FEDERA\l;:l:tItF<)RTElt;,
vol. 48.
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lohnOOi}' 1!5 tha-t the' is ;ftjrfir1dehlilOd leouM'Dot 'ba.'tlhtei'tainedin iLdIiliraltv;:OOcituseit 'is 'ao: illction Jfof; for' *e,;bteach. of a eontn1ct .the!court' '",as without' JUrisaiction oltha' cit.need! action 'tltated1inthe crot'ls4'ibel, the' motion'!!hould'not be though actions for damages and for misrepresentations and breaches of contracts for supplies maynot be frequent, I cannot regard them as beyond the proper jurisdiction of the admiralty. In the case of The Eli Whitney, 1 BIatchf. 360, though it was held that an action in rem would not lie for false representations which had been the inducement to the execution of a charter-party, there is no in perBOnam would not lie for such a cause. in this case, being for is a maritime contract,withitiUtebroinary jUrisdiction of the admiralty courts. Upon such a contract, and all its incidents, the righq, and remedies of the parties are 'The contrlktbeing maiitifbe, the admiralty, says CuRTIS,J., in Ohurch v. 2Curt. 271, 274, ," will proceed to inquire into lab and 'a:1rthe damages suft'ere'(f thereby, however .wpll.tever issues . also.,C'oZ,v.MurraYI'Abb.Adm.342j'I'he J. KW'arMr'j22 Fed.1iep. Mdrre,ll', . 57,0; .PM, Baracda.44'Fe<l,Rep. 102. 'Tn 'the latter case 'the action was for damages for breach of.the , altd, respects the form of, remedy iolhia'Qase is ,,,,n .on11." ..hbel·ls therefore' properly " falls within the rule; and the motion for stay of proceedings on the origgiven,is granted.' ".' ,'
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THE TOM: LYSLE.
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:WMti Bpayment is :madl:lupon acco\hit. withouhn application
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mereif 'files anans'Wer, llrmllltive'judgment ean ·be for damages "aused by the pilot's negligPl'lce; and. afe .rllnc,ered uI\der ,seV;eral distinqtqol\traqts, the r,igl;lt to set up such as is con 1iried. to the earned. under .the .,pl1orticular <lllntraoftduring the perlonnance of which' " ' 8., AND' SKiLL. ' :L ' '!'" -,. A pIlot. Is bQun4.to be familiar with tbe ,tile river, !loud with . ()l)structions to' ana :tohaVll the degree of skill ordinarily posfor damages' occasioned by the want :.... sessed'by>'Ot.hers of bise1ll.s!l,' and he Is "ofsn,ch, kQowledge,'ni!.skill. or by n<lglil!fenoe ill lloPplyiD$t.bel;l:l, bqt lWt " 'ages'occallforrei1' 15i'a'n erro'r'of jUdgment'on his part. " , " " , .' .. '
THE TOM LYSLE.
691
4.
When a river pilot in oharge of a tow adopts the proper course to avoid an im· miI/entdangerhhe is not liable for damages caused by a failure of the boat to , promptly obey ,er paddle.wlieel, owing to an improper stowage of her fuel.. A river pilot who gets far out of the channel, when one shore lighted by electrio lights is in, full view, .is liable for damages resulting to his tow, even though the , other shore is obscured by from the siphon pump. . SAME-GETTING OUT OF CHANNEL. '
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In Admiralty. Libel bya river pilot for wages. (}6fYrge(J. WilBon and David S. McUann, for libelant. for 'claimants.
P.
The libelant's claim is for 8185, being a balance alleged to for services as. pilot. He claims $25 for five days' service at be Logste?\V!1 in June, 1891, $10 for a trip to Industry in July, 1891, to Louisville in July, 1891, and 890 for a second trip to $100 1891, making a total of8225, and allows LouisylUe in July and 'of 840! . The answer admits the correctness of the various a the item of 825 for services at Logstown, but claims a '<(li'edit of $10. In' my judgment, the testimony warrants the, that the libelant's claim for the services at Logstown should be al19wel1. As to the credit, it appears that the firm of John A. Wood & who are the ownerS of the boat, paid libelant $50 on general They owed him 810 lor services, other than those in suit, and he' applied that much of ,the payment, as he had a legal to do, to the payment of the other claim, giving them credit lor $40 up-; on, the '(jlllim in question. This credit,' in the a\jseDce of application by the debtors or creditor, the law would apply to the oldest that it pays the Logstown claim and the, Industry clailll in Jull, and reduces the claim lor trip to Louisville in July to leaving that much of that claim and all of the claim for thE) second trip to ,J"ouisville unpaid. The responuents,howe\'er, in their answer, which the.r term an "answer. and cross,4ibel," further defend upon the grou,nd: that, upon the second trip. to' Louisville, the tow, while. in. his eQarge 8$',pilot, was twice injured, first at Deadman's island, where a barge cont,aining coal was grounfied and damaged, the respondents, as its· owners, suffering a .loss of$BOO, and again near Pomeroy, Ohio, boat containing coal was lost with, its contents, the respondeJ;ltsililtlel'ing a, loss thereby of $2,232.50 i and these injuries,they cllitrri,\occurred through' the negligence 'and carelessness of the libelant, and they seek to set flff these damages against libelant's claim. Asthe stilnd&', this claim cannot be the subject of a set-off, so that the: respondents could have a decree against the libelant for the balance, (Ward v. 21H.o,w·. 57,2jThe Dote,. IH U. 8.881 j) but. set up such. acts of nEJgligence by:wayof defense to the libelant's claim, ,for service, the Ilmploye, lind R,n amount bfcare and SkIll proportlOnetl'to ofthe work whicQ he to perform, breach of contract, 'and
692'
FEDERAt RltPORTER,
tlle loss $ustained by the emplQyer may be shown by way of defense, as going directly to the consideration. GlennO'Yl v.' Manufacturing Co., 140 Pa. St. 594,21 Atl. Rep. 429. The general rule i,sthusstated in 2 Pars. Shipp. & Adm. 433: "Admiralty has no jurisdiction of an independent set-off,and th?se usually allowed are whereadvan'ces have been made upon the credit 'of the particular debt or demand for which the plaintiff sues, 01' which operate by way of diminished compensation for maritime services on account of imperfect performance, misconduct, or negligence. or as ,a restitution in va.lue damages sustained in consequence of gross violations of the contraq,t., ,!A loss arising from tbe gross negll!ct of a mariner may be set off in answer to a demand for waies," , . But this set-oft' this caSe would be only to the of'tb,e wages
«}la,imed.T.he North Star,
U. S. ,17,.1 Sup. Ct. Sbert v. The Reuben Doud, 3 Fed. Rep. 520; Nj£liiJi8,v'. 'fjemlett,
361; Snow 324., And a separate contract, the ,alleged set to any}>ther the wages clainleP,t,of trip , tl?1 Louisvple. The Pioneer" 1 Deady, 58. So that tb,elibelantill, at aU events, entitled toa decree fOJ::$95, thel?alance due, as for servioes, prior, to that trip.lfhe queet1?n, then, the respondents have esta.blished theirdefellse of negligence on the part of the libelant. ' . " " , , 'T4,l:l: d"ties of pilots,are tbl,is stated in Atlee' Co., 2,1 Wall. 889:;. " " 'I
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"T.he character of the skill1md reqnired of,a in charge of, a v!'ss,el ori the rivers of the country is vervdifferent from that which enables a naVigator io carry bis, vessel. safely tile ocean.' I(: *','''' 'fhe pilot' of a rivet harbor pilot, is selected for his personalkno'wledge of the througliwhich he st,eers his vessel. In the' long course of a thousand' miles in one of these rivers, be tntistbe familiar with the appearance of tbeshore ou each ,side ofUle river as he goes along.I;t's banl\!'!, towns; its houses and traIlS, and itl',openings lj.re all land_marks b.y which be steers his vessel.Tll11 com pass is of little use to him. lIe must know where the navigable chann!!l is, in its relatIon 'to all these external objects, especially in tIle night. He must alsoUe familiar with all dangers' that are ,permanently located in the course of the river,' as sand·bars, snags, sunken rocks or trees, or abltndoned vessels or b&.Tges. All this he must know, and remember and avoid. TO'do this he, ttl ullt:, be constantly inforttled of changes in the cl!rrent of the riyel', of said bars newly made, of IQgs or snags or othllr Qbjects newly presented, against whichhisvesselmigbt be injured." , ",'", In v. WilliamsO'Yl, 1 Phila. 198,bis responsibilities are thus stated: · "He should be a person of great and accurate knowledge of tbedifficulties 'the particular navigation inwbich he is.empIQytld; well acand qlJainted with the rules which arise out of the rights Qthrrs pav\gating the !lam!! always to regard t\lOse rigllts; copland colJected ,tn !ianger09S, nQt given to and in oroer to courage; and always carefUl of the vessel committed to his guidance. * Tbelegal liability of a pilot cOl'l'espQnds with the i .'
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693
high responsibility of his position. He is under oblfgation to his employers, as well as to third persons, to have and exercise proper care and skill in the navigation of the vessel. He is liable to his employers, and in collision cases to third persons, for any injury arising from his carelessness and unskillfulness. 'I< ... ... Pilots are bound to exercise ordinary skill and care, according to the rules of navigation. But the care required, in the plain and ordinary conrse of naYigation, is not the same as required in difficult circumstances. Circumstances of extraordinary danger require extraordinary care; and the fact that the pilot had to pass coal-boats in a somewhat nanow chanupon him a degree of. care different from W llat would have been nel i required if he had had the channel to himself. Still this is but ordinary care, . under the circumstances. Now, if the pilot exercised ordinary care and skill for the pUipose of avoiding the collision, and yet failed in the attempt, he is not HabIe to his employers, though they have paid for the damage done by the . collision.-,ltis settled that, if the occupation be one requiring skill, the failure to exert that .needful skill, either because it is not possessed or from inattention, gross The New World v. King, 16How. 469. The general rule is stated in Cooley Torts, 647, as follows: "Every"man who offers his serYices to another. and is 'employed, assumes to exercise in tire employment such skill ashe possesseivwith a reasonable degree of diligence. In all those employmentfl where peculiar skill is requisite, if one offers his servipes, he is understood as holding himself out to the public as tpede.gree of skill commollly possessed by others in the same employment, and, if his. pretentionsare unfounded, he commits a species of frauduponevery l))aD who employs him in reliance on'hispublic But no mlm, whether skilled or un'skilled, undertakes' that the task he assumes shall be performed successfully and Without fault or error. He undertakes for good faith and.integrity",but not· for infalljpity, and, he is liable or dishonesty,but; not for losses to his ,employer for negligence. bad, mere error of ..,' The distinction, between an error of judgment aud negligElnce is not. -easily determined.· It would seem, however, that if one, assuming a responsibility as an expert, possesses a knowledge of the facts and circumstances connected with the duty he is about to perform, and, bringing to bear all his 'professed experience and skill, weighs those facts and circumstances, and decides upon a course of action which he faithfully .attempts to carry out, then want of success, if due to such course of action, wciuld be due to error of judgment,and not to negligence. But if he omits to inform himself as to the facts and circumstances, or does not possess;theknowledge,experience, or skill which he professes; then a failure;' if caused thereby, would be negligence. "No, one can be with carelessness, when he does that which his judgmentapproves, ofiwhere he omits to ,do that of which he has no time to. judge. .Such act or omission, if faulty may be called a mistake, but not,carelessness." Brown v. French, 104 Pa. St. 604; WiUimns v. Le Bar, 141 Pa. St. 149, 21 Atl. Rep. 525. When a pjlot in piloting a vessel has used his best skill and judgment. he is not liable for her loss, although the result shows that his best judgment was wrong. Mason v. Ervine, 27 Fed. Rep. 459. The testimony shows that the passage at Deadman island is a difficult .one, being through a narrow, winding channel, with a bar on the shore
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694
FEDERAL'RmPORTER,
side·. Asteam-hoat towing a fleet'of barges or boats should, according j1,ldgment of the pilotsexthllined, go through this channel by is, by holding the boat back, with, the fleet ina quartering' to the current, and allowing the current to sweep the head of tlw :tleet around the curving. channel, the wheel of the boat acting as a sort of ph'ot. The testimon·y of Mr. McMichaels, the other pHoton the boat, shows that the libelant followed this course, but: the boat not being backedaoon enough, the front barges were carried upon the bar"whicb Was ,oidbe outside of the curve. In other words, the boat wW!! tilonear the bar hefore her fleet commenced to swing around .. Mr. :M:cM,:ic1:lnels says be calledtbelibelant's attention to this,who said he backing the boat all he could. It would seem that the boatdid not anaweras quicklyaa usual, because her stern was too low in the water, and ·this is attributed to the fact that her load of fuel was smaller thanllsual; which threw her bow out of the water. The libelant knew this fact. If the boat hadbeeri: stopped and backed too soon,the fleet would nokbavepassed The libelant seems to have possessed-the knowledge of. the river and channel required in Atlee v. Packet 00" 8Up1'a. He seems to have,exercised his judgment, and to have tried faithfully to carry out the upon which he had determined as the rl;l,llult of his judgment. .t\t :Q1ost he committed an error of judgmentforwhich he ought not to be.liable. Hut r think the libelant is responsible for the loss oithe Holding him to the responsibility:, skill, and care reqnired in Atlee v. Packet Co. and other cases I ha,y6 cited, the testimony shows a want-of care and skill on his part, for whi'Ch he shol11dbe helJ,11irlble. The boat, with its tow, was out of its channel, with which he was bound to be familiat, and was' almost oDshoi.e, before hediscoveredbis whereabouts. Granting, what is in the steam from thesiphonobscure<J,his view of the West Virginia shbre, the opposite or Ohio shore, lighted with electric lights, was in fI:illview"and he has shown no excuse for being out ofthe channel, with that shore to guide him. ·Even if the steam obscured his vision, and befuund he could not steeJ1 intelligently,he Elhould have stopped until the siphon was shut off. As: the boat sank in a few minutes atter the tow rubbed the shore, and the testirpony shows the end of the boat wascrusbed, it is fairly to be inferred that it received injuries at that time, which were the result· of wantai' care and skill on the 'part of the libelant.:Astheamountof the loss, on that occa:sion,' far exceeds the amount of w41gesClaimed for that trip, it follows that he cannot recover the sum of890 claimed for that trip; He is entitled to'8o decree for the remainder of his 'claim·
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DOUSE t'. SABGEN'!. i'
696
DOUSE 17.
SARG:ENT'
.al. 8O,l89L)
(ma,trlct 1. SmPPING Ii OWNER
CO,wrt, & D. ,New York.
A part owner; ha'l"ing ,agreed with 'Uhe othe, ownel:& tc> run the vessel on sharea, and pay her, disbU,rsements, is owner pro hac and personally liable to the master, whom he has emplOyed, for ,,11 his wages ana disbursements. , ,.' , "
PRo HAO VICE-WAGES.
8AMB'-LiMITED LUllILI'l'y....DISlltlRSDBNTS. ' '"
, ", The vessel being *e act of 1884 limiting llabUlty in favor of the other Part,,' ""ll,wners as to th,e, m,aliter,'SdiSb,,urs, · but,"not as, 'to the mll8te,',r's wages; ' th,e other owners are' entitled tram the owner pro HtiC'Vic& " ,
.. ADHIRALTY-PRACTICE'-AM:IUIDHENT. , , '
The owner pro hac vwe beiug sued with others as joint owner, aDamendmant of ,the libel was permitted to', reooveribedfsbUrsementailfor whicb he ,only wasllable; but. no properaocount'having,beeu submitted to him by the master, no,eosta up tll the'presenttime 'were alloweellDor further proceedings. until auaooount, With, proper vouchel'a\ bad,been'«lDmltted, and' 'oppol'tumty' affordedforl8ttle-
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",m, Ad;miralty. F,." H. M,' Sargen', e,.nd otheril to'recover wages '1\8 "',,' " , ," . ;; ; Wilcox, Ada1n8 &:- Green, for libelant. " ' Wing, Shoudy &:- Putnam and Mr. Buningham,'for'respondents. BnoWN, J. The defendant Gower is liable as an owner pro hac 'Vice for the1lib(:Jlant's wages andEishursements, aB respectstne dtpartment which to supply. Webbv.Peirce,10urt.l04. I t'M,Dk{the defense of lI.limited liability is good as respects the other OWfie1'8, ,the vessel h,aving been lost, and no freigbtrealized; but, this defens8 t iJ uDder the act of June 26, 1884, (23 St. at Large, p. .s3,e. 121, '§ 18,) does not, 8Jt:tend to the master's wages, forwbich the other defendants, as well 'aB Gower, are also personally liable. But asrespecttl this the ,defendant ,Gow:er would be bound to indemnify the other, dwners. The fact ,that Gower was not sued as owner pro hac 'Vice, but as a joint, owner with the other defendants, does not ''entitle Gowei' ,to a dismissal as '1'espectshim. 'An 8nlendment that might properly state the case against Gower would not present a wholly new cause of action; but wQuld:be,simply a different mode of .stating the respective liabilities of the deffilDdants for the same wages or disburseme.nts. It is, therefore, within rule 24 of the supreme court in admiralty, and the proper amendment should be allowed. But, as respects Gower, a resident of Maine,who claims that no, proper 8,0.count,had been submitted to him, and, who has never contested his liabilityfor any sum Justly due 'the libelant, theam,endment should be withouticosts of the suit to this time; 1l-ndno Order of reference to increasethlfexpenses ofthesuit should: beordered,iLthe libelant!s behalf untilapropei' account in detail, together with therefor"Mfar as practicable; has been .submittegar.easonable,timeto Gower's,qounsel, CIlrdeposited in the ,clerk's,offioefor inepeotion,aqd
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