Messena v. The Neilson

17 F. Cas. 168

Opinion

BETTS, District Judge.

I shall lay out of view in this case the fact that the Julia was off her station at the time of the collision, as affording any excuse for a trespass committed upon her. This was no malfeasance which the claimant could set up as a bar to his liability for his own illegal conduct The-libellants may have been liable to fine or disability, because of disobedience to the regulations of the service in which they were subordinate, but such delinquency would not outlaw them in respect to the fullest protection, and remedy in this suit, if wronged in their persons or property, by the unjustifiable acts-of the claimant or his agents. Their act was not a fault in itself conducing to the collision,, and thereby also inflicting an injury upon the claimant, because the Neilson had no reason for guarding herself specifically against the Julia, or to suppose she was near the station ship or in any other particular position. Her being found in this place, therefore, could in no way mislead the colliding vessel in the choice of her own course, or in the manner in which she pursued it.

Nor shall I regard the question of title to-the Julia, or the competency of the libellants to maintain this action upon the footing of the provisional interest accruing to them in the vessel under the arrangement for her-purchase, whether set up as a legal or equitable ownership, or a right to an exclusive possession and use of the vessel. Mr. Blunt’s-testimony proves that he considers himself the trustee of the Insurance Co. creditor, and to be to the libellants no more than a pipe of conveyance, by which tne title is to be-transmitted to the libellants, when the debt owed the company is extinguished. To that period he regards himself the trustee of that creditor; and if the debt is not paid, he supposes the boat is to be devoted by him to that end. The libellants do not produce proof of the paper title to the boat, from Grinnell to-them, although they offer in evidence papers prepared and partially executed for that purpose. Passing by those collateral points, I shall look only at the merits of the case involved in the charge of culpability of the Neilson, and the right of the Julia to damages incurred in the transaction which occasioned the loss, assuming that the libellant had a possessory interest in her at the time, which was destroyed or injured by the collision.

A cardinal principle lying at the bottom of actions for collision, at sea is that the party setting up an offence or tort, to have been committed to his damage by another, must show himself clear of any misfeasance or remissness conducing to or promoting the injury. He grounds himself in his plaint essentially on the assumption that every thing incumbent on him by law to do in respect to the preparation and management of his vessel on the occasion was duly performed, and in a cautious and skillful manner, and ’ these matters must be clearly proved by him. Abb. Shipp. 306; Story, Bailm. § 609. And if that was not so. he could stand only upon his common-law remedies, under which he is debarred all remuneration in his losses, when what he suffers is attributable wholly to the want of proper diligence or precaution on his part. As the complaining party, he must supply preponderating proof that the injury he sustained proceeded from negligence or the want of skill in the management of the vessel he proceeds against, and charges with causing him the loss he has sustained. The Catherine of Dover, 2 Hagg. Adm. 145; The William Young [Case No. 17,760]; The Relief [Id. 11,693]. The position of the Neilson to the rear and windward of the Julia imposed upon the former the duty of keeping clear of the latter in passing her. The Governor [Id. 5,645], But she is relieved of blame in failing to do so, if, from causes not under her own control, but, on the contrary, created or promoted by the Julia, she was prevented discovering her until too late to escape her. Peck v. Sanderson, 17 How. [58 U. S.] 178. It appears to me the evidence on the part of the libellants themselves clearly casts the blame upon them in this respect. If not actually lying to at the time, the Julia was enveloped in a thick cloud in almost a motionless state. She was discernible only a few yards distance from a vessel proceeding from northerly towards the east, and there being no more than a small binnacle light in use, and that not exhibited on deck in a way calculated to afford warning to vessels nearing her, and with only one small boy on -deck to manage the vessel and keep a lookout. Bach of these particulars are evidence of culpable negligence on the part of the libellants, and would excuse the Neilson from responsibility for the consequences of the collision, especially upon the clear and positive testimony given by the claimants, that the Julia was not in fact discovered from the Neilson until too late for her to take any effectual measures to escape a collision.

The case before cited — [Peck v. Sanderson] 17 How. [58 U. S.] 178 — declares the rule to be that the omission of a vessel injured by a collision to supply proper notice of her position to another known to be in a dangerous proximity to her relieves the colliding vessel from liability for the injury done in consequence. The fact implied by the court in that case is distinctly proved in this by the libellants’ testimony that the helmsman on the Julia saw the light of the Neilson approaching and bearing directly upon the former, before he called the watch from below, and in time to allow a second call and several minutes to intervene, before he came on deck, and any warning light was shown to the Neilson, and which was the first notice to her that the Julia was in the way. These acts of neglect and culpable mismanagement on board the Julia are sufficient to bar all right of recovery in this case; but, independent of the faults of which the libellants were guilty, it is, in my judgment, satisfactorily proved that the Neilson was properly manned and conducted, and the rate of six or eight knots the hour at which she was running was not unsafe or imprudent at the time. It is further to be remarked that although the excusatory evidence offered by the libellants for the neglect and irregularity in the management of the Julia comes in part from the libellants themselves, and therefore, if admissible at all, must be received with distrust and great allowance, yet the testimony given by witnesses indifferent to the parties and the' controversy is overpowering to prove a plain and culpable neglect and want of precaution in failing to signalize the Neilson in some proper way, and apprize the latter of her position, after the boy at her helm became aware the other was nearing her in her position, and whilst there remained ample time to give such warning as would have placed it in the power of the Neilson to protect both from harm. It was not necessary that the Neilson. to exonerate herself from responsibility for this injury, should show she exercised the highest possible diligence and precaution to avoid it. That might require her to come to absolutely and suspend all movements during the night; it is sufficient for her to exercise the usual and ordinary precaution of vessels under way, and with that restriction she was entitled to continue her voyage notwithstanding possible circumstances might intervene rendering her navigation dangerous to other vessels. Stuart v. Foster, 1 How. [42 U. S.] 93. The testimony of disinterested witnesses satisfactorily proves the speed of the Neilson at the time to have been no greater than was prudent as she was manned and managed, not exceeding 6 to 8 miles the hour, and the boy on the Julia proves he saw her light distinctly a mile or more off. Under the facts in evidence, I hold, therefore, that the fault of the collision lies primarily with the Julia, and that the libellants cannot therefore sustain this action to charge the consequences of it upon the Neilson.

Libel dismissed, with costs to be taxed.