Prologue — Homer Ramsdell Co. v. Comp. Gen. Trans.

(17,584. )

SUPREME COURT OF THE UNITED STATES.

OCTOBER ‘TERM, 1900.

No. 166.

THE HOMER RAMSDELL TRANSPORTATION COMPANY,

PLAINTIFF IN ERROR,

US.

LA COMPAGNIE GENERALE TRANSATLANTIQUE.

ON A CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SECOND CIRCUIT.

INDEX

Original. Print.

Notice of presentation of order ..... ..... eA ee tobe l 1

Certificate of judges of United States circuit court of appeals..... 2 |

Statement Lereguvteie ) Sets CA eau wea ibale ch. 2 ]

Questions certified .... ha Tee ie Jeubeetver aware. fe 3 2

Amended complaint .. | .. Sp eae eye ae fears 5 2

a pels Cr aeanLT an GEN is ork ee Pee pea BR EE AG 1] 6

Referee’s report ................ wai Ce Pepa s tybn } 16 9

Opinion of referee... GAS IER Seseess Bie ec biaes 22 12

Judgment of United States circuit court.... ...... Me fio a5) 40 23

nn STE RO La ee ee ai hcarrahon debi, 42 23

Jupp & Derweicer, Printers, Wasnineton, D. C., August 2, 1900.

a H. R. T. CO. VS. LA COMPAGNIE GENERALE TRANSATLANTIQUE. 1

1 United States Circuit Court of Appeals for the Second

Cireuit.

Tue Homer Ramspett. Transportation Company, Plaintiff in)

Error,

against

La CoMPAGNIE GENERALE ‘TRANSATLANTIQUE, Defendant in

Error.

Sir: You will please take notice that a proposed order herein, of

which a copy is hereto annexed, will be presented at the office of the

clerk of the above-named court on the 24th day of November, 1899,

at 10.30 o'clock in the forenoon of that day, for presentation to the

judges thereof for settlement.

Dated New York, November 23rd, 1899.

Yours, ete., JONES & GOVIN,

Attys for Defendant in Error.

To E. L. Fancher, Esq., att’y for plaintiff in error.

2 United States Cireuit Court of Appeals for the Second

Circuit.

Tue Homer RaMspert TRANsrorration Company, Plaintiff in )

Error,

against

La CoMPAGNIE GENERALE TRANSATLANTIQUE, Defendant in

Error.

This cause came on to be heard and is now pending in this court

upon a writ of error to the circuit court of the United States for

the southern district of New York to review the judgment rendered

in the above entitled suit by the said cireuit court, dismissing the

plaintiff’s complaint with costs and disbursements of this action,

upon the report of a referee appointed to hear and determine all

the issues in the said action.

_ The defendant in error is a foreign corporation, owning and ply-

Ing a regular line of steamers between Havre aud New York. On

the morning of December 10th, 1892, one of the defendant’s steam-

ers, “ La Bretagne,” while outward bound from the port of New

York to Havre by way of Sandy Hook, with cargo and passeugers,

struck the plaintiff’s pier, damaging it to the amount of upwards

of thirteen thousand (13,000) dollars. ‘Phe said vessel at the

3 time she left her pier was in all respects seaworthy and prop-

_erly manned, equipped, and supplied, and her owner exercised

due diligence to make her so. She had on board a Sandy Hook

pilot, duly licensed under and pursuant to the laws of the State of

New York, and was navigated under his direction up to the time of

said collision, and all his orders were promptly and efficiently obeyed

and carried out by the master, officers, aud crew of said steamship,

2 THE HOMER RAMSDELL TRANSPORTATION CO. Ys,

The said collision and the damage resulting therefrom were caused

solely by the negligence and want of skill and care on thie part of

the said pilot and not by any want of skill or negligence on the

part of the master, other officers, or crew of the said steamship,

Certain questions of law arise in the cause concerning which the

court desires the instructions of the Supreme Court for its proper

decision and which are as follows:

First. Whether the provisions of chapter 467 of the laws of New

York passed June 28, 1853, as amended by chapter 196 of the laws

of said State passed April 11, 1854; chapter 245 of the laws of the

said State passed April 3rd, 1857 ; chapter 930 of the laws of the said

State passed May 16, 1867, and chapter 548 of the laws of said State

passed May 2, 1870, and consolidated into sections 2093 to 2123, in-

clusive, of chapter 410 of the laws of said State passed July 1, 1882,

impose compulsory pilotage on foreign vessels inward and

4 outward bound to and from the port of New York by way of

Sandy Hook, in view of the decisions of the New York court

of appeals.

Second. Whether in an action at common law the ship-owner is

liable for injuries inflicted exclusively by negligence of a pilot ac-

cepted by a vessel compulsorily.

In accordance with the provisions of section 6 of the act of Mareh

3, 1891, establishing circuit courts of appeal, ete., the foregoing ques-

tions of law are by the circuit court of appeals hereby certified to

the Supreme Court.

And it is ordered that the clerk of this court do certify the plead-

ings, the report, and the opinion of the said referee, together with

the judgment of the said circuit court entered upon the said report,

and transmit the same to the Supreme Court for its inspection and

examination in auswering and determining the said questions.

Dated New York, March 18th, 1899.

WM. J. WALLACE,

U.S. Cireuit Judge.

E. HENRY LACOMBE, U. 8. ©. J.

N. SHIPMAN, U.S. Circuit Judge.

5 United States Circuit Court for the Southern District of New

York.

(Action removed from the supreme court of the State of New York.)

Tue Homer RamspieL_t TRANSPORTATION

Company | Amended Complaint.

against Trial to be Had in

THe CoMPAGNIE GENERALE TRANSATLANTIC the City and County

(a Foreign Corporation, Known as the of New York.

French Line of Mail Steamers).

The complaint of the above-named plaintiff respectfully alleges:

1. The plaintiff, The Homer Ramsdell Transportation Company,

is a domestic corporation now existing, and organized and incor

porated January 6, 1880, under and pursuant to the provisions

LA COMPAGNIE GENERALK TRANSATLANTIQUE, 3

the act of the legislature of the State of New York, being chapter

40, Laws of 1848, entitled “An act to authorize the formation of

corporations for manufacturing, mining, mechanical, chemical,

agricultural, horticultural, medical or curative, mercantile or com-

mercial purposes, passed February 14, 1848, and the several acts of

said legislature, supplementary and amendatory thereof (see 3 R.S.,

Sth ed., p. 1953 et seg.), and ever since said organization and incor-

poration, the said Homer Ramsdell Transportation Company has

beev, and still is, in lawful existence and operation, carrying on the

business of transporting freight aud passengers and propelling

steamers by steam power on the Hudson river, in said State, be-

tween the city of Newburgh and the city of New York, in said

State.

6 2. For the purpose of such transportation business one of

‘plaintiff’s incorporators, Homer Ramsdell, entered into and

received from the mayor, aldermen aud commonalty of the city of

New York by the board of docks, thereto duly authorized, an in-

denture of lease, made aud dated on the 28th day of August, 1889,

by and between the said the mayor, aldermen and commonalty of

the city of New York by the board of docks, parties of the first part,

and the said Homer Ramsdell, of Newburgh, Orange county, N. Y.,

party of the second part, whereby the said parties of the first part

to the said lease, granted, bargained, sold, demised and assigned

unto the said Homer Ramsdell, party of the second part, and his

assigns, for the term of ten years from the first day of February,

1889, alland singular, the whartage which may arise, acerue, or be-

come due for the use and occupation in the manner aud at the rates

prescribed by law, of

All that certain public wharf property situated on the North

river, in the city and county of New York, and known and de-

scribed as follows, to wit: Pier number twenty-four (24), new, near

the foot of Franklin street, including the spurs or triangular pro-

jections or extensions on the sides thereof, and the right to use and

occupy the same for the special kind of commerce carried on by

steam transportation.

Together with the right to enter upon the said wharf property

for the purposes of said lease, and to collect the said wharfage, and

to use and occupy the same, as aforesaid, with a-covenant of renewal,

of the said lease for a further term of ten years on the terms and

conditions therein specified.

And in and by the said indenture of lease it was provided,

among other things, as follows, to wit:

“And the said parties of the first part hereby grant and permit to

the said party of the second part the right to erect, construct

7 und maintain upon the said pier, during the terms of these

__presents, including the renewal thereof, if any, as herein

leer shed, said shed to be erected in accordance with the

aws and regulations in such cases made and provided, and in con-

formity with the plans and specifications submitted therefor, which

have been approved, the work to be done under the direction and

Supervision of the engineer-in-chief of the department of docks.”

4 THE HOMER RKAMSDELL TRANSPORTATION CO. YS.

And it was further provided in and by the said lease as follows:

“And the said party of the second part covenants and agrees

that he will, at all times during said term, including any renewal

thereof, put, keep and maintain the said wharf property, and every

part thereof, and the structure thereon, including the said shed,

spurs or triangular projections or extensions, in such good and suf.

ficient repair and condition as the boa rd of docks shall reasonably

require and deem necessary, under the direction and supervision

of the proper officer of the department of docks, and that all sueh

repairs during said term, or any renewal thereof, shall be done at

the sole cost, charge and expense of the said party of the second

part, his representatives or assigns ;” and the said lease was imme.

diately thereafter duly assigned to the plaintiff, and the plaintiff

assumed all the obligations and covenants of the said Homer Rams.

dell in and respecting the same and the said pier.

3. Ever since the execution of the said lease the said plaintiff

has been thereunder in the occupancy and possession of said pier,

new No. 24, North river,and has carried on there its transportation

business by its steamboats from Newburgh, aforesaid, to the said

pier, and is the owner thereof, and of the shed thereon.

And of late the dock department has extended the said

8 pier in connection with the said lease, and subject to the

provisions thereof, so that until the collision hereinafter

named, the said pier was six hundred and seventy-one feet in

length by sixty feet wide, and was with the shed thereon, in use by

the plaintiff, as such assignee and owner.

Portions of the said pier were sublet by the plaintiff to other

steamboat transportation companies coming from other places on

the Hudson river, and plaintiff was in receipt of rents from such

other transportation companies, which rents have been suspended

and lost in consequence of the said collision.

4. The defendant isa foreign corporation under the name of Com-

pagnie Generale Transatlantique, organized and existing under the

laws of the Republic of France, aud is generally knownas the French

line of mail steamers, between Havre and New York. Between said

Havre, a port in France, and the port of New York, the defendant

is engaged in the business of plying certain steamers for freight and

passengers, one of which steamers is named La Bretagne.

5. At about 8.30 a. m. on the 10th of December, 1892, the defend-

ant’s said steamship, La Bretagne, while outward bound from the

port of New York, having shortly before left her pier on the North

river, struck the said pier new No. 24 in the occupancy of the plaiu-

tiff, and did the following damage thereto:

Said steamship La Bretagne struck the north side of the said pier

and cut through the same to within about fifteen feet of the south-

erly side of the pier, destroying the same and breaking the piles,

eaps and other portions thereof, on which the same was placed, as

well as moving the floor of the same several feet southward, and

also breaking down and destroying a portion of the plaintiffs

shed on the said pier; and causing damage to the said pier

9 and shed to the amount of thirteen thousand dollars. ;

Said collision also damaged and injured the residue of

LA COMPAGNIE GENERALE TRANSATLANTIQUE, oO

said pier, and such damage has been, since the occurrence thereof,

necessarily repaired by the plaintiff under the supervision of the

proper officer of the dock department, at the expense of the plaintiff

to the amount of $13,153.34.

6. In addition. to the said immediate damage above mentioned

plaintiff is injured by the said collision of the said steamship by

having been deprived of the use of the said pier in the damaged

portions thereof during the time of said reparation, and also by be-

ing prevented from completing a lease to other transportation com-

panies for the use of the same to the extent of about two thousand

dollars.

Also the plaintiff has been damaged by the said collision in the

loss of rent on the said pier, paid by the plaintiff to the dock de-

partment for the time of said repairs, to the amount of $2,000 on

the outer extension of the pier, and toa further amount of $2,000

on the residue of the pier.

The aforesaid collision, and damages resulting therefrom, were

caused solely and only by the negligence and unskillful manage-

ment of the said steamship La Bretagne, and the officers and agent

of the defendant in charge thereof, and by reason of the negligence

and wrongful act of the defendant and its agent, servants and the

officers and other person or persons employed by the defendant or

under its authority.

7. Said plaintiff, under said lease and assignment and assumption

of its covenants, is liable to the dock department and the city of

New York, and has been required to rebuild said pier and shed, and

to repair the damages to the said pier and shed, and a notice to

effect such repairs has already been served from the dock depart-

ment on the plaintiff.

10 —- The said defendant has property now within the State and

city of New York in and upon the said steamer La Bretagne

now moored at the foot of Morton street, on the North river, and

also property in the office of the said company at No. 3 Bowling

Green, in the city of New York.

Wherefore the said plaintiff asks of this honorable court an at-

tachment pursuant to the provisions of the Code of Procedure, to be

issued against the said foreign corporation, the defendant, above

named,

And also demands judgment in this action against the said de-

fendant for the sum of eighteen thousand dollars for the aforesaid

damages of the plaintiff in the premises, with interest on that sum

from December 21, 1892, and the costs of this action.

E. L. FANCHER,

Altorney for Plaintiff.

City anp County or New York, 8s:

Homer S. Ramsdell, being duly sworn, says: That he is the sec-

retary of the above-named plaintiff, and has read the aforegoing

complaint and knows the contents thereof. That the same is true

to the knowledge of deponent, except as to the matters therein

6 THE HOMER RAMSDELL TRANSPORTATION CO VS.

stated to be alleged on information and belief and that as to those

matters he believes it to be true.

HOMER 8. RAMSDELL.

Sworn this 3d day of April, 1893, before ine.

WILLIAM H. HARRIS,

Notary Public, New York County.

ll Cireuit Court of the United States, Southern District of New

York.

Tur Homer Ramspevt TrANsportTATION Company, Plaintiff,

against >

THe Compagnit GENERALE TRANSATLANTIQUK, Defendant. |

The above-uamed defendant, answering the amended complaint

of the above named plaintiff, alleges:

As a first defense.

First. The defendant has no knowledge or information sufficient

to form a belief as to the allegations contained in paragraph or di-

vision of the said amended complaint marked “ 1,” and, therefore,

denies the same.

Second. The defendant has no knowledge or information sutticient

to form a belief as to the allegations contained in paragraph or di-

vision of the said amended complaint marked “ 2,” and, therefore,

denies the same.

Third. The defendant has no knowledge or information sufficient

to form a belief as to the allegations contained in paragraph or di-

vision of the said amended complaint marked “3,” and, therefore,

denies the same.

12 Fourth. The defendant admits the allegations contained

in paragraph or division of the said amended complaint

marked “ 4.”

Fifth. The defendant admits that at about 8.30 a. m. ou the 10th

day of December the steamship La Bretagne while outward bound

from the port of New York, having shortly before left her pier on

the North river, struck pier new No. 24, as alleged in paragraph or

division of the said amended complaint marked “5,” but the de

fendant bas no knowledge or information sufficient to form a belief

as to any of the other allegations contained in said paragraph or

division of the said amended complaint marked “5,” and, therefore,

denies the same.

Sixth. The defendant has no knowledge or information sufficient

to form a belief as to the allegations as to the plaintiff’s alleged

damages contained in paragraph or division of the said amended

complaint marked “ 6,” and, therefore, denies the same; and this

defendant denies that the aforesaid collision, and damages resulting

therefrom, were caused solely and ouly by the negligence and un-

skillful management of the said steamship La Bretegve, aud the

officers and agent of the defendant in charge thereof and by reason

LA COMPAGNIK GENERALK TRANSATLANTIQUE. 7

’ of the negligence and wrongful act cf the defendant and its agent

servants and the officers and other person or persons employed by

the defendant or under its authority.

Seventh. The defendant has no knowledge or information suffi-

cient to form a belief as to the allegations contained in paragraph

or division of the said amended complaint marked “ 7,” and, there-

fore, denies the same, except that the defendant admits that at the

date of the verification of the said amended complaint it had prop-

’ erty within the State and city of New York in and upon the said

"steamer La Bretagne, then moored at the foot of Morton

13. street, on the North river, and also property in its office at

No. 3 Bowling Green, in the city of New York.

Second defense.

t And the said defendant, further answering the said amended

complaint, alleges, upon information and belief, as a second defense:

That the wharf or pier mentivned in the said amended complaint,

and with which the defendant’s said steamship, La Bretagne, col-

fl lided at the time stated in the said amended complaint, is, aud was

at the said time of the said collision, an unlawful structure, an ob-

struction to navigation, and as such a public nuisance to a national

highway of commerce, to wit, the North or Hudson river, through

f which the said steamer was lawfully passing at the time of the said

collision, and at a place where she was, by reason of the exigencies

of navigation, obliged to pass, and that the free navigation of the

stream or river upon which the said wharf or pier is, and was,

fi erected, as aforesaid, is, and was, interfered with aud impeded,

which obstruction, interference and impediment prevented the said

steamship from freely manceuvring and passing clear of the same,

i aud, therefore, caused the collision stated in the amended com-

i plaint.

t Third defense.

And the said defendant, further answering the said amended

h complaint, alleges, as a third defense :

d That, at the time of the said collision, the said steamship, La

0 Bretagne, was in the command, and her movements and navigation

it entirely under the orders and direction, of a pilot, duly licensed

. under, and compulsorily imposed upon the defendant by,

fl 14 the authority of the State of New York, and that the regular

it officers and crew of the said steamship in the service of the

e, defendant had no part in the navigation of the said steamer except

to carry out or execute the orders of the said pilot, which they did

: promptly and efficiently in every particular.

d Fourth defense.

. And the said defendant, further answering the said amended com-

g plaint, alleges, as a fourth defense :

y First. That, at the time of the said collision, the said steamship,

: Bretagne, was in the command, and her movements aud navi-

gation entirely under the orders and direetions, of a pilot, licensed

8 THE HOMER RAMSDELL TRANSPORTATION CO. Vs.

and compulsorily imposed upon the defendant by the public ay

thority of the State of New York, as aforesaid, and, therefore, one of

the public servants of the said State, and not a servant of the de

fendant, and that the regular officers and crew of the said steamship

in the service of the defendant had no part in the navigation of the

suid steamer except to carry out or execute the orders of the said

pilot, which they did promptly and efficiently in every particular,

as also aforesaid.

Second. That, by virtue of various charters and laws, to which the

defendant prays leave to particularly refer, and prove upon the

trial of this action, there is, and was at the time of the said collision,

duly created and erected within, and asa part of, the said State, a

inunicipality thereof known as the mayor, aldermen and common-

alty of the city of New York, and that the water front and riparian

rights, including the right to erect and maintain a bulkhead, wharf

or pier on the land and land under water bordering the river or

stream in which the said collision occurred has been, and was at

the time of the said collision, among mauy other parts of the

15 said water front, above and below, entrusted to the said mu-

aicipality for public purposes, and that the said wharf or pier

has been erected, and was, at the time of the said collision, main-

tained in ostensible and alleged pursuance of such trust or privilege,

so conferred upon the said municipality, and was, therefore, a part

of the public property or domain of the said State of New York.

Wherefore, the defendant demands judgment that the said plain-

tift’s amended complaint be dismissed, with the costs and disburse

ments of this action.

JONES & GOVIN,

Defendant’s Attorneys, 45 Cedar Street, New York City.

Unitrep SraTes OF AMERICA, eis

Southern District of New York, j ~°

A. Forget, being duly sworn, deposes and says: That he is the

general agent of the above-named defendant for the United States

and Canada; that the foregoing amended answer is true to his own

knowledge, except as to the matters therein stated to be alleged ou

information and belief, and as to those matters he believes it to be

true.

A. FORGET.

Sworn to and subscribed before me this Ist day of May, 1895.

FREDERICK KOPF,

[seaL.] Notary Public (34), N. Y. Co.

LA COMPAGNIE GENERALE TKANSATLANTIQUE. 9

16 Circuit Court of the United States, Southern District of New

York.

Tar Homer Ramspect Transportation Company, Plaintiff,

against

La ComMpaGNig GENERALE TRANSATLANTIQUE, Defendant.

Referee’s Report.

To the honorable the circuit court of the United States for the south-

ern district of New York:

Pursuant to an order of this court, entered herein on the

17. 16th day of October, 1893, referring it to me to hear and de-

termine the issues in this action and to report my decision

thereon, I, the undersigned, as said referee, do hereby respectfully

report that the oath prescribed by the New York Code of Civil Pro-

cedure was expressly waived by the parties, and having heard the

allegations and evidence of the parties, and having been attended

by Enoch L. Fancher and William H. Harris, Esquires, for the

plaintiff, and Edward K. Jones and William H. Blymyer, Esquires,

for the defendant, and after due deliberation, I decide and find as

follows :

Findings of Fact.

First. The plaintiff isa domestic corporation now existing and

incorporated January 6, 1880, as alleged in the first paragraph of

the amended complaint. It carries on the business of transporting

freight and passengers and propelling steamers by steam power on

the Hudson river, between the city of Newburgh and the city of

New York.

Second. For the purpose of such transportation business Homer

Ramsdell, one of the plaiutiff’s incorporators, entered into and re-

ceived from the mayor, aldermen, and commonalty of the city of

New York, by the board of docks, thereto duly authorized an in-

denture of lease, made and entered into on the 28th day of August,

1889, as parties of the first part, whereby the said Homer Ramsdell

and his assigns were granted for the term of ten years from the Ist

of February, 1889, all that certain public wharf property situated

on the North river, in the city and county of New York, and known

and described as follows, to wit: Pier number twenty-four (24), new,

near the foot of Franklin street, including the spurs or triangular

projections or extensions on the sides thereof, and the right to use

and occupy the same for the special kind of commerce carried

18 on by steam transportation, together with the right to enter

upon the said wharf property for the purposes of said lease,

and to collect the said wharfage, and to use and occupy the same as

aforesaid, with a covenant of renewal of the said lease for a further

term of ten years, on the terms and conditions therein specified.

And the said lessors thereby granted permit to the said Homer

gp to erect and maintain upon the said pier, during the said

— 166

10 THE HOMER RAMSDELL TRANSPORTATION CO, VS.

term, and any renewal thereof, a shed, to be erected in accordance

with the laws and regulations in such cases provided.

And it was further provided, in and by the said lease, as follows:

“And the said party of the second part covenants and agrees that

he will at all times during said term, including any renewal thereof,

put, keep and maintain the said wharf property aud every part

thereof and the structure thereon, including the said shed, spurs or

triangular projections or extensions, in such good and sufficient re-

pair and condition as the board of docks shall reasonably require

und deem necessary, under the direction and supervision of the

proper officer of the department of docks, and that all such repairs

during said term, or any renewal thereof, shall be done at the sole

cost, charge and expense of the said party of the second part, his

representatives or assigns.”

Third. Immediately after receiving the said lease said Homer

Ramsdell assigned to the plaintiff corporation the said lease and all

rights and privileges thereby granted, and the plaintiff assumed all

the obligations and covenants of the suid Homer Ramsdell contained

in the said lease respecting the said pier and shed. ‘The said as-

signimeut of lease to the plaintiff and the agreement of the plaintiff

tu assume all the covenants and liabilities therein contained, were

both dated and acknowledged on the 23d of November, 1889,

19 Fourth. Ever since the execution and assigumeut of the

said lease said plaintiff has been thereunder in the occupauey

and possession of said pier, new number twenty-four (24), North

river, and of the shed built thereon, and has carried on its said

transportation business by the said steamboats from Newburgh, as

aforesaid, to the said pier, until it was deprived of the use of a por-

tion thereof by the collision therewith of the defendant steamer, the

La Bretagne, as vereinafter stated.

Fifth. At the time of the collision hereinafter named the said pier

was six hundred and seventy-one feet in leugth by sixty feet wide,

and was, with the shed thereon, in use by the plaintiff as such

assignee.

Sixth. Portions of the said pier and sled were sublet by the plain-

tiff to other steamboat transportation companies plying their steam-

ers on the Hudson river, and tie plaintiff was therefrom in the

receipt of rents from such transportation companies.

Seventh. Such rents have been suspended and lost in consequence

of the collision hereinafter named, from the time of the said collis-

ion, December 10, 1892, to the 10th of March, 1893, and plaintiff

has lost the same by reason of such collision.

Eighth. The defendant is a foreign corporation under the name

of Compagnie Generale Transatiantique, organized and existing

under the laws of the Republic of France, plying its steamers be

tween Havre and New York, one of which steamers is named La

Bretagne.

Ninth. At about 8:30 a. m., on the 10th of December, 1892, the

defendant's said steamship La Bretagne, while outward bound

20 from the port of New York, having shortly before left her

pier on the North river, struck the said pier, new No. 24,1 |

LA COMPAGNIE GENERALE TRANSATLANTIQUE. 11

the occupancy of the plaintiff and did damage to the said pier and

shed to the amount of thirteen thousand one hundred and fifty-

three dollars and fifty-four cents, and such damage has been, since

the occurrence thereof, necessarily repaired by the plaintiff under

the supervision of the proper officer of the dock department, at the

expense of the plaintiff to the amount of $13,153.34 of which amount

$5,460 was paid by the plaintiff on the 15th of February, 1893, and

$7,693 on the 15th of March, 1893.

Tenth. The plaintiff also suffered damage by the said collision

in the loss of rent, as above mentioned, amounting to two thousand

two hundred and fifty dollars, which loss of rent was sustained by

the plaintiff on or before the 15th day of March, 1893.

Eleventh. Said plaintiff, under the said lease and assignment

thereof and assumption of its covenants, became liable to the dock

department of the city of New York, to repair and rebuild the said

damaged pier, and the dock department served a notice on the

plaintiff, requiring the plaintiff to effect such repairs immediately

after the collision, which the plaintiff accordingly did with all due

and proper diligence and despatch.

Twelfth. The said vessel, at the time she left her pier, No. 42

North river, was in all respects seaworthy and properly manned,

equipped and supplied, and her said owner exercised due diligence

to make her so. She had on board a duly licensed pilot, under and

pursuant to the laws of the State of New York, and was navigated

under his directions up to the time of the said collision, and all his

orders were promptly and efficiently obeyed and carried out by the

master, officers and crew of said steamship.

21 Thirteenth. The said pilot was not appointed by the owner

of said vessel, nor by the master thereof, but the said owner

and master were required and compelled by the law of the State of

New York to take said pilot and to allow him to take charge of the

navigation of said vessel.

Fourteenth. The said collisice and the damage resulting there-

from, as aforesaid, were caused solely by the negligence and want

of skill and care on the part of the said pilot, and not by any want

of skill or negligence on the part of the master, other officers or

crew of the said steamship.

Upon the foregoing facts I further find as

Conclusion of Law.

That the defendant is entitled to judgment dismissing the eom-

oe herein upon the merits, with costs to the defendant to be

taxed.

Dated New York, June 8, 1894.

WM. G. CHOATE, Referee.

12 THE HOMER RAMSDKLL TRANSPORTATION vO. Vs,

22 U.S. Circuit Court, Southern District of New York.

THe Homer Ramspett, TRANSPORTATION CoMPANy (

against

THE CoMPAGNIE GENERALE TRANSATLANTIQUE. \

Opinion of Referee.

This is an action at common law against the owner of the steam-

ship La Bretague for damages caused to the plaintiff’s pier No, 24

North river, under the following circumstances: The La Bretague

was lying at her dock No. 42 North river on the 10th December,

* 1892. About five minutes after 8 o’clock in the morning, the tide

being about the last of the ebb, the La Bretagne was backed out of

her slip in order to start on her voyage to Havre. She was in

charge of a Sandy Hook pilot. The tide being ebb, her wheel was

put hard-a-port, and she was backed toward the west side of the

river as far as it is usual or safe to bring her. A tug was employed

to push her stern upstream, and her engines were started full speed

ahead. She began to turn down the river, but when she had

reached about the middle of the river it was observed by the master

and pilot, who were together on the bridge, that she had ceased to

turn. The master and pilot were in consultation, and the master

suggested that it might be better to stop ber. The pilot, however,

thought that she had still room to turn in the river, and did not

immediately give the order to slow or stop; but after she had ran

a short distance further he gave the necessary orders to slow,

23 stop and back at full speed; but in spite of these precautions

she ran into the plaintiffs pier, striking it with her bow at

an angle of 45 degrees, some 20 feet or more from the end on the

north side, and inflicted considerable damage.

It is claimed on the part of tne defendant that there was no negli-

gence in the management of the steamer on the part either of the

master or the pilot, but at most an error of judgment, for the con-

sequences of which no action would lie.

think, however, that it is clear that the pilot was negligent.

The cause of the arrest of the turning of the steamer was probably

an uncer current of the new flood tide striking her bottom. — It was,

or should have been, evident to him before he gave the order tore:

verse that there was great danger of her running into the pier. He

is chargeable with knowledge of the tides and currents, and cannot

claim as a pilot to have been surprised at the action of the ship.

He seems to have supposed that the failure of the ship to turn to

starboard was temporary and would be presently overcome. In

this he took too great a risk, and should have given the order

to reverse sooner than he did, and thereby the accident would have

been avoided.

It is claimed on the part of the plaintiff that there was negli-

gence in going out upon the ebb tide; also in not employing two

tugs instead of one to turn the stern of the ship ups‘ream and in not

continuing the use of the tug which was employed longer in that |

LA COMPAGNIE GENERALE TRANSATLANTIQUE, 13

service. It was shown, however, that the tug employed was a

yowerful tug; that it was customary to employ one tug and not

two for this purpose, and that the tag so employed pushed against

the stern as long as it was practicable to do so after the engines of

the ship were started forward, and that it was necessary to start the

engines forward to prevent her striking on the other side of the

river. It was also proved that steamers backed out and turned in

the river upon the ebb tide, and that with proper care on the

2% ~~ part of the pilct this can safely be done. These allegations

of fault, therefore, appear to me to be groundless,

The next question is, whether there was any fault on the part of

the master in not interposing his authority to control the action of

the pilot, and to insist that he should stop the ship or back her

sooner than she was stopped and backed. There seems to be no

doubt of the authority of the master in an extreme case to super-

sede the authority of the pilot and to take charge of the ship himself

where it is necessary for the safety of the ship or the avoidance of

imminent danger. The cases, however, all agree that it must be an

extreme case of obvious danger or incapacity on the part of the

pilot to authorize such interference.

As regards the navigation of the ship, she is under the exclusive

control of the pilot, and, even while the master believes that the

action of the pilot is indisereet or involves danger, it does not fol-

low that he should interfere with the vavigation. He may do his

whole duty by pointing out what he conceives to be the danger, and

leaving the responsibility where it is, upon the pilot.

In the case of the Maria, 1 W. Rob., 110, Dr. Lushington says:

“It would be a most dangerous doctrine to hold, except under most

“extraordinary circumstances, that the master could be justified in

“interfering with the pilot in his proper vocation. If the two au-

“thorities could so clash, the danger would be materially aug-

“mented, and the interests of the owners, which are now protected

“both by the general principles of law and specific enactments,

“from liability for the acts of the pilot would be most severely

“prejudiced. It is the duty of the master to observe the conduct

“of the pilot, and in the case of palpable incompeteucy, whether aris-

“ing from intoxication or ignorance, or any other cause, to iuter-

“pose his authority for the preservation of the property of his em-

“ ployers.”

So in the Loehlibo, 3 W. Rob., 329, the same learned judge

25. says: “I should never go to the length of saying that the

“mere suggestion to the pilot on the part of the master to

“take in this sail, or otherwise to keep as near the South Sand

“light, and vice versa, or to bring the ship up, was interfering, in

“the legal acceptation of the term, with the duties of the pilot.

2 Illegal interference is of a different description. If, for example,

: in this case the boatswain had called out to the man below to star-

; board the helm, or, if the master had called out to port the helm,

It would be interference, but it would not be interference to con-

“sult the pilot or to suggest to him that the measures pursued were

14 THE HOMER RAMSDELL TRANSPORTATION CO. Vs,

“ not proper, or that other measures would, in all probability, be

“attended with greater success.” sf

In the case of the ship Marcellus, 1 Clifford, 491, Mr. Justicg

Clifford says: “ While on board, the pilot, in the absence of the

“ master, has the exclusive control, and direction of the navigation

“ of the vessel, but if the master is present the power of the pilot

“ does not so far supersede the authority of the master, that the latter

“may not, in case of obvious and certain disability or gross iguo-

“ranee and palpable and imminent danger or mistake, disobey his

“ orders and interfere for the protection of the ship and lives of those

“on board. Divided authority in a ship with reference to the same

“ subject-matter is certainly not to be encouraged, and can never be

“ justified or tolerated except in case of urgent and extreme neces

“sity. While standing by and witnessing a self-evident mistake,

“ manifestly and imminently endangering the ship, and certain to

“ cause a collision, the master should not remain silent, but might

“ well interpose so far, at least, as to point out the error and suggest

“the proper corrective.”

In the present case the master did his full duty in suggesting to

the pilot thedanger of proceeding, but in answer to his remonstranee,

the pilot explained that he thought the ship would eome round.

His knowledge or supposed knowledge of the tides and cur

26 rents and their effects upon the ship is or should be far su-

perior to that of the master. It is on account of this superior

knowledge that the ship is obliged to employ the pilot, and I think

it isclear that this ease does not come within that class of cases of

extreme peril or incompeteney in which the master is justified or it

becomes his duty to take the management and navigation of the ship

out of the hands of the pilot.

The next question is, whether the owner of a ship is liable at

common law for damages occasioned by the negligence of a pilot

compulsorily employed.

There is no doubt in this case that the law of New York compel

the ship to employ a pilot appointed by the State.

By the New York pilot law a foreign ship, when inward bound,

is obliged to take the first pilot that offers his service. While the

masters of certain vessels may be licensed to pilot their own vessels

it is provided in the statute that all vessels from foreigu ports shall

take a licensed pilot, or, in case of refusal, pay full pilotage; aud

it is further provided that any person not holding a license W

pilots a vessel in or out of the harbor of New York shall be held

guilty of a misdemeanor, and any one employing a person not hold-

ing a license to pilot a vessel, shall forfeit and pay the sum of $10.

The provision with regard to outward pilotage is that the pilot

who brought in the ship has the right by himself or one of his boat’

company to take her out unless he has been complained of for mis

conduct; subject, however, to the right of the ship-owner to object

to this particular pilot, in which case the commissioners of pi

shall assign another pilot from the same boat’s company to take the

ship out.

3 Rev. Stat. (7th ed.), p. 2017, 2019, 2020.

LA COMPAGNIE GENERALE TRANSATLANTIQUE, 15

If the ship-owner were at liberty to select a pilot out of a

97 elas of pilots licensed by the State, it could not be held that

the ship-owner was compelled to take the particular pilot

employed. But the right to object to one particular pilot certainly

does not make the appointment of another selected by the commis-

sioners from the same boat’s crew a voluntary appointment by the

owner of the vessel of such substituted pilot.

Inthe case of the China, 7 Wall., 53, the majority of the court held

that the New York statutes created a system of compulsory pilotage.

Both the master and the owner are subjected to penalties besides

their liability to pay fall pilotage in case of their refusal, and as to

the master such refusal is expressly made a misdemeanor. It seems

to me there can be no question that the pilotage is compulsory.

The plaintiff has proceeded by a common-law action. He could

not do otherwise, because the tort for which he proceeds is not a

marine tort, not being consummated on navigable water. The pier

injured is part of the land.

The Plymouth, 3 Wall., 20.-

The Maud Webster, 8 Ben., 547.

The Neil Cochran, 1 Brown’s Ad., 162.

The Ottawa, 1 Brown’s Ad., 356.

The M. R. Brazos, 10 Ben., 437.

Theadmiralty on the foregoing authorities would have had no juris-

diction to entertain the suit for the damage done to this pier, either

against the vessel or against her owner. The question involved

| therefore is one strictly of liability at common law.

, In England it is settled after a good deal of discussion that inde-

pendently of the statutes regulating the pilotage, and which exempt

: the owner from liability, the owner of a vessel cannot be held at

common law personally liable for the negligence of a pilot whom

the vessel is compelled to employ, for the reasou that the ground of

the liability of the owner for the negligence of those who

28 = navigate the vessel is based upon the relation between the

owner and the parties guilty of negligence, of master and

BB servant or principal and agent, and that as no such relation exist

. between the owner and the pilot who is imposed upon him by the

| superior authority of the State, the reason for the liability in case

ofa master or crew appointed by the owner ceases. The English

courts, however, hold that if the master or crew co-operate in any

| way in the negligent act of the pilot or the damage is caused by

their-disobedience of his orders, the owner is liable. ‘To exempt the

owner the fauit must be that of the pilot alone. The principal

English cases are the following:

The Maria, 1 W. Rob., 102.

The Protector, 1 W. Rob., 54.

The Agricola, 2 W. Rob., 19.

The Neptune 2ud, 1 Dods, 467.

The Christiana, 7 Moore P. C. C., 171.

The Geraloms, 3 Hagg., 169.

Bennett v. Morta, 7 Taunton, 258.

16 THE HOMER RAMSDELL TRANSPORTATION CO. Vs.

Att’y General v. Case, 3 Price.

The Annapolis, Lush., 312.

Caruthers v. Sydebotham, 4 M. & S., 77.

The Halley L. R., 2 Ad. & Ee. 3.8. C. L. R., 2 P. C., 201.

And the rule so established is quite in accordance with the gev-

eral principle of the law of master and servant or principal and

agent, which holds one person liable for the tortious act of another

only where the person committing the wrong is employed by the

person sought to be held. ‘

The mere fact that the person sought to be held derives some

benefit in au indirect way from the act done is not enough if the

person cominitting the wrong is employed by another party exer.

cising an independent employment. Thusa party hiring a carriage

of a livery-stable keeper is not liable for the negligence of

29 the driver, and the butcher employing a licensed drover to

lead a bullock through the city is not liable for the negligenee

of the servant of the drover, and a railroad coinpany is not liable

for re negligent act of the servant of the contractor who builds the

road.

Laugher v. Pointer, 5 B. & C., 547.

Milligan v. Wedge, 12 A. & E., 737.

Reedie v. R’y Co., 4 Exch., 241.

In this country the question of the liability of the owner of a ship

for the act of a compulsory pilot has received considerable discus

sion, but there appear to be only two cases in which the point has

been directly decided that the owner is liable in personam in such

case. These are the cases of Bussy v. Donaldson, 4 Dal., 206, by the

supreme court of Pennsylvania decided in 1800, and Williamson »,

Price, 4 Martin (N.S), 399, decided in 1826 by the supreme court

of Louisiana. ‘There are dicta, however, to the same effect in other

cases in this country, and especially in the case of the China, supra,

where Mr. Justice Swayne, delivering the opinion of the court, dis

approves of the rule of the English cases, and cites with approval

the case of Bussy v. Donaldson. The case of the China, however,

was the case of a proceeding in rem against the vessel for damages

from a collision caused by the fault of the pilot, and the decision

stands upon a ground wholly independent of the persona! liability

of the owners. As the court says in that case: “ The maritime law

“as to the position and powers of the master and the responsibility

“ of the vessel is not derived from the civil law of master and serv-

“ant, nor from the commou law; it had its source in the commer

“cial usages aud jurisprudeuce of the middle ages. * * * Ac

“cording to the admiralty law the collision impresses upon the

“ wrong doing vessel a maritime lien; this the vessel carries withit

“into whose ever hands it may come. It is inchoate at the

30 “moment of the wrong, and must be perfected by subsequent

“ proceedings.”

On the question of the liability of the vessel, the case of the

China has been followed by the same court in the case of the Mer

LA COMPAGNIE GENERALE TRANSATLANTIQUE. 17

rimac, 14 Wall., 199, which was not, however, a case of compulsory

pilotage like the ease of the China.

The opinion in the case of Bussy v. Donaldson, 4 Dal., 206, by

Shippen, C. J., shows that the point was taken before the court that

the owner was not liable for the reason that the pilot was not the

servant of the owner, but the officer of the State. The court says

of this point: “ The distinction is rather plausible than solid. The

“legislative regulations were not intended to alter or obliterate the

“principles of law by which the owner of a vessel was previously

“responsible for the conduct of the pilot; but to secure in favor of

“every person (strangers as well as residents) trading to our port, a

“class of experienced, skilful and honest mariners to navigate their

“ vessels safe up the bay and river Delaware. The mere right of

“choice indeed, is one but not the only reason why the law, in gen-

“oral, makes the master liable for the acts of his servant; and in

“ many cases, where the responsibility is allowed to exist, the servant

“may not, in fact, be the choice of the master. For instance, if the

“captain of a merchant vessel dies on the voyage, the mate becomes

“captain, and the owner is liable for his acts, though the owner did

“not hire him originally nor expressly choose him to succeed the

“captain. The reason is plain. He is in the actual service of the

“owner, placed there, as it were, by the act of God; and so, in the

“ease under consideration, the pilot was in the actual service of the

“owner of the ship, though placed in that service by the provident

“act of the legislature. ‘The general rule of law, then, entitles the

“plaintiff to recover; and we have heard of no authority,

dl =“ we can recollect none, that distinguishes the case of a pilot

“from those numerous cases on which the general rule is

“ founded.”

Smith and Brackenridge, JJ., concurred.

The reasons given for the rule seem to depend more upon consid-

erations of convenience than upon strict legal principle. If the

effect of the legislative regulation was to take the ship out of the

hands of her owner and put her in the hands of a public officer,

there seems to be no principle of law under which the owner could

be responsible for the negligence of such public officer, even if the

legislative act did not express any intention to alter or obliterate

what would otherwise have been the responsibility of the owner for

the act of the pilot—that is, for the act of a pilot appointed by the

owner. Of the many cases said to exist of semsonsinitity for the act

of another, though such other was not the choice or appointee of

the person held liable, the illustration is not a fortunate one. In

case of the death of the captain, the mate becomes captain with the

consent and by the authority of the owner, and whether appointed

by the owner himself or by the captain, he is appointed by the act

of the owuer or by his authority, and it is a part of his understood

duty by the maritime law to take command of the vessel in case of

the death of the captain. So the circumstance that the voyage is

for the benefit of the owner, and that the pilot is in his actual serv-

ice in the — that he is working towards the completion of the

18 THE HOMER RAMSDELL TRANSPORTATION CO. Vs.

voyage upon which the ship is sent by the owner, the same argu

ment would hold with reference to the passenger in the livery.

stable carriage, and would impose a responsibility for the drovers

servant upon the owner of the bullock, and indeed would impose

responsibility upon the owner of a ship for the negligent act of the

master or crew employed by the charterer.

The law is well settled that if the terms of the charter-party are

such as to amount to a demise of the ship, putting her out

32 of the control and possession of the owners, and under the

coutrol and into the possession of the charterers, who appoint

the master and crew, the owners are not responsible for the negli-

gent acts of the master and crew, whether to persons contracting

with the master, as shippers of cargo, or to outside parties, injured

by negligent navigation, except, perhaps, as to the former, who may

be ignorant of the terms of the charter-party, and who contract with

the master, believing him to be the servant of the owners. The

test of liability of the owner in such cases is, whether the master

and crew were his servants or not, (Fenton v. City of Dublin Steam

Packet Co., 8 Ad. & Ellis, 835. For a very full and careful state

ment of this doctrine, and the authorities, see Abbott on Shipping,

12th ed., pp. 57-70.)

And yet in all such cases the ship is liable for. negligent naviga-

tion in the admiralty in rem. (The Ticonderoga, Swabey, 215; the

Tasmania, 13 P. Div., 110; the Lewington, 2 Asp. M. L. Cas. (N.S),

475.) And the only limitation of this liability in rem which these

cases suggest, is that the liability of the ship in rem ceases where

she is navigated, and the injury is done by some oue not deriving

his authority to navigate her from the owners; that is, if a ship's

sent to sea without the owner’s consent, or tortiously, she may not

be bound in rem.

The analogy of the non-liability of the owners of a ship under

eharter, and therefore out of control of the owners, and navigated,

not by their servants, but by the servants of other persons, certainly

supports strongly the defense in this case.

Since the case of Bussy v. Donaldson the true ground and limit

of the liability of the master or principal for the negligence of the

servant or agent has been very carefully considered, both in England

and in this country, and unless an exception is made with regard

to a vessel, and the owners of vessels, the case of Bussy v. Donaldsov

is out of harmony with the law of master aud servant and principal

and agent as now held.

33 The argument of convenience with regard to the remedy

is indeed made a reason for this exceptional liability in the

ease of Williamson v. Price, 4 Martin (N. C.), 399.

I think both in that case and in the case of Bussy v. Donaldson

the court assumed that the pilotage was compulsory. The Louisiana

case is decided largely upon the authority of Bussy v. Donaldson

and the case of the Neptune (1 Dods., 467); which latter case was

afterwards overruled.

The court refers to the case of Fletcher v. Braddick (5 B. &P,

182) us sustaining the rule. That was a case of a vessel chartered

LA COMPAGNIE GENERALE TRANSATLANTIQUE, 19

by the defendant to the Government, and having on board a naval

officer who had, in general, the command of the ship, but the mas-

ter and crew were appointed by the owner. It seems, however, that

that ease is rather an authority against the liability in case of com-

lsory pilotage, because the damage being caused by fault of navi-

gation, the owner was held liable, but the court intimated that if it

had been caused by the fault of the naval officer he might not be

liable.

The argument of convenience is thus stated by the supreme

court of Louisiana: “It seems hard, on the one side, that, while

“necessity and in many places the law, compel to place a vessel

“ander the absolute command of a pilot, his misconduct should

“gabject to damages the owner of the ship on whom he is, it may

“be said, forced. But, on the other haad, pilots are very seldom

“persons able to compensate the owner of a vessel run foul of. The’

“owner of a vessel by whom the damage is done, receiving the

“benefit of the voyage, it hae been judged he should indemnify

“persons injured by his vessel while employed for his benefit.”

This argument from convenience, as a reason for holding the

owner liable, is stated by the court in the case of the China

34. thus: “ The maxim of the civil law, sic utere tuo ut nonlaedas

“ qlienum, may, however, be fitly applied in such cases as the

“one before us. The remedy of the damaged vessel, if confined to

“the culpable pilot, would frequently be a mere delusion. He

“would often be unable to respond by payment, especially if the

“amount recovered were large. Thus, where tie injury was the

“ greatest, there would be tie greatest danger of a failure of justice.”

The same reason is stated by Parker, Ch. J., in the case of Yates

v. Brown, 8 Pick., 22. But that was not a case of compulsory pi-

lotage.

The argument from convenience or a desire to secure to the party

injured a remedy against the person who can respond in damages—

which it is assumed a pilot ordinarily cannot do—may have had its

legitimate influence in establishing the rule of maritime law mak-

ing the vessel liable for all torts committed by her, at least where

she is navizated with the consent of or under authority derived

from the owaers. She goes from port to port, and if she were not

herself held responsible in the maritime courts of the world for her

torts, persons injured thereby would, for the most part, be remedi-

less; and this may have been the reason for the rule making her

liable~-a rule of so great antiquity that the time and manner of its

origin are lost in the past, but so wholesome that it stands undis-

turbed to this day wherever the maritime law is administered. It

is uot necessary to inquire whether the decision in the case of tne

China was a correct application of this principle according to the

general maritime law. It must be assumed that that decision is at

present the established law of our courts of admiralty so far as re-

lates to the liability of the vessel in rem. But such an argument,

from convenience, has no place in determining the question of a

cominon-law liability of the owner which rests upon rules of law

governing the responsibility of the master for the acts of the serv-

20 THE HOMER KAMSDELL TRANSPORTATION CO. Ys.

ant or the principal for the acts of the agent. That the

35 liability in personam of the owner does stand upon this prin.

ciple in this country as well as in England appears by the

ease of Sturgis v. Boyer, 24 How., 123,in which it was held that

vessel employing a tug to move her from place to place is not liable

for the fault or negligence of the master and crew of the tug who

are employed by the owners of the tug. Mr. Justice Clifford there

savs: “ Unless the owner and the person or persons in charge of the

“ vessel in some way sustain toward each other the relation of priv.

“ cipal and agent, the injured party cannot have his remedy against

“ the colliding vessel. By employing a tug to transport their y° sel

“from one point to another, the owners of the tow do uot necessa-

“rily constitute the master and crew of the tug their agents in per

“ forming the service. They neither appoint the master of the tug

“ or ship the crew, nor can they displace either the one or the other,

“ Their contract for the service, even though it was negotiated with

* the master, is, in legal contemplation, made with the owners of the

“ vessel, and the master of the tug, notwithstanding the contraet

“ was negotiated with him, continues to be the agent of the owners

“of his own vessel, and they are responsible for bis acts in her

“ navigatica.”

In that case the court follows and approves the case of Sproul ¢.

Hemmingway (14 Pick., 1), in which Ch. J. Shaw discusses the

question at considerable length on the ground of liability of the

owner of a vessel at common law for the negligence of the master

and crew of a tug employed to tow her, and the liability was de

nied on the ground that the master and crew who were guilty of

negligence were not the servants of the owner of the ship.

While the English courts have reached a different conclusion

from the Supreme Court as to the liability of the tow and her owner

for the negligence of those in charge of the tug, yet it is upon

grounds which do not conflict with the principle of the liability of

the master for the acts of a servant; that difference is carefully

pointed out by Judge Lowell in the case of the Belknap, 2 Low,

281.

The English courts have taken a different view of the relation

between the owner of the ship and those managing the tug;

36 the latter are held to be the servants of the former. The

owrer of the vessel is held responsible as a master for the

acts of his servant under the doctrine of respondeat superior. (The

Belknap, 2 Lowell, 281.)

It is not pertinent to the present inquiry whether in Sturgist.

Boyer, which was a suit in rem, it was rightfully assumed by the

court that the vessel was not liable if the owners would not be liable

in personam, or whether that case can be reconciled with the later

case of the China, in respect to the liability of the vessel.

The case of the Creole (2 Wall., Jr., 485) was a libel in rem

against the vessel in admiralty. So also was the case of the bark

Lotty, Ole., 329.

The other American cases cited in support of the liability of the

defendant are clearly distinguishable. ,

LA COMPAGNIE GENERALK TRANSATLANTIQUE, 21

The ease of the Julia M. Halleck (1 Sprague, 539) does not appear

to be a case of compulsory pilotage.

The Massachusetts pilot law, while requiring a vessel refusing a

pilot to pay pilotage fees, is not regarded as making pilotage com-

pulsory. vee ’

The Carolus, 2 Curtis, 68.

The Marcellus, 1 Clif., 481.

The case of Snell v. Rich (1 John., 305) involved the question of

the liability of the master while a pilot was on board. As stated

in the ease of the China, the liability of the master does not depend

upon the rules of the common law, but the rules and usages of the

maritime law.

It is evident, from the opinion of Mr. Justice Curtis, in the case

of the Carolus, ué supra, that if the piletage had been compulsory

he would have held the owner not liable, and although this dictum

is disapproved by Mr. Justice Clifford in the case of the Marcellus

(1 Clif, 492), it would seem to be well founded both on reason and

authority.

The case of Yates v. Brown, ut supra, indeed, states the general

proposition that the owners of a vessel which, by collision with an-

other vessel, has caused damage through the fault or negli-

37 gence of any one on board, is answerable to the injured party

in respect of their property, notwithstanding there may bea

pilot on board who has entire control and management of the ves-

sel. It is put upon the ground of convenience. It is doubtful if in

that case the pilotage was understood by the court to be compul-

sory.

Iu the other Massachusetts cases the pilotage has been held not

compulsory. Of course, if the owner uccepts a pilot not by compul-

sion of law, but voluntarily, no distinetion can be made between

the negligent acts of such a pilot and a master appointed by the

owner; but it appears to be true of the case last cited, as of many

others in which the doctrine of a more convenient and satisfactory

remedy for the injured party is urged, that the court adopted and

applied to the question of the liability of the owner, consciously or

unconsciously, the principle of the maritime law which imposes a

liability upon the vessel, which principle is not strictly or properly

applicable where the ease has to be determived purely upon the

principles of the common law. The liability of the owner in per-

sonam by the maritime law has been said to be the same as al com-

mon law. The Germania, 9 Ben., 306. And I find no eases incon-

sistent with this dictum. It is certainly most unjust to give a remedy

agaiust a party who is not legally responsible, because the injured

cy, may have an inadequate remedy against the party who is

egally liable. And with the utmost respect for the courts which

have put the liability of the owners on the argument of conveni-

ence, am uuable to follow them, or to attribute to this cireum-

stance the effect of making a distinction between vessels and other

chattels as respects the liability of the owners for negligence in their

use. I thiuk the common law makes no such distinction.

22 THK HOMER RAMSDELL TRANSPORTATION CO. Vs.

The case of Denison v. Seymour (9 Wend., 1) was the case of q

vessel in charge of a pilot appointed by the owners, and the question

before the court related to the liability of the master in such case.

It has no bearing upon the question involved in the present case,

While, therefore, it must*be admitted that there is some

38 authority, and many dicta in favor of holding the owner of

a vessel liable for the negligence of a pilot compulsorily im-

posed upon the vessel, I have come to the conelusion that, both upon

reason and authority, the rule is otherwise, and that, therefore, the

defendant in this case is entitled to jadgmeut.

The objection that this pier was the property of the city, and that

the city is but a part.of the government of the State, and that it was

the agent of the State whose negligent act caused the injury, has no

merit as a ground for refusing, relief in damages. The argument

seems to be that the property destroyed was not the property of the

plaintiff, but the property of the State. The action, however, is for

the injury to the private and individual interest of the plaintiff in

this property, the fee of which belongs to the public. By obtaining

a lease from the city, the plaintiff acquired an interest, which is en-

tireiy independent of the property of the State, and by the terms of

the lease the plaintiff was cial obligation to repair the pier, and

both upou the ground of this obligation, whereby the plaintiff has

been injured, and also upon the ground of the plaintiff's special in-

terest in the pier, which is quite independent of that of the State

or the city, which special interest has been damaged by the act of

the pilot, it would be no obstacle in my opinion to the plaintiff's re-

covering the damage, if otherwise entitled, that the ..« in the land

is vested in the city as one of the departments of the State govern-

ment.

So also the defence set up in the answer that the Harter act, so

called (27 St. Ch., 105, p. 445), relieves vessels from all liability for

the negligent act of the master and crew, if the vessel is properly

manned and equipped for the voyage, cannot be pa That

act is limited to the regulation of the liability of the vessel, her

owners and master to the shipper and has no application to torts

committed against other persons, or their property, nor doits

39 provisions seem to be retroactive. This tort was committed

before the passage of the act.

The amount of the damages may, however, be properly deter-

mined upon this reference in order that judgment for the proper

amount may be finally entered, if the court should hold the plaiv-

tiff entitled to recover.

It is proved, that the cost of repairing the plaintiff’s pier was

$13,153.34. Of this amount $5,460 was paid by the plaintiff on the

15th February, 1893, and the balance on the 15th March, 1893;

and interest is to be allowed on those payments from the said

dates respectively.

It is also proved that the plaintiff lost the opportunity to rent out

a part of the pier in consequence of the damzge, for a period of

three months. There was a demand for such property, and the |

plaintiff could have obtained for it, during the period it was thus ,

LA COMPAGNIK GENERALE TRANSATLANTIQUE. 23

deprived of its use, $2,250; and I think the plaintiff would be en-

titled to recover this sum, in addition to its actual expenses, with

interest from the 15th day of March, 1893, if it were entitled to a

judgment.

But for the reason given above the defendant is entitled to judg-

ment with costs.

N. Y., May 28th, 1894.

WM. G. CHOATE.

Case settled as printed and ordered on tite.

February 25, 1896.

WM. G. CHOATE, Referee.

40 U. 8. Cireuit Court, Southern District of New York.

against

Tue Homer Ramspett TRANSPORTATION COMPANY, we

La ComPAGNIE GENERALE TRANSATLANTIQUE, Defendant.

This action having been referred by an order entered herein on

the 16th day of October, 1893, to William G. Choate, Esq., to hear

and determine all the issues herein, and after trial had on due no-

tice te all parties, the said referee having on the 14th day of

41 June, 1894, duly made and filed his report herein, stating his

findings of fact and conclusion of law thereon, and directing

judgment dismissing the the complaint herein upon the merits, with

costs to the defendant to be taxed, and the plaintiff having filed ex-

ceptions to the referee’s report and an order having been made

overruling the same and confirming said report, and the defend-

ant’s costs having been duly adjusted at the sum of seven hundred

and twenty-nine and ,°5, dollars ($729.65) ;

Now, on motion of Joues & Govin, attorneys for the defendant,

it is

Ordered, that the plaintiff’s complaint be and the same is hereby

dismissed, and that the defendant recover of the plaintiff the sum

ofseven hundred and twenty-nine and ,°, dollars costs of this

action.

Judgment signed this 14th day of April, A. D. 1898.

(S’d) JOHN A. SHIELDS, Clerk.

(Endorsed:) Cireuit court of the United States for the southern

district of New York. The Homer Ramsdell Transportation Co. vs.

La Compagnie Generale Transatlantique. Judgment-roll. U. S.

atm court. Filed Apr. 14, 1898, 2.09 p.m. John A. Shields,

clerk.

42 Unitep States oF AMERICA, bss

Second Circuit, ,

I, William Parkin, clerk of the United States circuit court of ap-

peals for the second cireuit—

Do hereby certify that the foregoing certificate in the case entitled

24 H. R. T. CO. VS. LA COMPAGNIE GENERALE TRANSATLANTIQUE, 7

Homer Ramsdell Transportation Company against La Compag

Generale Transatlantique was duly filed and entered of record

my office by order of said court on the 6th day of December, 18

and, as directed by said court, the said certificate is by me forwar¢

to the Supreme Court of the United States for its action thereon, —

In testimony whereof I have hereun

Seal United States Cir- subscribed my name and affixed the seg

cuit Court of Appeals, of the said United States circuit court of |

Second Circuit. appeals for the second circuit, at the eity

of New York, in the southern district ¢

New York, in the State of New York, this 7th day of December, in.

the year of our Lord one thousand eight hundred and ninety-ning |

WM. PARKIN,

Clerk of the United States Circuit Court of Appeals

for the Second Circuit,

43 [Endorsed :] U. S. cireuit court of appeals, 2nd cireu

Homer Ramsdell Transportation Co. vs. La Compagnie Gem

erale Transat'antique. Proposed certificate to Supreme Court, wi

notice of settlement. Jones & Govin, att’ys for def’t in error, 45 ~

Cedar street, New York. Service of a copy of the within-proposed

certificate & notice of settlement admitted this 23rd day of N

vember, 1899. E. L. Fancher, att’ys for pl’ff inerror. United Sta

circuit court of appeals, second circuit. Filed Dec. 6, 1899. W:

liam Parkin, clerk. a

[Endorsed :] 23.80. United States circuit conrt of appeals, see 7

ond circuit. Homer Ramsdell v. La Compagnie Generale Trang

atlantique. Certificate.

Endorsed on cover: File No., 17,584. U.S. C..C. of appeals, 2a

circuit. Term No., 166. The Homer Ramsdell Transportation

Company, plaintiff in error, vs. La Compaguie Generale Transatla

tique. (Certificate.) Filed December 14th, 1899.