Cummins v. Spruance

4 Del. 315

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

The Chief Justice

charged.—This is an action on the case, to recover a compensation in damages for an injury to the plaintiff’s schooner, caused whilst lying in Duck Creek, in this county, by the defendants’ sloop running foul of her.

The principal question is, to whose fault, negligence, or improper conduct, is the injury to be attributed 1

The defendants’ counsel contends, that if the plaintiff was.in fault in any respect; that is, if his act, misconduct, or negligence, or that of the master of his schooner tended even indirectly or remotely, to produce the injury, the plaintiff is not entitled to recover; although the direct and immediate cause of the injury, was the negligence or want of proper skill or arrangement, on the part of the master of the-defendants’ vessel: That the plaintiff was so in fault; 1st. Because his schooner was unfit for the navigation of the creek, by reason of her drought of water; 2d. Because being so unfit, she was improperly loaded down; which in itself was unlawful; 3d. Because taking a vessel of her drought of water into that creek, was obstructing a-public highway, and therefore a nuisance.

The Court

do not assent to the doctrine of the defendants’ counsel. As a general principle, it is admitted, that no person has a right to obstruct, to the prejudice of others, a navigable stream, by any kind of vessel. But it appears by the testimony of some of the witnesses in this cause, that one or more vessels of the same drought of water with the plaintiff’s schooner, and one of a greater drought, were in the habit of navigating Duck Creek; and of others, that she did not draw six inches more water than some, nor eighteen inches more ^han the rest; that she was of less beam than the vessel of the aefendants; that when fully loaded with grain, she draws seven feet; that after she had commenced loading, she dropped down to Caulk’s Point, took in grain from a shallop; and grounded at an unusually low tide, where the usual depth of water at an ordinary tide is from seven and a half to eight and a half feet; that the injury occurred whilst she was thus aground; that she lay straight up and down the creek, at a distance from the New Castle shore, sufficient for three or four vessels to lie abreast, and at a distance from the Kent shore, sufficient for two vessels to lie abreast; that when the injury occurred, the tide was about two-thirds flood, and the wind fair for the defendants’ vessel to have passed on the New Castle side; and that two vessels had passed without difficulty, at the first of the flood.

If these facts are sufficiently proved to the satisfaction of the jury, neither taking the plaintiff’s schooner into the creek, nor loading her in the manner she was loaded, nor her occupying the place where she grounded, was an unlawful obstruction of the channel. Duck ^reek is a common highway for all vessels whose drought of water permits them to navigate it. No law prohibits a vessel of the description of the plaintiff’s, from proceeding up and down the creek for the purposes of trade; nor does her grounding at a low tide, and remaining until a high tide might enable her to get off, constitute a public nuisance. If it did, it follows as a legal consequence, that the owner or master would be liable to an indictment; and that any persons might lawfully abate the nuisance by removing the obstruction. This might not at all times be effected without injury or destruction to the cargo or vessel. If the doctrine urged by the defendants’ counsel were correct, it would seriously affect not only the trading interests connected with the navigation of our creeks, but also the commercial interests connected with the navigation of large rivers. Ships of the largest class and tonnage, when deeply laden, have often grounded in ascending or descending the river Delaware; and in some degree, have thus obstructed its navigation. But who ever considered it an unlawful obstruction of the channel, or a public nuisance, when vessels, by the exercise of ordinary care and skill, could readily pass on either side of the ship that was thus aground?

Therefore, the taking the plaintiff’s schooner into Duck Creek, was no such fault or misconduct on the part of the plaintiff or the master, as excuses the defendants, if their vessel, by the negligence, want of competent skill or proper management on the part of her master, ran foul of the plaintiff’s schooner. In cases of injuries of this kind, the fault of the plaintiff, in order to prevent his recovery, and to excuse the defendant, must be such as directly tended or contributed to produce the injury. If plaintiff’s negligence, want of due care and skill, or his misconduct, is the immediate cause of the disaster, he must bear his own loss. But although there may be negligence on his part, yet unless he might, by the exercise of ordinary skill and care, have avoided the consequences of the defendants’ negligence or misconduct, he is entitled to recover. If the disaster is caused by negligence, want of due diligence or of skill on both sides, both parties being equally to blame, neither can maintain an action in a court of law. If it arises from physical causes, beyond the control of the party inflicting the injury, and without fault in any one, the party injured must bear his own loss.

The gist of this action is the negligence, misconduct, or want of ordinary nautical skill or proper management on the part of the master of the defendants’ vessel. This is a question of fact for the jury to determine, and the burden of proof lies on the plaintiff. Although the situation of the plaintiff’s schooner might have exposed her to injury, yet if she was lying in such a position, that a person of ordinary nautical skill, using due care and diligence, could have avoided her, the master of the defendants’ vessel is without excuse for running against her; and the defendants are responsible. If the injury was the result of accident happening from the winds, the w'aves, the state of the tide, or from other circumstance, which proper precaution, foresight, and competent skill could not guard against, the defendants are not liable.

If the jury find a verdict for the plaintiff, they ought to award him a fair compensation in damages, for the injury done to his schooner. In estimating them, the true measure is, the actual damage sustained by the plaintiff at the time and place of the injury. The expense of the repairs necessary and suitable to restore the schooner to her former condition, would be the proper amount of damages. But if she was deteriorated in value, by leaks caused immediately by the injury, and which could not be remedied by the repairs, the plaintiff is entitled to a compensation for the impaired value of his vessel, as well as for the expense of such repairs as were actually necessary. But he is not entitled to recover any thing for the loss of the probable profits of two trips to New York, which with favorable weather, it is alleged, his vessel might have made during the winter.

Bates and Smithers, for plaintiff. Frame, for defendants.

Verdict for plaintiff, $139 79.