary course of her employment, to transport the burning ferry-boat from one place to another over waters where such accessory motive power is usually employed, and consequently that the steam-tug, in the absence of the officers and crew of the tow, must be held responsible for the proper navigation of both vessels, and that third persons suffering damage through the fault of those in charge of such motive power must, under such circumstances, look to the steam-tug, her master or owners, for the recompense which they are entitled to claim on account of any injuries that their vessel or cargo may receive by such means.

Whether the party charged ought to be held liable is made to depend, in all cases of the kind, upon his relation to the wrong-doer. Where the wrongful act is done by the party charged, or was occasioned by his negligence, of course he is liable, and he is equally so if it was done by one towards whom he bears the relation of principal, but the liability ceases, in such a case, where the relation of principal and agent entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged. Grant that and it follows, beyond peradventure, that the owners of the ferry-boat are not responsible for the consequences of the collision, as it is clear that the officers and crew of the steam-tug were the agents of the owners of their own vessel and not of the burning ferry-boat.

II. Suppose that is so, still it is insisted by the respondents that those in charge of the steam-tug were without fault; that the collision, as far as they are concerned, was the result of inevitable accident, though they insist that it might have been prevented by proper care on the part of those in charge of the schooner.

Obviously the defence of inevitable accident finds no support in the evidence, even upon the theory assumed by the respondents, as they insist that the collision was occasioned by the fault of the schooner. Such a defence can never be sustained where it appears that the disaster was caused by negligence, for if the fault was committed by the respondent alone then the libellant is entitled to recover, or if by the libellant then the libel must be dismissed, or if both parties were in fault then the damages must be apportioned equally between the offending vessels. Unless it appears that both parties have endeavored by all means in their power, with due care and a proper display of nautical skill, to prevent the collision, the defence of inevitable accident is inapplicable to the case. None of the circumstances given in evidence favor such a theory, as the collision occurred on a fair, clear evening and in the open harbor, and inasmuch as the primary cause that led to it was one which ought to have been foreseen and removed by the employment of other means to attach the two vessels together it is plain that the case is one of fault.

III. Two faults are imputed to the schooner: (1.) That she was anchored in an improper place. (2.) That she had no watch on deck.

1. Argument to show that the collision occurred is unnecessary, as the fact is admitted, and it is equally clear that the schooner was lying at anchor with the signal light displayed required by the act of Congress, and under those circumstances the rule is well settled that the burden of proof is upon the respondents to show either that the steam-tug was without fault or that the collision was occasioned by the fault of the schooner, or that it was the result of inevitable accident.

Neither rain nor the darkness of the night nor even the absence of a light from a vessel at anchor, said this court, nor the fact that the moving vessel was well manned and furnished and conducted with caution will excuse such moving vessel for coming in collision with the vessel at anchor in a thoroughfare out of the usual track of navigation.

Mr. Parsons lays down the rule that if a ship at anchor and one in motion come into collision, the presumption is that it is the fault of the ship in motion, unless the anchored vessel was where she should not have been.

Undoubtedly if a vessel anchors in an improper place she must take the consequences of her own improper act. But whether she be in a proper place or not, and whether properly or improperly anchored, the other vessel must avoid her if it be reasonably practicable and consistent with her own safety.

Attempt is made in argument to show that the schooner was anchored in an improper place, but both the subordinate courts were of a different opinion, and the court here, in view of the whole evidence, concurs in the conclusion that that defence is not sustained.

2. Concede all that, and still it is contended by the respondents that the schooner was in fault because she did not have a sufficient watch, but the act of Congress contains no such requirement, and inasmuch as the evidence shows that the schooner was anchored in a proper place and that one of her crew was on deck, the court is of the opinion that the charge of fault made against the schooner in the answer is not sustained.

IV. Plenary evidence is exhibited that all the parties present on the occasion expected that the flames would presently burst through the decks of the ferry-boat at the time the steam-tug made fast to her in order to drag her from the slip where she lay, and to move the vessel into the stream, and both parties agree that it was in view of that expectation that the decision was made to move the ferry-boat from her resting-place, nor is it questioned by either party that if those in charge of the steam-tug had used a chain instead of a manilla hawser, the object contemplated might have been safely and successfully carried into effect.

Even ordinary experience and prudence would have suggested that the part of the hawser made fast to the burning ferry-boat should be chain, and that it would be unsafe to use a hawser made of manilla. Where the danger is great the greater should be the precaution, as prudent men in great emergencies employ their best exertions to ward off the danger. Whether they had a clain hawser on board or not does not appear, but sufficient does appear to satisfy the court that one of sufficient ength to have prevented the disaster might easily have been procured, even if they were not supplied with such an appliance.

All of these matters were fully considered by the district judge, and the same conclusions at which he arrived were reached by the Circuit Court. In those conclusions the court here concurs.

IN THE CLAIM FOR SALVAGE.

In this case the owners of the schooner admit that the steam-tug ultimately succeeded in dragging the ferry-boat clear of the schooner, and that she returned to the schooner after the ferry-boat sunk, and that she rendered service in subduing the flames and saving the schooner from complete destruction, but they deny, in the most positive form, that the libellants are entitled to salvage, or to any compensation by the way of salvage on account of the services rendered, for the following reasons: (1.) Because the schooner would not have caught fire if those in charge of the steam-tug had exercised due and proper care in their attempts to tow the burning ferry-boat from her slip up the river. (2.) Because the schooner was run into and set on fire by the carelessness, negligence, and inattention of those who rendered the alleged salvage service, and not from any accident, nor from any fault or neglect of duty on the part of the schooner.

Further discussion of the matters of fact involved in those propositions is unnecessary, as they have all been conclusively determined in favor of the owners of the schooner in what precedes, which leaves nothing for decision in the case before the court, except the question whether the claim for salvage compensation can be sustained in view of the facts set forth in the propositions submitted by the respondents.

Salvage is well defined as the compensation allowed to persons by whose assistance a ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict capture, or other marine misadventures.

Other jurists define it as the service which volunteer adventurers spontaneously render to the owners, in the recovery of property from loss or damage at sea under the responsibility of making restitution and with a lien for their reward.

Persons who render such service are called salvors, and a salvor is defined to be a person who, without any particular relation to the ship in distress, proffers useful service and gives it as a volunteer adventurer without any pre-existing contract that connected him with the duty of employing himself for the preservation of the vessel.

Enough appears in those definitions to show that the elements necessary to constitute a valid salvage claim are as follows: (1.) A marine peril to the property to be rescued. (2.) Voluntary service not owed to the property as matter of duty. (3.) Success in saving the property or some portion of it from the impending peril.

Public policy encourages the hardy and industrious mariner to engage in these laborious and sometimes dangerous enterprises, and with a view to withdraw from him every temptation to dishonesty the law allows him, in case he is successful, a liberal compensation. Those liberal rules as to remuneration were adopted and are administered not only as an inducement to the daring to embark in such enterprises, but to withdraw from the salvors as far as possible every motive to depredate upon the property of the unfortunate owner.

Such compensation, however, is not claimable in every case in which work and labor are done for the preservation of a ship and cargo. Suitors, in order to support such a claim, must be prepared to show that the property was exposed to peril and that the undertaking involved risk and enterprise, and that they were successful in securing the property and saving it to the owner, and that the service was voluntary and that it was not rendered in pursuance of any duty owed to the owner or to the property. Conditions of the kind are inherent in the very nature of the undertaking, and salvors, in consideration of the large reward allowed to them for their services, are required to be vigilant in preventing, detecting, and exposing every act of plunder upon the property saved, for the reason that the right to salvage compensation presupposes good faith, meritorious service, complete restoration, and incorruptible vigilance, so far as the property is within the reach or under the control of the salvors.

Seamen belonging to the ship in peril cannot, as a general rule, claim a salvage compensation, not only because it is their duty to save both ship and cargo, if it is in their power, but because it would be unwise to tempt them to let the ship and cargo get into a position of danger in order that by extreme exertion they might claim salvage compensation.

Pilots, also, are excluded from such compensation for any exertions or services rendered while acting within the line of their duty, but like other persons they may become salvors in legal contemplation, if they perform extraordinary services outside of the line of their duty.

Neither can passengers claim salvage unless they perform extraordinary service.

Persons otherwise entitled as salvors cannot be defeated in making their claim because the vessel was fraudulently imperilled by the master, unless it appears that they were parties to the fraud, or were cognizant of it while it was going on and did not interfere to prevent it as far as they could, or unless they endeavored to conceal the master's misconduct and screen him from detection.

Where two vessels come in collision, if one is not disabled she is bound to render all possible assistance to the other, even though the other may be wholly in fault.

Authorities to support that proposition are quite numerous, and it is very clear that if the vessel in fault renders assistance to the one not in fault, the former cannot make any claim for salvage either from the other vessel or the cargo on board, as it is her duty to render every assistance in her power.

Services of the kind, when required by duty, do not constitute a claim for salvage, and it is expressly decided that salvors are not entitled to reward for saving property which they had by their own wrongful acts contributed to place in jeopardy, and the court here fully concurs in that proposition.

Text writers, also, of high repute adopt the rule that 'persons who have contributed to place property in danger cannot be allowed to claim reward for rescuing it from the consequences of their own wrongful acts,' which is a principle applicable in all respects to the case before the court.

Cases may be found in which it is held that when one ship has rendered assistance to another ship belonging to the same owner that the ship rendering such assistance cannot claim a salvage reward, but the better opinion is that the rule laid down in those cases admits of exceptions, as where the services rendered were of an extraordinary character and were entirely outside of the contract duties of those by whom they were rendered.

Exceptions also exist to the rule that a steam-tug engaged in towing may not, in case she performs extraordinary services outside of her contract, be entitled to salvage compensation, if it appears that the services were meritorious and saved the property from an impending peril which supervened subsequent to the original undertaking.

None of these exceptional cases, however, can benefit the libellants in this case, for the reason that the insuperable objection to their right of recovery is that the peril to which the schooner was exposed was caused by those who rendered the alleged salvage service, and to the rule that such libellants are not entitled to recover there are no exceptions when it appears that the suit is prosecuted in behalf of the wrongdoers.

DECREE AFFIRMED IN BOTH CASES.


text: Talk:The Clarita and the Clara/Opinion of the Court


text: The Great Republic

title: The Great Republic


text: Talk:The Great Republic

title: Talk:The Great Republic


text:
The Great Republic/Opinion of the Court

APPEAL from a decree of the Circuit Court for the District of Louisiana, which court, on appeal from the District Court sitting in admiralty, had dismissed a libel filed by the steamer Cleona against the steamer Great Republic, for a collision.

At about five o'clock on the afternoon of the 28th of August, 1869, the Cleona, a small stern-wheel steamer of one hundred and eighteen tons, and whose speed was about seven miles an hour, left New Orleans bound up the Mississippi to Donaldsonville (a place seventy-five miles above New Orleans), with an assorted cargo of merchandise for various plantations on the two banks of the river. In a little more than half an hour afterwards the steamer Great Republic, a heavy side-wheel vessel of two thousand two hundred tons, running at the rate of twelve or fourteen miles an hour, and therefore one of the fastest on the Mississippi, set off up the river bound on a voyage to St. Louis. The Cleona, as she went up the river, had been, all the time, and was now, in her full view.

Sailing up the stream the Cleona had now twice made landings; first at what is known as the Stock-wharf, in the upper part of New Orleans, and afterwards at a point known as the Nine-mile Point, a point above the city on the opposite or western bank of the river.

Having made this second landing she steered for the other or eastern bank-the stream being in all this part of it about half a mile wide-and then after straightening up and running for some time parallel with the eastern bank and within about forty-five yards of it-turned somewhat shortly to cross to a place called Waggaman's Landing, on the western side, at which she wanted to discharge a part of her cargo. She was now perhaps two miles above the Nine-mile Point.

The Republic, from the time that she began to overtake the Cleona, had followed much in her course-this line perhaps being the one indicated more or less by the channel-and was so following when the Cleona steered from the Nine-mile Point to the eastern bank. Of course the Republic was rapidly gaining on the Cleona, and if no catastrophe had occurred, would have passed her.

By the rules of navigation on the Mississippi one whistle from the steam pipe indicates that a steamer wishes to pass on the starboard or right side; two, that she wishes to pass on the larboard or left, and three or more, that she is going to cross and land.

How far the Republic was behind the Cleona when the latter turned from the eastern bank to cross to Waggaman's Landing, was a matter about which the testimony was widely disrepant; the witnesses in behalf of the Cleona asserting that it was from six hundred to seven hundred and fifty yards, while those of the Republic fixed it, some of them, so low as forty yards, while all brought it within three hundred.

The river, as already said, was in this part of it a half a mile wide. There were no obstructions in it. Dusk was supervening, but it was not dark; objects being visible to both vessels, alike on the shores and on each other.

When the Cleona turned to cross from the eastern bank to Waggaman's Landing, the captain of the Republic, whose watch it was, was on the lower deck of the steamer conversing with a passenger. The passenger saw the Cleona turning, and said to the captain, 'Why, she is taking a sheer.' The pilot of the Republic was of the same impression. Instead, therefore, of keeping his own course, he followed the Cleona's. He perceived, however, before very long his mistake, as did all on both vessels very soon that a catastrophe was impending.

What signals were given in this state of things was, as usual in cases of collision, a matter where the evidence conflicted. But the result of the conjoint courses of the two vessels, and action on board of them-that is to say, on the one hand, of the Cleona's turning short to cross when the Republic was so near behind, and one the other, of the Republic's supposing that the Cleona still meant to go up the river, and attempting to follow her-and either of improper signals or inattention to right signals on one or other of the vessels, or on both-was a collision, by which the Cleona was careened, her stern end cut off, and two persons thrown off her into the river and drowned; a catastrophe the more deplorable since the evidence made it plain that if the boats had had fifteen seconds more time-if one of them had been ten feet further on, or the other ten feet further off-all misfortune would have been avoided; and that even five feet in the change of their positions would have prevented any serious injury.

We have already said that the testimony was discrepant.

'When I arrived below the Twelve-mile Point I saw the Cleona sheer to the larboard. She gave no signal when she thus started. After she had been running out about half a minute she gave the signal-two blasts of her steam whistle, which were given just as fast as a man can blow them on a steamboat-and continued her course out. As soon as I saw her sheer to the larboard, I, too, pulled to the larboard and was so swung-all helm-thinking that she was running off from the shore. When she started off to the larboard, I was below her in the current from two hundred and fifty to three hundred yards, and to the larboard of her about the same distance. Immediately after she sheered I pulled my boat, as I have said, to the larboard, rang, first, both stopping-bells, and then the backing-bells. I then told the boat's clerk who was in the pilot-house at the time, to halloo through the trumpet on the larboard to the engineer to 'back hard.' I hallooed the same thing through the starboard trumpet. The engineer on that side hallooed to me that the boat was backing as hard as she could. I cannot say how long the Republic had been backing when she struck the Cleona. The Republic being a low-pressure boat, it is impossible for the pilot to tell when she is backing until he feels the vibration of the wheels. It was, I suppose, about half a minute from the time the backing bells were rung until the collision occurred; not over half a minute. From the vibration of the boat, I was certain that the Republic was backing before she struck the Cleona.'

The engineer of the Republic testified thus:

'The bells on both sides were rung to stop both engines. The engines were stopped immediately. Then the check bells, one on each side. This was a notice to us to prepare to back. The engines were checked immediately. Then the backing bells rang on both sides. Both engines backed immediately. No time was lost in obeying these orders. My assistants were very good assistants, and handled the engines very well.

'I did not see the collision nor feel the jar of it. I knew nothing of it until some time after it had occurred. I therefore don't know how far the Republic was from the Cleona at the time the bells were rung, nor what length of time elapsed between the first ringing of the bells and the collision; ''but we were alongside of the Cleona before the larboard engine was stopped. I saw her from the engine-room. The Great Republic, if going up stream at twelve to fourteen miles an hour, can be stopped dead in seventy-five yards''. We can stop her in this way because she is a low-pressure boat.'

Witnesses, including the pilot from the Cleona, testified, on the other hand, that as the Cleona's head was directed across the stream, one blast of the whistle was blown as an indication for the Republic to keep to the right, which, had she done it, would have prevented all injury; that the Republic not minding that signal, the signal was repeated in about one minute and a half afterwards; that the Republic neither answered nor obeyed the signals, but kept running on; that the pilot of the Cleona seeing a collision impending, and one which, if the two vessels kept their then courses, would cut the Cleona in two, ordered on all head of steam and headed his vessel down stream, so as that the blow, if inevitable, might cut her wheel off, or cut off only an edge of her stern; that by this manoeuvre the injurious effect of the collision was mitigated; that, notwithstanding this, the Republic came upon the stern extremity of the Cleona with tremendous force, causing her to turn partially over, and throwing, as already stated, two persons overboard, who were drowned, and wholly disabling the Cleona, whose surviving passengers sought safety on the Republic.

A witness who had been a passenger on the Republic also testified to the bad action of her pilot, and to other unfavorable matters. He said:

'I am a pilot by profession, and have been for sixteen years. When the Cleona swung round to cross, Mr. Fulkerson, one of the pilots of the Republic (not at the time in charge of the wheel), with whom I was conversing, said: 'Look at that fellow. What is he going to do?' I replied, 'I suppose that he is going over the river to land.' I think that it was prudent for the Cleona to have attempted to cross the river where she did if she had business on the other side. She was then from three hundred to five hundred yards ahead of us. I do not think that at that time the Republic could have passed between the Cleona and the shore. The Cleona blew two whistles; two distinct blowings. Had not the Republic changed her course there would have been no collision. A little before the collision, and when the Republic was about one hundred yards from the Cleona, Mr. Fulkerson remarked to me that if his partner (that is to say, the pilot then in charge of the wheel) did not stop the Republic, she would be into the Cleona. I do not know whether her wheels were stopped at all before the blow. The Republic gave no signal. Properly it was her duty to give the first signal, stating which side she would take, as she was gaining on the Cleona.'

Testimony was brought in behalf of the Cleona to show that, when 'ashore,' the pilot of the Republic was addicted to drinking spirituous liquor, and had been drunk on shore, though the witness 'had never seen him at the wheel in an intoxicated state.'

The pilot himself, on cross-examination, said:

'I sometimes drink spirituous liquors. I took none for six hours before the Republic left port on that day. I could not say how many drinks I took. I did not keep any account of them.'

The court below (herein affirming the decree of the District Court) considered that the Cleona had crossed the river without proper signalling, too much under the bow of the Republic, and in the current, and that this was the cause of the disaster.

'The act of crossing the bow of a boat when in close proximity is forbidden by the rules of navigation, and is a most dangerous and reprehensible action at any time. No prudent pilot will attempt it. In the case of the Cleona, it was doubly dangerous, as the Republic was gaining on her so rapidly that a collision was probable, especially as the weight of proof seems to show that the signal of the Cleona was two blows of her whistle, which signal the pilot of the Republic was bound to interpret as an order to pass to the laborard, which he did.

'When the Cleona first started out from the shore she gave no signal to indicate her course, as she ought to have done; and when, in response to the two blows of the Cleona, the Republic pulled to the larboard, prudence should have dictated to the pilot of the Cleona to have stopped his boat at once and to have backed her heavily, instead of ringing his bell to crack on all steam and cross at all hazards. The pilot of the Republic was indeed guilty of a deviation from the rules and observances of navigation in not answering the signal of the Cleona; and though he acted promptly in letting his boat fall off to the larboard, he ought, in strict duty, to have answered the signal; but this omission had nothing to do with the collision, for his course was fully observed by apparently all on board the Cleona, and the pilot of the Cleona, if he thought that there was a misconstruction of his signal, should at once have stopped his engines and reversed. If this had been done a collision would not have taken place.'

From a decree of dismiss of the libel, made on this view, the present appeal was taken.

By the act of Congress of April 29th, 1864, entitled 'An act fixing certain rules and regulations for preventing collisions on the water,' it is enacted:

'ARTICLE 16. Every steamship, when approaching another ship, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse.

'ARTICLE 17. Every vessel overtaking any other vessel, shall keep out of the way of the said last-mentioned vessel.'

Messrs. William Tod Otto and J. A. Grow, for the appellants:

The Republic was in fault in five particulars:

1st. In not keeping her course, instead of bearing to the left, and following the steamer Cleona until she ran into that boat.

2d. It not stopping her own engines and checking her speed in proper time.

3d. In not altering her course to the starboard by porting her helm, when the collision became inevitable from the course she was pursuing.

4th. In not giving any signal, and in failing and neglecting to answer the signals given by the steamer Cleona.

5th. In her captain, whose watch it was, not having been on watch and control of the navigation of the vessel at the time of the collision; he having been sitting on the lower deck talking to a passenger, instead of being on the roof of the boat, and seeing and superintending her navigation.

The Cleona, whilst ascending the left bank, suddenly, without warning or signalling, changed her course to crossing the river, at a wrong place, not more than three hundred yards ahead of the Republic, in the current. The Republic thought she had sheered, and helmed astarboard to give her room to straighten up, but she kept on across, to the pilot's surprise, and gave two whistles and kept on crossing. Then danger became imminent. Then the Republic helmed hard astarboard; first, stopping-bells; then, backing-bells; and had begun to swing heavily to the larboard; but it was not possible to at once overcome momentum or suddenly change the course of the Republic.

1. Admitting the right of the Cleona to cross the river when and where she pleased, still that vessel was in fault in exercising this right, under the circumstances; because it could not be done without the greatest peril to the Cleona herself, and without equal danger to the far more valuable Republic and her freight, and her much larger crew and number of passengers. It is fault for a pilot to persist in the exercise of an undoubted right, when, by refraining from its exercise, damages can be avoided.

This persistent act of folly on the part of the Cleona in crossing in front of the Republic was the beginning, continuance, and end of the disaster.

II. Nor was it fault in the Republic not to answer the Cleona's signals. Because—

1st. They were not the proper signals for a crossing boat.

2d. They were embiguous signals, and the Republic could not known whether they were intended to direct her to the starboard or to the larboard.

3d. They were in every way calculated to mislead, and should not have been answered.

4th. They were susceptible of three different interpretations; and an answer, even if responsive to the views and intentions of those on the Cleona, would have been useless and unprofitable.

III. The fault was not on the Republic for not replying to the Cleona's signals, but on the Cleona, for having made signals which were no indication of her intention to cross; but which, according to her own account, were given for a different purpose, and so hurriedly, imperfectly, and tardily that any intelligent response to them was impracticable; signals which, if they had been acted upon by the Republic, would in all probability have been followed by a result even more disastrous than the one which took place. This is true at least of her alleged signalling to helm astarboard.

The intemperance of the Republic's pilot has not been proved. There are few seamen who, when ashore, do not occasionally drink strong drink, and sometimes too much of it. Yet those same men, when on duty, or liable to be put on duty, will never touch it. The pilot here had touched nothing intoxicating for seven hours before the catastrophe.

Mr. Justice DAVIS delivered the opinion of the court.

There is some excuse, even for a party in fault, when two boats collide in tempestuous or foggy weather, or on a dark night, but there are no exculpatory circumstances attending this disaster. It happened before dark, in the middle of the Mississippi, and when the light was good enough to distinguish small objects on both banks of the river. The weather was clear and calm, and the river unobstructed, affording ample room for passage on either side of the point where the vessels collided.

It is very plain that the collision ought to have been avoided, and the inquiry is, who is to blame for it. It almost uniformly happens in cases of this description that different accounts are given of the occurrence by those in the employment of the respective vessels, and that the court has difficulty in this conflict of evidence of deciding to which side a preferable credence should be given. There are generally, however, in every case, some undeniable facts which enable the court to determine where the blame lies, and this case is one of that character.

The is no dispute that the Cleona was a small sternwheel boat of the burden of 118 tons, that the steamboat Great Republic was of the burden of 2200 tons; a large and very fast vessel with side wheels; that both boats crossed the river, from the right to the left bank, just above Nine-mile Point, and straightened up on the left bank and ran parallel with the shore for some time, the Cleona being some distance, ahead, and the Republic following almost in her wake; that just previous to reaching Twelve-mile Point the Cleona started to cross the river in an oblique direction, intending to make a landing at Waggaman's plantation to put out freight; that the Republic kept bearing to the left, following the Cleona, instead of keeping her course, and finally overtook her about the middle of the river, and that the collision occurred. There is a great deal of discrepancy in the testimony relative to the distance between the two boats at the time the Cleona started to cross for the Waggaman plantation. Under the most favorable circumstances it is impossible to measure distances on the water with accuracy, but in times of excitement there is very little reliance to be placed on the opinion of any one on this subject, and especially is this so when the condemnation of a boat may depend upon it. If the Cleona was only some two or even three hundred yards ahead of the Republic, it was certainly imprudent in her officers to undertake to cross the river, but if she was more than double this distance in advance there is no reason why she should not have attempted to cross if she had business on the opposite side.

Without discussing the testimony to show on which side the probabilities are, there are certain things in connection with this part of the case which are inconsistent with the theory advanced by the respondents. According to the testimony of nearly all the witnesses the Republic was going twice as fast as the Cleona, or, in other words, making two hundred yards to the Cleona's one hundred. It is quite clear that the Cleona was not more than forty or fifty yards from the left shore when she turned to cross over, and must have sailed to reach the middle of the river (a half mile wide at that point and confessedly the place of collision) nearly, if not quite, four hundred years, and occupied, at her rate of speed, at least two minutes of time in doing it. As the Republic was swinging to the larboard, which would increase her distance outside of the Cleona, she must have gone considerably over eight hundred yards to reach the point of collision. Besides, if the distance between the two boats when the Cleona undertook to cross was as short as the respondents say, the collision would have occurred much sooner, as the speed of the Republic, by the weight of the testimony, was twelve miles an hour, enabling her to make three hundred and fifty yards in one minute. It would, therefore, seem quite clear that the Cleona was far enough ahead to cross with safety, on the supposition that the following boat would pursue the prescribed rules of navigation. A part from this view of the subject the Republic cannot escape condemnation if the case be tested by the account which the pilot at the wheel gives of the affair. He says that he thought when the Cleona turned to the larboard she was sheering-running off from the shore; that at this time the Republic was below her in the current about two hundred and fifty or three hundred yards, and to the larboard of her about the same distance; that as soon as the Cleona sheered to the larboard he pulled to the larboard, and rang first the stopping-bells and then the backing-bells, and that the Cleona gave no signal until she had been running out about half a minute, when she blew two blasts of her whistle, and that the collision occurred in about half a minute from the time the backing-bells were rang. This pilot acted on the belief that the Cleona had sheered when she made the sudden turn, and, therefore, followed her until he overtook her in the middle of the river, instead of keeping his course, which the whole evidence shows would have prevented the collision.

That the Cleona's movement was not a mere sheer is manifest enough, but what right had the pilot to proceed on that supposition? Impressions of this sort are not admissible, and ought never to be entertained by a pilot, and if disaster occurs the consequences must rest on the boat he is guiding. The cause of this collision is clearly traceable to this mistake, and, to use no harsher term, the pilot showed great incapacity on the occasion. It was his duty to have kept his course, and if he had done this instead of swinging to the larboard the accident would not have happened. Even had he ported his helm but for a few seconds after the danger was imminent, it would at least have checked the swinging of his boat to the larboard, and this would have prevented the disaster, as the evidence shows ten feet would have cleared the Cleona, and five feet saved everything except a few of her wheel-arms

As boats are not apt to sheer in deep water there was no excuse for the mistake made by the pilot. If, however, sheering were possible, as it is out of the common course of things, ordinary prudence would have told this pilot to have exchanged signals, so as to have understood what the movements was. Instead of this he did not answer the signals of the Cleona, which the law says he must do, in order to avoid mistakes. Two whistles were blown on the Cleona, which this pilot and others on board the Republic interpreted as meaning but one signal. Whether these whistles constituted one signal or two, answer should have been made, and, it may be, if this had been done the result would have been different.

The signals were given by the Cleona for each boat to keep to the right, and, if seasonably given, were the proper ones.

It is said, however, that the Cleona should have given three whistles, indicating a purpose to land, but the boat was not close enough to land, and all the signal that was required was one which should tell which side she desired to take.

But the pilot says no signal was given by the Cleona until half a minute after she turned to cross. If so, and the Cleona omitted such a plain matter of duty, why did he not supply this omission by signalling as soon as he discovered the danger? That he thought danger was imminent as soon as the Cleona made the turn is manifest, because he says he rang the bells at once to stop and back. It was, however, his duty, as his boat was astern and gaining rapidly on the other, to have given the first signal; but even if this were not so, any self-possessed pilot, having a due regard for life and property, as soon as danger was threatening, would have signalled in order to call the attention of the other boat to the condition of things. If this had been done, is there any reason to suppose the signal would not have been obeyed? and if obeyed the courts would never have been troubled with this case. The precautions against danger of necessity, in any case, rest to a greater extent upon the boat in the rear than upon the boat in advance, and this is eminently true of a large and fast steamer following a small and slow boat.

But the pilot says that as soon as the Cleona turned to cross, he took instant means to stop and back his boat. If so, it is singular that his boat, having two hundred and fifty yards to go, almost in the same direction with the Cleona, run her down with great violence; but the testimony of the engineer of the Republic shows, unmistakably, that the pilot, to say the least, is mistaken in this particular. Indeed, it is very doubtful from the evidence whether the engines of the Republic were stopped at all until the collision occurred, but if they were, it was at a point of time much later than that named by the pilot. It is true the pilot gave the signal to stop and back, and this signal was obeyed, but the engineer does not known how far off the Cleona was when he was signalled to stop and back, nor can he tell what period of time elapsed between the first ringing of the bell and the collision. He does tell, however, the important fact that the Republic, going up stream at the rate of twelve or fourteen miles an hour, can be stopped 'dead' in seventy-five yards, and gives the reason why she can be stopped quicker than ordinary boats of her class navigating the Mississippi River.

In the light of this testimony, which must be accepted as true in the absence of any evidence to the contrary, plainly the pilot did not take the steps to check the speed of his boat when he says he did, nor, in fact, until the collision was inevitable.

There is evidence in the record tending to show that the pilot was addicted to drinking when ashore, and he confesses to drinking on that day, but not for six hours before he left port. It may be that he was not under the influence of liquor on this occasion, but if not, his conduct is inexplicable on any other theory than ignorance of the ordinary rules of navigation, or reckless inattention to duty. There were ample means and opportunity to avoid this collision, and yet it occurred. In the midst of danger seconds of time are important, not to speak of minutes, and the clear-headed pilot who recognizes this fect, and makes no ventures, is not apt to bring his boat into trouble. Practical steamboat men, passengers on board the Republic, understood the movement of the Cleona to be for the purpose of crossing the river, and yet the pilot in charge mistook it for sheering. They could see plainly enough if he kept his course the collision woule have been avoided, and there was plenty of room to pass on the starboard, and he took exactly the opposite direction. With ability to stop his boat in seventy-five yards, he does not do it in two hundred and fifty yards. In charge of the wheel of one of the fastest and largest steamers on the river, and in plain sight, all the way from New Orleans, of a small coasting vessel engaged in landing freight and passengers at the plantations on both sides of the river, he runs her down with such violence as to cause her to careen over, without using any signals at all, or answering those she gave, or taking any precaution until too late to escape danger. If all this does not constitute mismanagement, to use no harsher word, it is difficult to understand what does. The slightest exercise of ordinary skill and prudence would have avoided the accident. Even after the peril was imminent, the simple act of bearing to the starboard, instead of the larboard, would have brought the Republic's stem clear of the Cleona's stern.

There are other witnesses for the respondents who, in the matters of distance and time particularly, differ with the pilot at the wheel, but we do not feel called upon to review their testimony, as it does not, in our judgment, change the result, and would unnecessarily lengthen this opinion.

It may be that this collision would have been avoided if there had been any proper officer in good season on the roof of the Republic superintending her navigation. The pilots seem to have had, on this occasion, the whole charge of her navigation, for the captain, whose watch it was, was sitting on the lower or boiler deck, talking to a passenger, until his attention was called to the danger of a collision.

Under the circumstances of this case, the burden is on the Republic to excuse herself, she being the following vessel, and having actually overtaken the Cleona and run her down. And in any case of collision, whenever it appears that one of the vessels has neglected the usual and proper measures of precaution, the burden is on her to show that the collision was not owing to her neglect.

If we are correct in our own interpretation of the evidence, enough has been said to condemn the Republic, and there is nothing in the record to excuse her.

As we have seen, she could have avoided this collision, even after danger was imminent. If she had stopped, or ported her wheel a second or two before the collision occurred, she would have gone clear of the Cleona. On the contrary the Cleona's course after she saw the Republic following her, was to try and get out of her way. This course she pursued diligently, for she packed on all the steam possible, and succeeded so far as to save her hull, and came near escaping altogether. On a full and fair consideration of the whole evidence, we are satisfied the officers of the Cleona, when the boat was turned to the right shore, had no ground to fear a collision, and that the boat itself was far enough ahead to cross with safety, if the Republic, instead of following after her, had pursued her course on the left side of the river. It is pretty clear that the Cleona did not blow her whistle for each boat to keep to the right, as soon as she started for the opposite shore. This omission was a fault, but this fault bears so little proportion to the many faults of the Republic, that we do not think, under the circumstances, the Cleona should share the consequences of this collision with the Republic.

DECREE of the Circuit Court REVERSED, and the cause remanded, with directions to enter a decree for the libellant and for further proceedings in conformity with this opinion.

REVERSAL AND REMAND ACCORDINGLY.

title: The Great Republic/Opinion of the Court


text: Talk:The Great Republic/Opinion of the Court


text:
United States v. Villalonga

APPEAL from the Court of Claims; the case being thus:

The third section of the act of Congress of March 12th, 1863, which authorizes a suit against the United States for the recovery of the proceeds of sale of captured or abandoned property, enacts that—

'Any person claiming to have been the owner of any such abandoned or captured property, may at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of the court of his ownership of said property, of his right to the proceeds thereof, and that he was never given any aid or comfort to the present rebellion, receive the residue of said proceeds after the deduction of any purchase-money which may have been paid, together with the expense of transportation and sale of said property, and any other lawful expense attending the disposition thereof.'

Under this enactment one Villalonga filed a petition in the court below to recover the proceeds of four hundred and ninety-three bales of cotton which were seized by the army of the United States at Savannah, in December, 1864. After its seizure the cotton was turned over to the agents of the Treasury Department and sold, and the proceeds of the sale were paid into the treasury. Of the whole number of bales captured, one hundred and ninety-six belonged to Villalonga, but the remainder he had received as a cotton factor from various persons, and had made advances thereon in money of the Confederate States. The aggregate of these advances was $51,153. It did not appear from the case as found who these different owners were, how much had been advanced to each, or what was the value of the advances in money of the United States. Upon this state of facts the Court of Claims gave judgment in favor of Villalongs, not only for the proceeds of sale of the cotton which belonged to him in his own right, but also for the entire proceeds of that which he had received as a factor, and upon which he had made advances.

The court rested its judgment upon the case of Carroll v. United States; a case in which property owned by a disloyal person, had after his death, and when in the hands of the administrator of his estate, who was loyal, been seized by the government under the above-quoted Abandoned and Captured Property Act, and sold. This court then adjudged, that on a claim by the loyal administrator, the disloyalty of the decedent did not bar a recovery; that the administrator, who, said the court, 'had a title on which she could maintain trespass or trover,' was to be considered 'owner,' within the meaning of the Abandoned and Captured Property Act.

The Court of Claims, in support of its judgment, said:

'The Supreme Court of the United States decided in Carroll v. United States, that a suit may be maintained under the Abandoned and Captured Property Act by one who was not the owner in his own right, but who, at the time of seizure, was possessed of the property under a title upon which he could maintain an action of trover or trespass, and who, at the time of bringing suit, was entitled to receive the proceeds as the trustee or representative of parties not before the court. We perceive no difference in principle between the case of an administrator and of a factor in possession with a lien upon the property for advances made. The factor is entitled to hold the property. He may sell it to repay his advances, or maintain an action of trover or replevin, to the exclusion of any action by his principal, and on recovering its value he becomes a trustee of the original owner to the extent of his residuary interest. It may be doubted whether the original owner, not in possession, not entitled to possession, and not primarily entitled to the proceeds, could maintain a suit here under the statute; and it is tolerably certain that he and the factor could not have brought several and conflicting suits for their respective interests, and compelled this court to settle disputed accounts between them. Therefore it seems tolerably clear that this suit is properly brought by the factor, who, on recovering, will be liable to his principal of the surplus after repaying his own advances, as if this suit were an action of trover brought in a court of the common law.'

Whether the judgment of the Court of Claims, given on this view of the case, of Carroll v. United States, was correct on such a state of facts as existed in the present case, was the question now presented, and the answer to it depended, of course, upon the answer to the antecedent inquiry whether, as to the cotton upon which the claimant had made partial advances as a factor, he could be considered the owner thereof, and as having a right to its proceeds, within the meaning of the act of Congress.

Certain laws of Georgia, which the claimant relied on as bearing on his case, were as follows:

'SECTION 1987. The lien given by the common law to attorneys, factors,. . . pawnees, and others, under special circumstances (except the vendor's lien), are recognized by and may be enforced under the law of Georgia.

'SECTION 2090. A factor's lien extends to all balances on general account, and attaches to the proceeds of the sale of the goods consigned as well as to the goods themselves.

'SECTION 2965. The owner of personalty is entitled to the possession thereof. Any deprivation of such possession is a tort for which an action lies.

'SECTION 2966. Mere possession of a chattel, if without title or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession.

'SECTION 2967. Trover may be used as a form of action to recover the possession of chattels, an alternative verdict in damages, to be discharged on delivery of the property that has been taken; but it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought.

'SECTION 2969. In cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for the interference with his general property.'

Mr. G. H. Williams, Attorney-General, and Mr. John Goforth, Assistant Attorney-General, for the United States, plaintiff in error:

The right of the factor to the possession of this property was limited by the amount of his advances. This would be true putting the case on general principles. And there is nothing in the Code of Georgia which changes these general principles. To the extent of the interference with his 'special' property, that code, by its section 2969, gave him an action of trespass, while a concurrent right of action is given to the bailor for interference with the general property. No right is given to the bailee or tenant in possession to recover, in an action in his own name, for the injury done to the rights of the general owner.

The cotton having been taken under authority of law, by a force which the factor could not resist, he has incurred no personal responsibility from its seizure.

The personal loss or damage suffered by claimant, of course, is measured by the value of the advances. He had no interest in the cotton beyond these.

Carroll's case does not sustain the judgment of the court below.

Messrs. J. W. Denvers and C. F. Peck, contra:

It is objected, as respects the cotton not, in fact, owned out and out by Villalonga, that if he was entitled to judgment at all, his recovery should have been limited to his own interest as factor. But a factor who sues, sues in his own right. He is owner of the property for the purposes of the suit. In Carroll v. United States, the administratrix was not more the representative of the testator than the factor here was of the owner of the reversionary interest. But this court held the administratrix to be owner.

If this position be true in cases generally, as this court declared it in Carroll's case to be, much more is it true in this particular case. By the law of Georgia, from which State this case comes, the factor is regarded as the owner of the property held by him, as against those taking it from his possession. The code (section 2996) gives an action of 'trover' in a suit like this, to one who is merely possessed of chattels. Now the action of trover is founded on property; and property must be alleged in the narr. Without property so alleged the action cannot be maintained. The code, therefore, for the purposes of a suit like this one, makes mere possession evidence of property, in other words, declares that the possessor is to be regarded as owner.

The theory of the Captured and Abandoned Property Act, as explained by this court in United States v. Klein, is that property found by armies in the South was gathered and preserved from destruction for the purpose of awaiting such action as the political department of the government might see fit to take; that no title or right was divested by the seizure, but that this was an incipient step by which the United States might afterwards acquire title through appropriate confiscation proceedings in the courts. But where, as in this case, no offence had been committed full restitution should be made. The United States, therefore, in this case became bound to make restitution. Is there any violence done to the course of law, or to the cause of justice, because in a court not governed by common law forms, the factor, from whose possession the cotton was taken, obtains a decree that restitution be made to him? The justice and equity of the case is that the factor should recover the entire proceeds, and make his own settlement with his principals, otherwise the Court of Claims would be compelled to decide between them the questions of commission, storage, amount of advances, rate of interest, &c.; and that court was never intended to adjust controversies between individuals, in which the government has no interest.

The principals in this case having clothed the factor with a special ownership in the property, have left him to assert the title for their use and benefit. They have been fit to continue him as their representative, and are now awaiting a settlement at his hands, as soon as he shall receive the proceeds of the property intrusted to him.

The appellant assumes that if the principals could maintain their action here, then the factor cannot recover for their interests. This is a mistake. There are many cases in which an election is given either party may bring the action, but one only can recover.

'In the case of a general as well as special property, the action may in most cases be brought either by the general or special owner, and judgment obtained by one is a bar to an action by the other.

And this principle is applicable to actions ex contractu, as well as to actions founded in tort.

Reply:

Though the action of trover is undoubtedly founded on property as distinguished from possession, a special property is sufficient to maintain it, and is just as good for that purpose as a general property. Such special property we admit the factor to have, but the general property being still in his principal, our argument remains unanswered. The distinction between the two sorts of property is strongly recognized in section 2969 of the code.

Mr. Justice STRONG delivered the opinion of the court.

title: United States v. Villalonga


text: Talk:United States v. Villalonga

title: Talk:United States v. Villalonga


text:
United States v. Villalonga/Opinion of the Court

No doubt a factor who has made advances upon goods consigned to him, may be regarded, in a limited sense, and to the extent of his advances, as an owner. Yet, in reality, he has but a lien with a right of possession of the goods for its security. He may protect that possession by suit against a trespasser upon it, and he may sell the property to reimburse advances; remaining, however, accountable to his consignor for any surplus. But after all he is not the real owner. He is only an agent of the owner for certain purposes. The owner may, at any time before his factor has sold the goods, reclaim the possession upon paying the advances made, with interest and expenses. He has not lost his ownership by committing the custody of the goods to a factor and by receiving advances upon them. He is still entitled to the proceeds of any sale which may be made, even by his agent, the factor, subject only to a charge of the advances and expenses. A factor, therefore, notwithstanding he may have made advances upon the property consigned to him, has but a limited right. That right is sometimes called a special property, but it is never regarded as a general ownership. At most, it is no more than ownership of a lien or charge upon the property. Such is unquestionably the doctrine of the common law. And there is nothing in any statute affecting this case that changes the doctrine. Certainly the statutes of Georgia, whence this case comes, have no such effect. In the code of that State of 1861, while a factor's lien is recognized and declared to extend to all balances on general account, and to attach to the proceeds of sale of goods consigned as well as to the goods themselves, there is nothing that declares he has anything more than a lien protected by his possession. Injuries to that possession may indeed be redressed by action in his name, and it may be assumed that upon contracts of sale made by him he may sue, but all this is perfectly consistent with the continuance of the general ownership in his consignors until he has made a sale. And there is a very significant clause in the statutes of the State which shows that a factor there has not the general property. In section 2969, of the article respecting injuries to personalty generally, it is enacted that 'in cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment will give a right of action to the bailee for the interference with his special property, and a concurrent right of action to the bailor for interference with his general property.' If this applies to the case of bailment to a factor, as is supposed by the defendant in error, it is a clear declaration that the factor's right does not extend beyond a special property, a mere right to hold for a particular purpose, and that it does not amount to ownership of the property consigned to him. And there is nothing in the new code of Georgia, or in any of the decisions of the Supreme Court, that is variant from this. Admit that a factor may maintain an action when his possession is disturbed, still it is a question what may he recover? Under the statutes of Georgia he can recover only for the injury which his special property, namely, his lien, has sustained. For all beyond that, the general owner may sue. The property of that owner is not vested in his factor.

If, then, it be, as was said by the Chief Justice in Klein's case, that the government constituted itself the trustee of captured or abandoned property for the original owners thereof, it is hard to see how the trust can exist for the benefit of the owner of a special property therein beyond the extent of his interest, which, as we have seen, in case of a factor, is measured by the amount of his advances and expenses.

For all beyond that, by the law of Georgia, the original owner who consigned the goods to the factor might sue, and for that original owner the government became a trustee of all beyond the factor's interest, according to the doctrine of Klein's case.

In this view of the case in hand it is clear that the claimant is not the 'owner of the' captured 'property,' 'having a right to the proceeds thereof,' within the meaning of the Captured or Abandoned Property Act. He owns of the cotton consigned to him nothing but a lien for his advances and expenses, and he is, therefore, not entitled to the entire proceeds of the sale of the property.

There are other considerations that support this conclusion. Plainly it was the intention of Congress, manifested in the statute, that no person should be permitted to recover out of the treasury any of the proceeds of sale of the property captured or abandoned, except those who had given no aid or comfort to the rebellion. But if a factor who has made advances, no matter how small, may recover the entire proceeds of a consignment made to him, not only what he has advanced, but the share of his principal, the intention of the law may be wholly defeated. He may have received consignments from persons most active in promoting the rebellion, and he may have advanced only one dollar on each bale of cotton consigned. If, now, he can recover the entire net proceeds of the sale of such cotton paid into the treasury, his consignors, through him, using him as a cover, escape entirely from the operation of the provision of the statute-that no one hall have a standing in the Court of Claims who has given aid and comfort to the rebellion. A construction of the law which admits of such a consequence cannot be correct. The intention of Congress is not thus to be evaded.

There is yet another consideration not to be overlooked. Under the act of March 3d, 1863, amending the act to establish the Court of Claims, that court has power to consider and determine all set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or other claims which the government may have against any claimant in the court, and render judgment against such claimant if he be found indebted to the government. Can a debtor to the United States evade his liability to a judgment against him by consigning his property to a factor and obtaining some advances? May the factor recover all that is in the treasury, though the government may have large claims against his principals, who are the real parties in interest? We cannot think the acts of Congress admit of such an interpretation. These considerations show that the 'owner,' spoken of in the third section of the Captured and Abandoned Property Act, 'having a right to the proceeds thereof,' is he who has the legal interest in those proceeds, and that a factor who made advances before the capture can, at most, recover only to the extent of his lien.

The court below rested their judgment upon Carroll's case, but that case, in our opinion, has little analogy to this. There, an administratrix of a deceased person was the claimant, and it was held to be no bar to the suit that the decedent gave aid and comfort to the rebellion, the property having been taken after his death from the administratrix, and not from him, and the administratrix was declared to be the owner within the meaning of the statute. Undoubtedly she was the full legal owner, entitled both in law and in equity to the entire property. Hers was the only title which existed at the time of the capture. Through whom she acquired it was deemed immaterial. It was sufficient that no other person had a definite right. This is no such case. Here there are owners, both in law and in equity, other than the claimant, and the statute has opened the Court of Claims for them, if they have never given aid or comfort to the rebellion. The present claimant, at most, is entitled to no more than the net proceeds of sale of his own cotton, one hundred and ninety-six bales, and the amount of his advances on the other cotton, reducing those advances to their worth in the money of the United States at the time the advances were made.

JUDGMENT REVERSED, and the cause REMITTED with instructions to proceed.

IN CONFORMITY WITH THIS OPINION.


text: Talk:United States v. Villalonga/Opinion of the Court


text: County of St. Clair v. Lovingston

title: County of St. Clair v. Lovingston


text: Talk:County of St. Clair v. Lovingston

title: Talk:County of St. Clair v. Lovingston