Mr. Chief Justice Alvey
delivered the opinion of the Court:
The principal question in the court below was, and it is the principal question here, who was responsible for the cause of the injury to the vessel — by whose negligence, if there was negligence, was it that the damage was produced?
By the preliminary decree of August 27, 1895, it was decreed and sentenced that the libellants were the owners of the schooner “Ellen Tobin” at the time of the injury to her complained of in the libel, and that the respondents, Charles G. Smith and Charles G. Smith, Jr., were solely liable for such injury and damage thereby resulting to the libellants in the original libel, and that the latter were, not liable for any damages in the cross-libel. It was further decreed and sentenced that the first of the said causes, that arising on the original libel, be referred to a special commissioner with directions to ascertain and report the amount of damages to which the libellants were entitled, consisting of the value of the vessel immediately prior to the injury, together with the reasonable expenses of raising and removing said vessel and said wreck ; and further, that the com[481]*481missioner should consider the evidence already in the record, bearing upon the question referred to him, and such additional evidence as either party might think proper to introduce before him, and report with reasonable speed.
Under this reference, the special commissioner, upon the evidence already in the record, and after hearing further testimony on each side, and considering the same, made his report to the court on January 21, 1896, whereby he found the amount of damages, to which the libellants were entitled under the decree of the court, to be $7,063.12, estimating the value of the vessel at $6,000.
To this report both parties, libellants and respondents, excepted for several reasons assigned; and upon hearing the exceptions the court allowed the libellants to produce further testimony in open court; after which the cause came on for final hearing and decree, and on the 23d of March, 1896, the court decreed that the libellants w^re entitled to recover $10,478.09, being $8,000 for value of the vessel, with interest on that sum from August 6, 1893, to the date of the decree, 'and $1,063.12 for expenses of raising vessel and cargo, after allowing credit for value of wreck' and other things, and interest on that sum from November 5,1893, to date of decree. It is from this decree and sentence that respondents have appealed.
We shall not go into any detailed statement of the evidence. From a careful examination of the entire record, we are quite satisfied that the conclusions reached by the learned judge below, and embodied in the decrees referred to, are in all respects fully warranted by the evidence. We think it clearly established by the decided preponderance of the evidence, that the injury sustained by the vessel- was caused by the rock in the bed of the river, within the berth assigned to the vessel, and that such obstruction was negligently allowed to exist by the appellants, and that there was negligence and want of due care on their part in representing to the master of the vessel that the depth of the [482]*482water in the berth was sufficient to float the vessel, and to maintain her in safety while being loaded from the wharf. And there is an entire failure of evidence to establish the fact, as attempted to be shown by the appellants, that there was want of due care on the part of the master, and a failure to exercise proper supervision for the safety of the vessel, while she was moored at the wharf for the purpose of being loaded.
Such, then, being the case on the facts, what are the legal principles that properly apply to it?
It has long since been settled that the definition of the term “torts," when used in reference to admiralty jurisdiction, is not confined to wrongs or injuries committed by actual or direct force. It includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It is a rule of maritime law, from the earliest times, “that if a ship run foul of an anchor left without a buoy, the person who placed it there shall respond in damages.” Emerigon, Vol. 1, p. 417. “Hence, the impinging on an anchor or other injurious impediment negligently left in the way, has always been considered as coming within the category of maritime torts, having their remedy in the courts of admiralty.” Phil., Wilm. & Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209, 216.
In the case of Carleton v. Franconia Iron and Steel Co., 99 Mass. 216, the material facts were not unlike those of the present case. There the facts were, that the defendants built, owned and occupied a wharf extending below low water mark into public navigable waters, and excavated and used a dock in front of the same, as a berth for vessels, bringing cargoes of iron and steel to their works on and adjoining the wharf, to lie and discharge; that there'-was, and always had been, within the line of this excavation, and in front of a part of the wharf, which was to all appearances suitable for vessels to lie at when discharging their [483]*483cargoes, a large rock, concealed under the water and dangerous to such vessels, the existence and dangerous nature of which were known to the defendants, but not to the plaintiffs;- that the plaintiffs’ vessel came to the wharf by procurement of the defendants, bringing a cargo of iron to them under a verbal charter between the parties, and, while lying at this part of the wharf, settled down with the ebb of the tide upon the rock, without any negligence of the plaintiffs, or of any one employed by them, and was broken in and bilged. In that case, it was held' by the court, Mr. Justice Gray delivering the opinion, “that it was immaterial whether the danger had been created or increased by the excavation made by the defendants, or had always existed, if they, knowing of its existence, neglected to remove it or to warn those transacting business with them against it. Even if the wharf was not public but private, and the defendants had no title in the dock, and the concealed and dangerous obstacle was not created by them or by any human agency, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners, or their agents or servants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe.”
And in- a subsequent case, in the same court, that of Nickerson v. Tirrell, 127 Mass. 236, it was held, that the owner or occupant of a wharf is liable to a person, who, by his invitation, express or implied, and in the exercise of due care, places a vessel in the dock, for an injury caused to the vessel by any defect in the dock or by its unsafe condition, which the owner or occupant negligently causes or permits to exist, and the existence of which he knows, or ought, in the exercise of ordinary care, to know — citing as authorities for the principle stated the cases of Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron and Steel Co., supra; Thompson v. Northeastern Railway, 2 B. & S. 106; Mersey Docks v. [484]*484Gibbs, L. R. 1 H. L. Cas. 93.
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Mr. Chief Justice Alvey
delivered the opinion of the Court:
The principal question in the court below was, and it is the principal question here, who was responsible for the cause of the injury to the vessel — by whose negligence, if there was negligence, was it that the damage was produced?
By the preliminary decree of August 27, 1895, it was decreed and sentenced that the libellants were the owners of the schooner “Ellen Tobin” at the time of the injury to her complained of in the libel, and that the respondents, Charles G. Smith and Charles G. Smith, Jr., were solely liable for such injury and damage thereby resulting to the libellants in the original libel, and that the latter were, not liable for any damages in the cross-libel. It was further decreed and sentenced that the first of the said causes, that arising on the original libel, be referred to a special commissioner with directions to ascertain and report the amount of damages to which the libellants were entitled, consisting of the value of the vessel immediately prior to the injury, together with the reasonable expenses of raising and removing said vessel and said wreck ; and further, that the com[481]*481missioner should consider the evidence already in the record, bearing upon the question referred to him, and such additional evidence as either party might think proper to introduce before him, and report with reasonable speed.
Under this reference, the special commissioner, upon the evidence already in the record, and after hearing further testimony on each side, and considering the same, made his report to the court on January 21, 1896, whereby he found the amount of damages, to which the libellants were entitled under the decree of the court, to be $7,063.12, estimating the value of the vessel at $6,000.
To this report both parties, libellants and respondents, excepted for several reasons assigned; and upon hearing the exceptions the court allowed the libellants to produce further testimony in open court; after which the cause came on for final hearing and decree, and on the 23d of March, 1896, the court decreed that the libellants w^re entitled to recover $10,478.09, being $8,000 for value of the vessel, with interest on that sum from August 6, 1893, to the date of the decree, 'and $1,063.12 for expenses of raising vessel and cargo, after allowing credit for value of wreck' and other things, and interest on that sum from November 5,1893, to date of decree. It is from this decree and sentence that respondents have appealed.
We shall not go into any detailed statement of the evidence. From a careful examination of the entire record, we are quite satisfied that the conclusions reached by the learned judge below, and embodied in the decrees referred to, are in all respects fully warranted by the evidence. We think it clearly established by the decided preponderance of the evidence, that the injury sustained by the vessel- was caused by the rock in the bed of the river, within the berth assigned to the vessel, and that such obstruction was negligently allowed to exist by the appellants, and that there was negligence and want of due care on their part in representing to the master of the vessel that the depth of the [482]*482water in the berth was sufficient to float the vessel, and to maintain her in safety while being loaded from the wharf. And there is an entire failure of evidence to establish the fact, as attempted to be shown by the appellants, that there was want of due care on the part of the master, and a failure to exercise proper supervision for the safety of the vessel, while she was moored at the wharf for the purpose of being loaded.
Such, then, being the case on the facts, what are the legal principles that properly apply to it?
It has long since been settled that the definition of the term “torts," when used in reference to admiralty jurisdiction, is not confined to wrongs or injuries committed by actual or direct force. It includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case. It is a rule of maritime law, from the earliest times, “that if a ship run foul of an anchor left without a buoy, the person who placed it there shall respond in damages.” Emerigon, Vol. 1, p. 417. “Hence, the impinging on an anchor or other injurious impediment negligently left in the way, has always been considered as coming within the category of maritime torts, having their remedy in the courts of admiralty.” Phil., Wilm. & Balt. R. Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209, 216.
In the case of Carleton v. Franconia Iron and Steel Co., 99 Mass. 216, the material facts were not unlike those of the present case. There the facts were, that the defendants built, owned and occupied a wharf extending below low water mark into public navigable waters, and excavated and used a dock in front of the same, as a berth for vessels, bringing cargoes of iron and steel to their works on and adjoining the wharf, to lie and discharge; that there'-was, and always had been, within the line of this excavation, and in front of a part of the wharf, which was to all appearances suitable for vessels to lie at when discharging their [483]*483cargoes, a large rock, concealed under the water and dangerous to such vessels, the existence and dangerous nature of which were known to the defendants, but not to the plaintiffs;- that the plaintiffs’ vessel came to the wharf by procurement of the defendants, bringing a cargo of iron to them under a verbal charter between the parties, and, while lying at this part of the wharf, settled down with the ebb of the tide upon the rock, without any negligence of the plaintiffs, or of any one employed by them, and was broken in and bilged. In that case, it was held' by the court, Mr. Justice Gray delivering the opinion, “that it was immaterial whether the danger had been created or increased by the excavation made by the defendants, or had always existed, if they, knowing of its existence, neglected to remove it or to warn those transacting business with them against it. Even if the wharf was not public but private, and the defendants had no title in the dock, and the concealed and dangerous obstacle was not created by them or by any human agency, they were still responsible for an injury occasioned by it to a vessel which they had induced for their own benefit to come to the wharf, and which, without negligence on the part of its owners, or their agents or servants, was put in a place apparently adapted to its reception, but known by the defendants to be unsafe.”
And in- a subsequent case, in the same court, that of Nickerson v. Tirrell, 127 Mass. 236, it was held, that the owner or occupant of a wharf is liable to a person, who, by his invitation, express or implied, and in the exercise of due care, places a vessel in the dock, for an injury caused to the vessel by any defect in the dock or by its unsafe condition, which the owner or occupant negligently causes or permits to exist, and the existence of which he knows, or ought, in the exercise of ordinary care, to know — citing as authorities for the principle stated the cases of Wendell v. Baxter, 12 Gray, 494; Carleton v. Franconia Iron and Steel Co., supra; Thompson v. Northeastern Railway, 2 B. & S. 106; Mersey Docks v. [484]*484Gibbs, L. R. 1 H. L. Cas. 93. Id that case, there was evidence that the owner of the wharf directed the master where to place the vessel, and, on the master asking if it was a proper place to lay the vessel, he received for reply that it was all right, there was no trouble about the dock; and it was held that the defendant was not entitled to have the jury instructed that if the master placed his vessel there without previous examination or measurement the defendant was not responsible.
Upon the same principle it was held in the case of Barber v. Abendroth, 102 N. Y. 406, that the owner of a wharf is liable for an injury to a vessel lawfully using it, occasioned by an obstruction in the river bottom adjoining it, known to him, but not to the master of thp vessel — quoting and following the case of Sawyer v. Oakman, 1 Low. 134, and same case affirmed in 7 Blatchf. 290.
This question of the liability of a wharfinger for negligent injuries to vessels at the wharf, has frequently arisen in the Federal courts of the country, and it has been uniformly ruled the same way, and in accordance with the principle we have just stated. Among the many cases that might be referred to we will only mention those of O'Rourke v. Peck, 40 Fed. Rep. 907; Christian v. Van Tassel, 12 Fed. Rep. 884; The Stroma, 50 Fed. Rep. 557, 561; Penn. R. Co. v. Atha, 22 Fed. Rep. 920; Leonard v. Decker, 22 Fed. Rep. 741; Union Ice Co. v. Crowell, 55 Fed. Rep. 87.
The evidence in the case, as we have already stated, leaves no doubt of the fact that there was a large rock in the bed of the river within the berth occupied by the vessel in front of the wharf, and that such rock was the cause of the breaking and sinking of the vessel. But it is argued for the appellants that, assuming such to be the fact, yet the evidence is insufficient to show knowledge on the part of the appellants of the existence of such rock in the berth, or of its dangerous character; and that without such knowledge, there is nothing to fix upon them any such negligence as would [485]*485render them responsible for the injury. But it would be difficult to conclude, upon the evidence in this record, that the appellants did not have knowledge of the existence of the rock and of its dangerous nature. They had been for some years in the use of the wharf, and of this particular berth; and it appears that not a great while before the occurrence of the accident in question a vessel, while being loaded with stone from the same wharf, and occupying a berth in front of it, struck upon a rock and was injured, and this fact was brought distinctly to the knowledge of the appellants. And subsequently the berth was dredged, and rock was found upon the bottom that was not removed. But let the fact as to actual knowledge be as it may, it would seem to make no difference upon the question of liability of the appellants. They were bound to know the condition of the berth before they represented it to be safe, or invited the vessel to be moored therein. Nickerson v. Tirrell, supra.
In the cases of the Mersey Docks v. Gibbs and v. Pierce, 11 Ho. Lords Cas. 686, there were two cases that arose out of the same transaction. A ship called the “ Sierra Nevada,” in entering, or endeavoring to enter, one of the docks of the appellants, sustained injury by reason of a bank of mud left negligently at its entrance. The ship and the cargo were both damaged ; and two actions were brought against the appellants, one by the owner of the cargo and the other by the owners of the ship. In those cases, among other defences, the want of knowledge of the obstruction by the appellants was relied on; but in both cases the Exchequer Chamber held that the appellants were liable; and upon appeal to the House of Lords, and after a most exhaustive discussion, both judgments were affirmed. It was there laid down as clear law, that persons who have a duty to perform, and who may be made responsible for injuries if they know of the causes of mischief which in the discharge of that duty they ought to remedy, are equally responsible if they negligently remain ignorant of those causes of mischief, [486]*486and so leave them unremedied. See, also, the case of Dock and Harbour Board v. Penhallow, in Exchequer Chamber, 7 H. & N. 229, 236.
The appellants have cited, and relied much upon, the case The Calliope (1891), App. Cas. 11, as to the circumstances under which a wharfinger will not be held responsible for injuries to vessels while lying at a wharf. But clearly that case has no application to the present. In that case there was no representation or assurance as to the depth of the water at the wharf, and there was no invitation to enter the berth; and the court expressly found that the grounding of the vessel was caused by the negligence of the master and pilot, and therefore held the wharfinger not liable.
The appellants being liable for the injury, the next question is, what is the extent of the recovery to which the appellees are entitled ? They are entitled to full indemnity for their loss, provided no part of that loss has been occasioned by the failure of the appellees, their agents or servants, to exercise ordinary skill and diligence to stay or prevent the increase of loss after the occurrence of the accident. The Baltimore, 8 Wall. 377. The evidence wmuld seem to make it clear that no ordinary skill or effort on the part of the master of the vessel, or of the appellees, the owners, could have been exercised effectively to save the vessel from total loss after she had broken and sunk, or after it was found that she had taken so much water that she could not be relieved by the use of her pumps. After she had sunk, nothing remáined' to be done but to get out the cargo, and to remove the wreck, which the owners were required to do under the statute. Under the circumstances of the case, we see no ground for holding that the injury was increased or the damages in any manner enhanced by the delay in attempting to raise and remove the vessel. And taking into consideration all the circumstances of the case, and comparing the conflicting evidence [487]*487in respect to the value of the vessel at the time of the injury sustained, we are of opinion that the court below has not exceeded reasonable limits of indemnity, according to settled principles of law, in the sum awarded to the appellees^ by its final decree and sentence of the 23d day of March, 1896.
The cross-libel filed by the appellants was dismissed by the court below, and in so disposing of that libel and claim we perceive no error. The appellees were hot in fault in allowing the vessel to sink, as charged in the cross-libel, and they appear to have acted with reasonable diligence, under the special circumstances of the case, in providing for raising and removing the vessel from the wharf of the appellants.
Upon the whole, we are of opinion that the decree of August 27, 1895, and the final decree of March 23, 1896, should be affirmed; and it is so ordered.
Decrees affirmed, with costs.