Dorrington v. City of Detroit

223 F. 232, 138 C.C.A. 474, 1915 U.S. App. LEXIS 1704

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 6, 1915
• Docket: No. 2574
• Status: Published

Opinion

HOLLISTER, District Judge

(after stating the facts as above). That the ship had some value cannot be doubted. It is also true, since the decision of the Supreme Court in Workman v. New York City, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314, that in whatsoever capacity a municipality owns, controls, or uses a fire boat, the expense of which the city defrays, an action in admiralty will lie against the city for negligence in the operation of its fire boat.

The respondent’s claim of contributory negligence may be disposed of by the statement that the testimony shows activity on the part of the libelant to save his ship. When danger to her seemed probable, he obtained the services of the only tug in the harbor available for use.' Indeed, if the fire boat had not undertaken the rescue, it seems quite clear that the Eorixner would have succeeded in saving the drifting ship, and we agree with the court below that contributory negligence is not to be ascribed to the libelant.

[1] We come, then, to the charges of negligence. Whether or not it was the duty of the fire boat to have volunteered to save the ship is not now decided. She was instructed to do so, and it is probable her primary purpose was to save the bridge rather than the ship. Be that as it may, she attempted to save the ship and thereby established a relation between herself and the ship calling for the exercise of care commensurate with the extent of the duty such relationship imposed. It will be observed that the fire boat was not a salvor, for the reason that success did not attend her efforts. It is said in The Sabine, 101 U. S. 384, 25 L. Ed. 982, that:

“Three elements are necessary to a valid salvage claim: 1. A marine peril. 2. Service voluntarily rendered when not required as an existing duty or from a special contract. 3. Success in whole or in part, or that the service rendered contributed to such success.”

The city of Detroit is not making a claim for salvage, and clearly could not do. so. Thé fire boat failed to save the ship. She was at no time in control of her, for the reason that her hawser would not hold. If it had held the ship would not have struck. The rule applicable to a salvor is that she shall—

“use reasonable care for the protection of rescued property, and may lose all right to salvage award, or even render herself affirmatively liable for an independent injury sustained after a successful salvage service.”

It is so stated by Judge Lurton, speaking for this court in The S. C. Schenk, 158 Fed. 54, 59, 85 C. C. A. 384, citing The Mulhouse, 17 Fed. Cas. 962, No. 9,910; Serviss v. Ferguson, 84 Fed. 202, 28 C. C. A. 327; The Henry Steers, Jr. (D. C.) 110 Fed. 578, 582; The Bremen (D. C.) 111 Fed. 228; The Duke of Manchester, 2 Wm. Rob. 471; The Neptune, 1 Wm. Rob. 297. The same rule is applicable to cases in which an unsuccessful attempt is made to save a ship in distress. It will be found in The Henry Steers, Jr. (D. C.) 110 Fed. 578, 581, et seq., and in The S. C. Schenk, 158 Fed. 54, 60, 85 C. C. A. 384, 390. In the latter Judge Durton says:

“When a distinguishable injury has resulted from the negligence of' one undertaking a salvage service, there may be not only forfeiture of all right of salvage, but an affirmative award of damages against the salving vessel. This is as far as the reported cases seem to go.”

Speaking of those who claim salvage, Dr. Lushington said, in The Cape Packet, 3 Wm. Rob. 122, 125:

“I do not mean to say that they must be finished navigators; but they must possess and exercise such a degree of prudence and skill as persons in their condition ordinarily do possess, and may fairly be expected to display.”

In the case of The Dygden, 1 Eccl. and Mar. Cases, 115, that learned admiralty judge denied salvage to fishermen .who, without competent knowledge of seamanship and when competent assistance was at hand, undertook to save a ship in distress and failed. He said (pages 116, 117):

“When persons offer their services to vessels in distress, and there are no other individuals on the spot capable of rendering more efficient assistance, this court must .look with considerable indulgence at their efforts; because, being the only aid that can be procured, and offered in a state of great exigency, every allowance must be made if they are not possessed of adequate knowledge to perform the duty they' had undertaken. But different considerations will apply to the conduct of individuals who assume the character "of salvors, when there are persons competent to discharge those duties.”

[2] The test to be applied is good faith and reasonable judgment and skill. The Laura, 14 Wall. 336, 344, 20 L. Ed. 813.

Whether on the first trial the line slipped, or that to which it was attached, broke, cannot, from the testimony with any reasonable certainty, be said. All of the posts were 40 years old. We have only the owner’s word for it that they were sound. The captain of the fire boat and his assistant had had little experience in towing, and attached the hawser to, what seemed' to them, posts provided for the purpose. The time after they boarded the ship was sufficient to have made a secure fastening to a tow post proper, assuming that would have stood the strain. But quick action was required. That is certain from the facts and from the opinions of those qualified to judge. The sea was heavy, the wind was high, and it was getting dark. When the second attempt was made the ship was within 10 feet of the crib, and a secure fastening must be found within about one-half minute. The captain of the fire boat believed, and had reason to believe, he could pull the ship around, and while he probably ought not to have fastened to the quarter post, yet he did not know that, and it presented the appearance of being there for the purpose of use in towing. He did not know the Borimer was coming to assist until she was near by and about the time he was making the second attempt to fasten his hawser. There was at that time no reason to suppose he could not pull the ship away. One may imagine it was a time of much excitement. We are not able to say that the District Judge was wrong in exonerating the fire boat from the charge of negligence in tying to the quarter post, and should not, in any event, disturb his finding unless it were against the decided preponderance of the evidence. City of Cleveland v. Chisholm, 90 Fed. 431, 33 C. C. A. 157 (C. C. A. 6); The Edward Smith, 135 Fed. 32, 67 C. C. A. 506 (C. C. A. 6). We do not find such preponderance here. In some respects the case is like that oí The S. C. Schenk referred fix So far as the captain of the fire boat knew, the ship was lost unless he went to her rescue. What he did in attempting to fasten the hawser was probably what any one would have done except one of great experience in towing vessels. To hold him negligent in not seeking some post which would certainly hold, if any of them would have held, would be to discourage laudable attempts to save vessels in distress by the deterrent fear of a claim for damages if the attempt failed.

There certainly is no clear evidence of culpable negligence or willful misconduct. What Judge Burton says in the Schenk Case is particularly applicable (158 Fed. 60, 85 C. C. A. 390):

“But when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct.”

We reach a similar conclusion with respect to the claim of having negligently abandoned the ship after she struck. Well might the captain of the fire boat have thought the ship would sink, 40 years old as she was, though stauncher than he knew, with waves four feet high dashing on her and the crib, all in the darkness of night, with the broken spars, masts, and yards falling on deck, and with, apparently, to him, no place on the ship to which to tie sufficiently strong to stand the strain of towing.

[3, 4] The claim of negligence for the failure of the assistant engineer to open the bridge gives us more concern. It requires a consideration of the duties and responsibilities of a municipal corporation operating a drawbridge over navigable waters, and calls for the consideration of rules not involved in cases of salvage, or in unsuccessful attempts to rescue ships in distress. Whatever the law may be in some of the states exonerating municipalities from liability for negligence in the maintenance and management of drawbridges operated, not for the pecuniary benefit of the municipality, but in behalf of the public and in governmental capacity, or in cases in which it is declared there is no liability for the manner of construction or carelessness in the operation of a drawbridge unless’ the • liability is expressly imposed by statute, it may be regarded as settled that liability in the management o'f this drawbridge may be fixed upon the municipality if the facts show negligence in the discharge of their duties by those to whom the municipality had intrusted its management. This is so because the locality of the injury to the vessel was in navigable waters, which brings the case within the admiralty jurisdiction of the courts of the United States. In The Plymouth, 3 Wall. 20, 33 (18 L. Ed. 125) it is said by Mr. Justice Nelson:

“It is admitted by all the authorities that the jurisdiction of the admiralty over marine torts depends upon locality — the high seas, or other navigable waters' within admiralty cognizance; and, being so dependent upon locality,. the jurisdiction is limited to the sea or n’avigable waters not extending beyond high-water mark.”

And it is said by Mr. Justice Field in The Rock Island Bridge, 6 Wall. 213, 215 (18 L. Ed. 753):

“ * * * jurisdiction of the admiralty extends 'to all cases of tort committed* on the high seas, and in this country on navigable waters.”

And then he goes on to say that redress for such torts may be had in courts of admiralty in personam in other cases than those in which proceedings may be had in rem for the enforcement of a maritime lien.

And while it is shown by Judge Jenkins in Milwaukee v. The Curtis (D. C.) 37 Fed. 705, that no action would lie in admiralty against the owner of a vessel for damage done by it through its negligence to a bridge for the reason that the locality of the injury was on the land, the bridge being on land; yet he makes it very clear that the locality of the thing to be considered is of the thing injured, and not of the agent causing the injury, and that when the injury is to a vessel afloat, even though the negligence originated on land, the tort is maritime and is within the jurisdiction of the admiralty. See cases cited by him, and by Judge Addison Brown in Leonard v. Decker (D. C.) 22 Fed. 741.

In Daly v. New Haven, 69 Conn. 644, 38 Atl. 397, the Supreme Court of Connecticut, in holding that the duty of operating a drawbridge which was a part of a public highway over a navigable river is a public governmental duty and no liability attached to a municipal corporation charged with that duty for negligence in the operation of the draw, unless the liability was imposed by statute, referred to the case of Greenwood v. West Port, decided in the United States District Court for the District of Connecticut, and reported in 62 Conn. 575, 53 Fed. 824, and 63 Conn. 587, 60 Fed. 560, as not in conflict with the court’s view of the public governmental character of the municipality’s duty in the management of the drawbridge, and said (69 Conn. 649, 38 Atl. 398):

“* * » That decision rests upon the somewhat peculiar and exceptional state of facts in that case, and upon principles of maritime law that have no application here.”

In that case, which was a libel in personam, a steam barge signaled her approach and desired to pass through a drawbridge. Her signals being unheeded, she was compelled to wait, was caught by the ebb tide, struck the bottom, and sank. This was held to be a maritime tort, and that the court had jurisdiction for an injury done to a vessel on navigable water by a bridge or permanent structure, citing Boston v. Crowley (C. C.) 38 Fed. 202, 204, and Assante v. Charleston Bridge Co. (D. C.) 40 Fed. 765, 767.

Judge Townsend was of opinion that after the municipality had undertaken to manage and control the drawbridge, it was liable for misfeasance, although it might not have been originally charged with the duty of opening the draw, and he cites Judge Addison Brown in Edgerton v. The Mayor, etc., of New York (D. C.) 27 Fed. 233, and other cases, in support of the statement that—

“in constructing the bridge with a draw, and in undertaking to opon, and manage the draw, so as to allow vessels to pass, the state and the city have recognized the right of vessels to pass through without any appeal to the national authority to protect that right.” People v. Saratoga, etc., R. R. Co., 15 Wend. 113, 334, 136, 30 Am. Dec. 33; Escanaba Co. v. Chicago, 107 U. S. 678, 683, 2 Sup. Ct. 185, 27 L. Ed. 442; Miller v. Mayor, etc., of New York, 109 U. S. 385, 393, 3 Sup. Ct. 228, 27 L. Ed. 971.

Judge Brown states the rule (quoted by Judge Townsend with approval) :

“Having thus recognized the rights of commerce and undertaken to provide accommodations for the passage of vessels, the corporation is bound that the custodians of the bridge shall use ordinary diligence to avoid accidents to vessels going through the draw at customary hours and in the eustomaxy manner, as one of the incidents of the care, management and control of the bridge itself. It is responsible, therefore, for the want of ordinary care and diligence in its servants, and for the consequent damage.”

The bridge was an obstruction to navigation. It was so held by the Circuit Court of Appeals in the Seventh Circuit in Clement v. Metropolitan, etc., Ry. Co., 123 Fed. 271, 59 C. C. A. 289, and that the right of navigation was paramount; that the bridge must be so constructed that it might be readily opened to permit; the passage of vessels, and must be placed in charge of competent persons and be equipped with lights and signals, and give timely warning to approaching vessels, if for any reason it could not bé opened.

[5] It would seem that, without any statutory requirement of the United States relative to the operation of drawbridges over navigable waters, the city, in the management of the draw of the bridge, must be held to ordinary care, having in mind the purposes for which the draw was made and the circumstances of the case.

But Congress have expressly imposed positive duties in the management of such drawbridges. Section 5, Act Aug. 18, 1894, c. 299, 28 Stat. 362, Comp. St. 1913, § 9973, provides:

"That it shall bo the duty of all persons owning, operating and tending the drawbridges now built, or which may hereafter be built across the navigable rivers and other waters of the United States, to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of War the public interests require to govern the opening of drawbridges for the passage of vessels and other watercrafts, and such rules and regulations, when so made and published, shall have the force of law. * * * ”

We have not been favored with those rules and regulations, but Congress have provided, also, that:

“If the bridge shall ibe constructed with a draw, then the draw shall be opened promptly by the persons owning or operating such bridge upon reasonable signal for the passage of boats and other water craft. * * * ” Act March 23, 1906, c. 1130, § 4, 34 Stat. at L. p. 85 (Comp. St. 1913, § 9964).

While we have found no cases dealing with these requirements relating to a drawbridge, yet the measure and extent of the duty imposed by these statutes may, by analogy, be drawn from other statutory regulations applicable to cases of negligence within the jurisdiction of the courts of admiralty.

It is required by article 16, Act Aug. 19, 1890, c. 802, § 1, 26 Stat. 326, Comp. St. 1913, § 7854, that—

“a steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the ease admit, stop her engines, and then navigate with caution until danger of collision is over.”

In the case of Clyde S. S. Co. (D. C.) 134 Fed. 95, 97, it was held that failure to observe this requirement created a presumption of fault. See, also, The Georgic (D. C.) 180 Fed. 863.

The mates of vessels are required to be licensed. U. S. Comp. St. 1913, § 8200. It was held in The Eagle. (D. C.) 135 Fed. 826, that when one of two vessels in collision was in charge of an unlicensed mate there is a presumption that that fact caused or contributed to the collision, and the burden is upon the vessel to show that the collision was not attributable to that fact.

Again, under the act of April 29, 1864 (Comp. St. 1913, § 7963):

“Every steam-vessel, when approaching another vessel, so as to involve risk of collision, shall slacken her speed, or, if necessary, stop and reverse. * * * ”

It was held in the case of Fred W. Chase (D. C.) 31 Fed. 91, 94, that this rule applied notwithstanding the existence of a gale.

Judge Swan held in The Eansdowne (D. C.) 105 Fed. 436, 443, that under the decisions of the English and American courts in case of collision, it is incumbent upon a vessel which has disregarded a rule of navigation to show that its violation not only did not contribute to the collision, but could not have done so.

The whole subject is comprehended in what Mr. Justice Strong says in The Pennsylvania, 19 Wall. 125, 136 (22 L. Ed. 148):

“The liability for damages is upon the ship or ships whose fault caused the injury'. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it fs no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory 'cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.”

While it might probably be going too far to say that the failure to open the bridge caused the injury to the vessel, yet the city, having disobeyed the positive statutory mandate, as well as a duty imposed upon the municipality by reason of undertaking to manage the drawbridge, should show that its failure' could not have contributed to the injury.

It is not necessary to decide that negligence is to be ascribed to the owner of a drawbridge, competently built and manned, because of his ■failure to turn the draw even upon signal, when a competent engineer would, to preserve the bridge, decline to turn the draw in an unusual gale of such force as to cause him to believe that to turn the draw would result in destruction to the bridge or destruction to a boat which had signaled for the opening of the draw. That is not this case. It is here shown that the chief engineer, had he been on duty, would have turned the draw. While it appears that an unusual gale was raging, there is no evidence at all that its. character would entitle it to be defined as “vis major” or “act of God.” And there is no satisfactory evidence in the case from which an inference may be drawn that the turning of the bridge would probably have resulted in its destruction, or destruction of the smokestacks of the fire boat. We say this notwithstanding the testimony of the assistant engineer who gave at least two reasons why he did not turn the draw, reasons not at all dependent upon or related to each other. The evidence tends to establish the fact that the bridge could have been handled in safety if care were taken that it go not too fast. Anxiety of the assistant engineer for the smokestacks of the fire boat was not justified. His view is shared by the captain and pilot of the fire boat, all testifying for the municipality, their employer. They are, however, expressing mere opinions which do not agree with the opinions of the owner of the ship and the captain of the Lorimer, both apparently competent navigators. The facts must tell the story.

If the fire boat was in the pocket described, what shall he said of the reason her pilot gives for blowing the three whistles ? It was—

“because we were afraid we could not get out of that pocket, and we wanted the bridge swung so that we could get through.”

In another part of his testimony he says his smokestack would have been knocked off if the bridge had swung. He said the only way the bridge could have been swung “was to eastern because they were fastened with the cables and things that went over on the bridge.” If, when he whistled, the spars of the ship were in contact with the bridge, the draw could not have been swung to eastern; certainly not without destroying all masts of the ship and probably the ship itself. The captain of the Elliott, standing on the bridge, described his boat as “about halfway alongside the cradle of the bridge," and that the ship was then fast in the bridge. The man with the captain testified that the Martin passed into the bridge broadside after the whistles were blown. The assistant engineer in charge, although he says he thought the draw might hit the smokestacks of the fire boat, says:

“Tli© fire boat was under steam -and T knew she could back up, so that was not any reason why I didn’t open the draw.”

The fact probably is that the fire boat, when the second attempt failed, shot off on the north side of the crib not! far from its end. It was completely in control; was a powerful boat and was not in any danger of having her smokestacks struck by the turning of the draw, unless she, voluntarily had stayed in a place of danger, if, indeed, she was in such a place; certainly not, if a competent person, careful not to let the draw go too fast in a heavy wind,’ had been in charge.

Why did the fire boat whistle at all if she did not intend that she, or the ship, or both, should be given the opportunity of going through the draw, and if the fire, boat was in the pocket and in danger of her smokestack being knocked off by the turning of the draw, why, in such a situation, .did she invite certain disaster to herself if her pilot knew, as he must have known, if it were true, that the draw could not turn eastwardly because the masts and spars of the ship were already in the bridge and falling by reason of contact with the draw itself. The inference is quite clear that when the signal was given the draw could have been turned eastwardly, if not both ways, and that if it could have been turned only westwardly that the fire boat could easily have gotten out of the way. In this state of the facts, it must be held that this reason for not turning the bridge is not a good reason, and not one which would have governed the conduct of a reasonably prudent and reasonably competent engineer. The fact is that the testimony of the assistant engineer in charge is so uncertain and unsatisfactory and contradictory that it is entitled to little, if any, weight. The opening of the draw wás the only chance the ship had. She might not have gone through, but, on the other hand, it is highly probable that she would have done so. It does not appear that she had actually jammed between the crib and the pier at any time. During the night her stern had swung around under the draw, and the ship was only prevented from going through by such rigging as was not broken catching on it. So says her owner; and it is not without significance that the man with the captain of the Elliott said that after the second hold gave way “the Martin was about in a position to go through the south side of the draw; that is when our lines parted.” It is true her anchors might have fouled the water pipe and held there, but her cables were 360 feet long, and she would have ridden at anchor that distance away from the bridge. The pipe might have broken, and the wind, continuing as it did until the next early morning and growing gradually less in force, might have carried her upstream some distance further, and she might have eventually come to grief.

In view of the broad admission by the city, in its answer, of its duty, and of the failure of the assistant engineer to open the draw when reasonable regard for the safety of the ship, and more especially when the statute expressly required him to open it, we are of opinion that it was incumbent tipon the city to show that the injury to the ship could not have resulted from the failure- to open the draw. In the absence of such showing we must and do find the city liable for negligence.

It follows that the judgment below must be reversed and the cause remanded, with instructions to enter a decree in accordance with this opinion, and to determine, by reference to a master, or otherwise, the loss to which the libelant is entitled.