TUllO
11M· .IlUn'l'AGU.
259
THE
MURTAGII.
(Distrz"ct Court, S. D. New York. . 3une·19, 1883.) 1. TUG Tow-NEGLWENCE-U:;;SEAWORTIIY BOATS. Where boats in a tow, hy their condition and their are obviously unfit to encounter the perils of a proposed trip, the owners of the tow and of the tug, Loth concurring in the trip, should be held liaLle in case of loss or d:.lInage.
2.
SA)!E-TuIPS OF EXTI:A II.\ZARD.
The aL"ve rule does not necessarily apply to all trips, anout New York nay, of open-Lleck cOlll-Larges, but only to trips under circumstances of .wirlent hlvard. The owner of goods is l<>gallychr.rgeahle with knowledge of the ohvi()lls gen. eral character and description of the vessel in whieh his goods are shipped; and if he employ a boat obvionsly unfit for the trip, and loss happen thereby, as ag,linst third persons also char:!eable with negligence, he can rccover but half his damagcs.
3.
S.UlE-OWNER OF GOODS CHARGEAllLE WITH KNOWLEDGE.
4.
SAME-SHIPPER OF COAL.
An owner of coal, shipping it (In board an open boat, l1as a rIght to assume that necessary care and caution will bp, exercised, hath by her owner and by the tug, in 1I0t going out in hazardous weather; and if the latter do so, and the owner of the coal is not privy nor consenting tuereto, he lllay recover of either ·his whole damage. 5. SA)1E-HHODIAN LAW.
under the Rhodian law tIle shipper put gOOGS on an ala vessel at his own peril, by modern law he is protected by an implied warranty of seaworthiness; and, as against third persons, he can recover his full loss, unless her unfitness were actually known to him, or was a matter of such general notoriety that his knowledge or neghgence is presumed. SAME-ACTION FOR D.UfAGES-FomIER SUIT ARm.
The owner of a vesst'!, in case of injury to the vessel and cargo, may maintain an action for damage to both against another vessel causing. the injury; and after the latter has been once arrested, and given bail for the whole damage, if the owner of the cargo afterwards cause all claim on his account to be Withdrawn from the he cannot, ordinarily, again maintain an action against the same vesscl in rem, and arrest her a second time for the same damage. :KOT TO SUE-SECOND SUIT IN RE)!.
But where an agreement was made with the owner of the cargo that be would not hring suit, but that his elaim should he settled according to the event of 8 suit of the owner of th<> vcssel injured, and pursuant thereto he withdrew his claim as soon as he discovered that it was embraced in the other snit, held, that he miglIt afterwards maintain a second suit in rem pursuant to the agreement.
In Admiralty. Beebe, Wilcox & IIob7Js, for libelant. E. D. JIcCarthy, for claimants. BROWN, J. The libel in this case was filed by the owner of two cargoes of coal, on board the barge J. Stackpole and the barge A. J. Ser.is, to reco.er damages for the loss of the coal through the sinking of the barges on the twenty-ninth of November, 1879, on their way · from Port Johnson to New York, in tow of the steam-tug William Murtagh. The two barges were part of a tow of 10 boats which left the "Stakes" near Port Johnson at about 2 o'clock P. M., forming
2t:iO
FEDERAL
REPORTER.
three tiers, with four boats in the first two tiers and two in the third. The J. Stackpole was the OUter boat on the port side of the front tier, and loaded with 225 tons of buckwheat coal. The A. Servis was loaded with 212 tons of chestnut coal, and was the second boat from the port side of the second tier. When the tng started from the "Stakes" the wind was blowing at the rate of about 21 miles an hOLlr. ALer coming out in the bay, the water was fonnd to be rough, and when Ileal' RoLLins Heef the boats became filled with water so that they had to be cast off, and shortly sunk. The Stnckpole had no covel' upon her hatches and had coal upon deek. The Servis was a western open boat. The canse of their sinkmg was taking in so much water through the open decks in the rough weather. In the case of Mason v. The IVm. 1I1Ill'tauyh, 3 FED. HEP. 404, the libelant, who was tllO owner of the J. Stackpole, brought suit to reo cover for the loss of that boat and her cargo. The facts in regard to the are stated in the opinion of my 10arned predecessor, and need not be here repeated. The present case is suhmitted upon the same testimony, with some additions in regard to the A. Servis. In the former case it wa<> held that the Stackpole, Ly reason of her open hatcllcs and coal on deck, was unfit and unseu,worthy for the trip across the bay in the stat.e of the wind and tide then existing; that this ullfittleHS an(} unseawurthiness were perfectly obvious and ple.;umably known both to the owner of the boat and to the pilot of the tng; and that it was negligence in each to underbke the trip in the weather then existing; and a decree was ordered in favor of the libelant for one-half the damages. As to the fads the same conclusions must be drawn in tile present case as in the former; and the principle of the decision then made, that both the tug and tow, under such circumstances, are in fault, has si:1Ce been repeatedly followed in this court and affirmed in the circuit. TIl(' Wm. Cox, 3 FED. REP. u45; S. C. affirmed, U FED. REP. 672; Connolly v. Ross, 11 FED. REP. 34:2; The Bordentown, 16 FED. REP. 270. The oLvious unfitness and unseaworthiness of the A. Servis were even greater than in the case of the Stackpole. l'he Servis was wholly open from bow to stern; she bad neither railings nor coamings, and was loaded within 15 to 18 inches of the water. She was also an old boat, and when she sank, broke apart, and, freed from the coal, came up in pieces. As respects both boats, therefore, tile tug mnst held responsible for negligence in undertaking tlle trip under the clrcumstances of that day. As the owners of the boat sunk could recover but half their damages, it is urged that tile libelant, who was the owner of the coal on both boats, can recover no more on the around that he is charaeable with similar negligence in shipping his on board of such°boats for such a voyage. It must be admitted, I think, that a shipper is legally chargeable with knowledge of the obvious general character
THE WM. MURTAGH.
2G1
and description of the vessel on which his goods are shipped. H he does not personally attenu to the loading of his goods on board, he intrusts that service to some one who mUl:lt be held legally to represent him in shipping them; and the obvious kind, quality, or condition of the vessel on which his goods are shipped, whether steamer or sailing vessbl, whether open decked or closed, whether a ship or a scow, must be deemed to have been observed and known by the agent who represents the owner of the goods, and therefore legally brought home to the knowledge of the latter. In this respect transportation by water differs from carriage by land, where the bailee alone is personally intruRted with the goods. From time immemorial the ordinary shipment of goods by water has been upon some specific vessel, whose receipt or bill of lading binds the particular vessel and the goods by mutual obligations. 'rhe oldest records of maritime law impose upon the merchant, at his own peril, the duty of inqlflry concerning the age and seaworthiness of the vessel on wllich he ships his goods. Article 11 of the Second Fragment of the Laws of the Rhodians provides as follows: "Let not merchants nor passengers put heavy and precious goods in an old ship; or if they do, and the ship ::;elting sail the goud::; be spoilt or damnified, they must blaim themselves. liut when merchants hire ships, let them diligently inquire of who have formerly sailel! in them, whether they be well providel! with all imltruments, tackle, good sail-yards, sails, canvas, anchors, ropes, convenient rul!ders, good boats. and ahle, skillful, and sulficient mariners, and whether the ship's sides be sound; and, in fine, to comprehend all in one word, let them inquire about the ship's SUfficiency in ever.ything, and accordingly venture their goods."
The almost universal practice, which has long prevailed, of having vessels designed for maritime commerce rated and certified in regard to their qua,lities and seaworthy character by associations, such as the Lloyds, the French Bureau Veritas, and others, whose business it is to examine, classify, and approve such vessels according to their various merits and seaworthy qualities, whose reports and certificates are constantly referred to and relied on by mercbants, is in accordance with the principle of this ancient rnle; and, in the class of vessels to which such rating applies, it accomplishes the object of the rule far more perfectly than any individual inquiry could do. H the A. Servis had been vi::;ibly and ObVIOusly wholly unfit for the voyage for which the goods were shipped, under even ordinary circumstances of wind and weather, or i.f her unseaworthiness were known to the shipper, and 103S had happened through such unfitness and known unsea,worthilless, the owner of the goods, upon the principle of the former decisions of this court, above referred to, must been held chargeable with concurrent negligence, and therefore could have recovered but half his loss. But it was not held in the previous decision that the employment of barges without hatch covers, or even the employment of open boats,
REPORTEr..
c
rrlE W:J. lIlUHTAGH.
263
loss -arose solely from the being an opentaking in water over her sides; not from foundering, or from her planks starting, or her seams opening. As her weakness in no way contributed to the loss, it does not affect the case. As the tug is chargeable with negligence, and as the libelant is not chargeable with any negligence which contributed to the loss, he is entitled to his full damages against the claimant for the coal lost from the Servis. 1'he Atlas, !l3 U. S. 302. In regard to the coal on board the Stackpole an additional defense is presented by the fact that in the former suit by Mason, who was her captain and owner, upon which the Murtagh was arrested and libeled in 1'em, the libelant sued to recover for the value of the cargo as well as for the value of the boat. After an interlocutory decree for the libelant for half his damages, an order of reference was taken to ascertain the amount. The agent, the ptesent libelant, was a witness in that proceeding, and in the course of it, he, in behalf of the present libelant, withdrew all claim for the loss of the cargo in that suit. The proctor of the claimant protested at the time that if that was done no subsequent action for the cargo could be maintained. The withdrawal was, however, persisted in before the referee, und the report and decree in that case were entered for half the value of the boat only. The decree was entered in August, 1880, for $764.07. which was paid on September 13, 1880. The present libel was filed October 23, 1880, and the claimants, in their answer in this suit, have pleaded the former suit, decree, and payment in bar. In the case of The NaIlOr, 9 FED. REP. 213, it was held by my pred. ecessor, under circumstances in all respects similar to the present, that the vessel was not liable to be arrested a second time for the same cause of action after giving bail in the first suit. "The proper and usual course," says CHOATE, J., "if the owner of the cargo desires to be· made personally a party to the suit, instead of intrusting its management to his agents, the master and owners of the tessel, is to petition to be made co-libelants with them." In that case, as well as in the case of Leonard v. Whitnoill, 10 Ben. 638, 658, it was held that the owners of the vessel, as bailees of the cargo, have a rIght to sue on behalf ·of the owners for its value. As the former suit, there-fore,- was rightly commenced for the reco,eryof the value of the cargo as well as of the boat, the 'Murtagh was not liable to a second suit in rem for the same cause, at the instance of the owners of the cargo who were already legally represented in the former action, if there was no other circumstance affecting this right. It was proved, howe\'er, in this case, that the present libelant had no knowledge that the former suit embraced a claim for the cargo, until the proceedings under the order of reference; that the present claimant, the owner of tile )Im·tagh. and the agent of the libelant, in a con,ersation had at or about the time of the commencement of that suit, agreed together that they would abide by the decision ill the
:364
FEDERAL REPORTER.,
case of the Stackpole; that the libelant would not bring suit; and that, after the decision in the case of the Stackpole, the claimant would settle accordingly without suit. Tbe claimant was a witness in tbe present case and did not deny this agreemenG. The decision in that case re,-!uired the claimant to pay half the damages. Subseoi. the quent to that determination the libelant informed the result and demanded payment, and, receiving no reply, this suit was subsequently brought. The agreement was a valid one and upon good consideration; and the withdrawal of the claim in the former suit, ,,-hen knowledge of it became known to the libelant, was an aet conforming to the spirit of the agreement, and the respOYldellt, therefore, cannot complain of the subsequent suit to the ex.tent necessary to enforce the agreement previously made. '£he agreement, however, was only to abide by the decision of the former suit, and that decision imposed on the Murtagh only half the damages. To this extent, tberefore, I think the present libel in 1'cm should, under these circumstances, he sustained, notwithstal1Lling the former suit emhracing tbe same cause. There is an additional equitable consideration why reco'lery in the case of tbe Stackpole should be limited to one-half the value of the cargo, viz.: that if the claim for the cargo had not been withdrawn in the former suiG, the amount payable to tIle owner of the barge might have been applied in that suit, so far as it was necessary, to pay his share of the present libelant's full loss. The amount recovered by the owner of the barge was more than enough to pay his onehalf of the loss of the cargo. By the withdrawal of the claim for loss of the cargo in that suit, suc1 application of the money could no longer be made, and the claimant, when he afterwards paid the owner of the barge the amount of tile decree, had a ri;,;ht to rely on his legal immunity from further suit to that extent, under the agreement, as a consequence of the withJrawal previously made by the libelant. As respects\the cargo of the Servis, which was not embraced in the former suit, there is nothing in the agreement, or in the former suit, which prevents the libelant's recovery of his full damages. Decree for the libelant for the full value of the coal on the Servis, and for one-half of tllat on the Stackpole, with costs. If the parties do not agree, a reference may be taken to ascertain the amount.
THE LORD DEnny.
THE LORDDEnny.l
(Circuit Court, E. D. Louisiana. June, 1883.) 1. ASSAUT,T AND BATTERy-SrXTEENTII AmnUALTY TIm,E.
An assanlt and hattery is where one intentionally inflicts unlawful violence upon another. There may be such gross negligence that an intent to injure may he mferred t1lerefro:n, but where the ca'e made hy the libel does not show sn"h negl;gence, nor bring any such negligence home to any particular indivirlnal, it IS very far from a casc of "assaultlllg and beating" within the sixtcenth admiralty rule.
LIAltII,ITY OF VESSET. FOR DOG
DOARn.
NEGIoTGE:-iCE.
:II1EASURE OF DAMAGES.
The bite of a dog, particularly in a warm climate, is a very serious matter, outside of the actual pain and suffering experienced. The rlnn!{ers of lock-jaw and the fear of hydrophobia are at!ll.'ll to ttle mental und nervous sufferings, lind to many people tile shvck to the system .:, sud. that no money compensation is aJcquato. SA:'>IE-ArPEAL.
5.
When no additional fcstimony is taken thc c;rpnit conrt will not lInstily rli.turb a dpcI\,e on hc point of dam 'ges, nor ul1!Lss iJ; shows manifest injustice. UU3hman v. R!Jan. 1 Story, 91, followed.
Aomiralty Appeal. The libelant, a pilot, was taken on board the steam-ship at the mouth of the Mississippi river, and while on the voyage up the river to New Orleans he was very seriously bitten by a dog, which had been brought from Europe for sale in this country, and which was kept in the cabin, chained under the table. This snit was brought against the vessel in rem for damages suffered therel.Jy by the libelant. E. Howard 11IcGaleb, for libelant. J. Ga'froU Payne and 11 cnry Den for claimants. P.\RDEE, J. The qnestions presented in this case are: First. Is the proceeding properly brought against the ship? Second. Was there negligence on the part of those in charge of the ship in caring for the dog, resulting in the injuries to libelant? Third. What damages, if any, shall libelant rccover? 1. It is contcoded that the case, as presented in the libel, shows a case of assault and battery, which, under the sixteenth admiralty rule, "shall be in pcrsunam. only." The ingennity which suggested the point has not failed to Bupply tilt: court with an int;enioui3 argu1
Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
2(ju
FEDERAL REPORTER.
ment to support it. This definition is given of assault and battery, as taken from 3 East, (Leame v. Bray,), 593: ., Whenever one willfully or negligently puts in motion a force, the direct result of which is an injury, it constitutes an assault and battery, and the action brought should be trespass vi et annis." An examination of the case shows that the brief goes further than the authority cited. The question before the court was whether the action was properly brought in trespass, and all the judges agreed that where an injury results directly from force, trespass lies, hut nothing is said of assault and battery. The other cases cited (Gibbons v. Pepper, 1 Ld. Raym. 39; Blackman v. Simmons, 3 Car. & P. 138) are also cases of trespass. An assault and battery is where one intentionally inflicts unlawful violence upon another, and if there is a case in the books which goes further than this, it is an unsafe case to follow. That there may be such gross negligence that an intent to injure may be inferred therefrom, may be conceded, and perhaps Blackman v. Simmons, supra; shows such gross negligence; but the case made by the libel does not show such negligence, nor does it bring such negligence home to any particular individual, as would be necessary in a case of assault and battery. In my opinion the case made in the libel is very far from a case of "assaulting and beating," within the sixteenth admiralty rule. ,And the case, as disclosed by the evidence, sooms to me to be a clear case of liability on the part of the ship. The dog inflicting the injuries on libelant was brought over on the ship, with the consent of master and owners, to be disposed of in this port. It was part of the cargo. The libelant was lawfully on board as pilot, and enti,tled to be carried safely. An injury to him from carelessness, or negligence in handling or caring for the dog, would entitle him to remuneration from the ship the same as if his injuries had resulted from goods falling on him, or from defective spars or rigging. 2. The evidence shows that the dog was a large, powerful animal, 'suspected of a disposition to bite strangers generally, and known to be of a good watch-dog breed,likely, when chained, to hite./any stranger coming within his tether, and attempting to interfere with things under his guard. This is the character that claimant's witnesses give the dog. 'l'he libelant's evidence, and several conceded circum: stances, go to show that the dog was ferocious, and that the master well knew his dangerous character and disposition. But it is not to go further than the conceded character of the dog. Takmg that as stated, it was negligence to chain him up under the cabin table, where he was concealed, because the cabin was the place where the 'libelant had beel1 assigned' to sleep, had slept, where his 'baggage was placed, and where .he" -had a right to go and did go Wl' it. Very abl!'l arguments and briefs have been submitted .as to the respollsiblityarising for inj uries inflicted'oy domestic ariimals like dogs;
THE LORD DERBY.
267
whether they must ·beknown to bite, or wont to bite, before the owner is· responsible; and whether there is a difference between the' com- : mon law and civil law on the subject. But I do not find it neces-· sary to go into the law, being satisfied that enough was known of this particular dog's inclinations and disposition to satisfy the most liberal rule claimed, unless it should be claimed that a dog must actually have bitten somebody before he can have a character, and the' owner can be held responsible. 3. The evidence in this case shows that the libelant. was seriously bitten in the calf of the leg, with several slight wounds, but one deep one, which really caused pain, sickness, and danger. He went under treatment, and got along well for about four days, when he felt able to and did return to his usual business, making one trip aL pilot to the mouth of the river. On his return from this trip his leg swelled, his pains increased, paroxysms followed, and for a time he was· threatened with lock-jaw. This relapse kept him confined for several weeks, and at the taking of his evidence he had not fully recovered. The evidence of the doctors show that his early attetnpt .to ,resume work resulted in protracting his continement and increasing his sufincluding loss of time ferings. The district court assessed nursing, medicines, doctors' fees, and suffering, at $2,500. This allowance is vigorously combated here as excessive; as judicial liberality, etc. . The point is urged that It was gross neglige!1ce on the part of libelant to return to work so soon, and before his wounds had entirely healed, and that this negligence aggravated his injuries and. increased the extent of damages, and that for this aggravation and increase he cannot recover. The attempt to return to work too early, made by the libelant was certainly unwise and injiirious, but I am not prepared to call it gross negligence. The doctor did not recommend it; neither did he forbid it, as he says himself: "I consented to bis going, which certainly was a mistake." As it appears to me, it was an unwise step, taken with the commendable desire on the part of a workingman to resume the labor on which he had to rely to support his family. The doctor did not know until after the event that it was unwise; neither did the lihelant. So, on this point, I agree with claimants asto the law, but I reject the conclusion of neg35. The bite of a d.og, ligence as claimed. See Sherman, Neg. particularly in this climate, is a very serious matter outside of the actual pain and suffering experienced. The dangers of lock-jaw a!ld the fear of hydrophobia are added to the mental and nervous .sufferings attendent upon such injuries; and, as the evidence shows, they were experienced by the libelant in this case. To many people the shock to the system resulting from ;the most insignificant 'bite of 3.' dog drawing blood is such that no money compensation is' adequate. The ghost of hydrophobia is raised, not to down during the life:time of the "'Victim. . : .· l.,:. "" ' ; .,:
268
FEDERAL REPORTER·
. On the whole case, while I am not prepared to say that I would have made the same allowance as the district judge has, had the case come before me originally, I now see no good reason to vary the amonnt. When no additional testimony is taken the circuit court will not hastily disturb a decree on the point of damages, nor unless it shows manifest injustice. See Cushman v. Ryan, 1 Story, 91; The Narragansett, 1 Blatchf. 211; Taylor v. Ha1'wood, Taney, 487. In Cushman v. Ryan, supra, Justice STORY says: "In cases of ihis nature, where the damagf's are necessarily u:1ccrbtin, and are incapable of being ascertained by any precise rule, and therefore unavoidahly rest in a great measure in the exercise of a sound discretion hy the court, upon all the circumstances in eviLience at the hearing. it is with extreme reluctance that the appellate cOllrt entertain" any appeal, and it expects the appellant to show, beyond ,my reasonable donbt, that there has been some clear mistake or error of' the court below, either in promulgating an incorrect rille 'Of law or in awarding excessive damages, or that new evidence is oirereLl which materially changes the original aspect of the case."
A decree will be entered for the libelant in the same terms as the court oelu IV.
III
TEILlIIAN v.
PLOCK
and others. June 20,1883 I
Court, S. D. Kew York. 1. DUTY OF SIITP TO FI:>D TIERTII.
In the of am' a!!;reempnt or contrary ljOag:fl, it is the duty of a general slJip to find a berth where she can discharge on the wharf. On a hill of la ling providing that iron rails shoulrl he dischar!!ed "at the same place as the other eargo -only one plllce," the rluty of the ship to go to a LJerth wh 1'1' the rhils could he discharged on tlw wharf. OF LADll\G.
h"",
b.uIE-DETENTION-DEMUnnAGJ:.
'Vl:ere the hark A., while rlischarging petroleum ['arrels he fore reaching hpr herth, not;("c of readine's to rlL,charge the iron rail_, and was at a dock where thc privilege of landing the rails re!userl, even for purpose of w"ighing hem itl tile conrse of c. and negutllltlons III res.pect to the ,rschar!!;e from the upon I ghters were not complc:ed t!lrouc'h thJ mate's not giving unqnalified perm'ssi"n to weigh tbe iron on s',.p's deck, IV'd, that the ([d,'n,lant was not le!!alIy in cJefau:t, and was not lial,le lor c1emnrrage for the "cssel"s de.ay at tho duck where she was not alluwed to land the ra.ls.
In Admirfllty. Beebe, lVilcn:c J: Hobbs, for lihelants. Edward S. Ilulibe, for respondents. BROWN, J. Demurrage to the amonnt of $129.60 is claimed in this casE' for three-days' detention of the NorwegIan bark Anna in the delivery of 181 iron rails in 8eptember, 1880, consigned to the respondents. The cargo, which was conl:lignerl to several different consignees, consisted of pig-iron stowed at tl1e uJttom; -next, the iron