Plaintiffs Brief — Homer Ramsdell Co. v. Comp. Gen. Trans.

FOL LE

| Supreme Court of the United States.

OCTOBER TERM, 1900.

No. 166.

Tue Homer RamMsDELL TRANSPORTA-

TION COMPANY,

Plaintiff in Error,

vs.

La CoMPAGNIE GENERALE

TRANSATLANTIQUE.

ARGUMENT FOR PLAINTIFF IN

ERROR.

Statement of the Case.

The case comes to this Court ona certificate from

the United States Circuit Court of Appeals for the

Second Circuit.

The action was brought originally in the Supreme

Court of the State of New York and removed to the

United States Circuit Court for the Southern District

of New York. On consent of the parties it was re-

ferred to the Hon. William G. Choate to hear and

determine the issues, pursuant to the rule of the Cir-

cuit Court, which is as follows :

« Fepruary 57H, 1877.

“Tn actions at law a consent to a reference of

the whole issue must likewise contain a provision

that judgment shall not be entered until after ten

2

days’ notice of the filing of the report of the

Referee, and of the judgment proposed to be en-

tered thereon. After a reference, at any time

before the entry of judgment, either party may

move for a new trial upon a case or exceptions,

and, if such motion be denied, the decision of the

motion and the questions involved in it may be

entered on the record as if it had been a ruling

made upon a trial by the Judge without a jury,

and excepted to in like manner. When a motion

for a new trial is intended to be made the Court

may extend the time for entering judgment upon

the application of the moving party, and may stay

all other proceedings until the decision of the

motion.”

The case was tried before the Referee, who made

his report in writing (fols. 16-21), and plaintiff's ex-

ceptions having been overruled and the report con-

firmed, judgment was entered against plaintiff dismiss-

ing the complaint with costs (fols. 40,41). On writ of

error to the Circuit Court the case was taken to the

Circuit Court of Appeals for the Second Circuit, and

two questions are certified to this Court under the pro-

visions of Section 6 of the Act of March 3, 1891, estab-

lishing Circuit Courts of Appeal.

The action was brought to recover for damages to

plaintiff's pier by the steamer La Bretagne, which col-

lided with the pier on her outward voyage. The facts

are sufficiently stated in the certificate from the United

States Circuit Court of Appeals—the other findings of

the Referee covering matters not in discussion before

this Court. The statement of facts is as follows (fols.

2, 3):

“ The defendant in error is a foreign corpora-

tion, owning and plying a regular line of steamers

between Havre and New York. On the morning

of December 10th, 1892, one of the defendant's

3

steamers, Za Bretagne, while outward bound from

the port of New York to Havre, by way of Sandy

Hook, with cargo and passengers, struck the

plaintiff's pier, damaging it to the amount of up-

wards of thirteen thousand (13,000) dollars. The

said vessel at the time she left her pier was in all

respects seaworthy and properly 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 pur-

suant 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 mas-

ter, officers and crew of said steamship. ‘The said

collision and the damage resulting therefrom 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 steam-

ship.”

The questions certified are as follows (fols. 3, 4):

First. Whether the provisions of Chapter 467 of

ths laws of New York passed June 28, 1853, as

amended by Chapter 196 of the laws of said State

passed April 11, 1854; Chapter 243 of the laws of the

said State passed April 3d, 1857; Chapter 930 of the

laws of the said State passed May 16, 1867, and Chap-

ter 548 of the laws of said State passed May 2, 1870,

and consolidated into Sections 2093 to 2123, inclusive,

of Chapter 410 of the laws of said State passed J uly

1, 1882, impose compulsory pilotage on foreign vessels

inward and outward bound to and from the port of

New York by way of Sandy Hook, in view of the de-

cisions of the New York Court of Appeals.

Seconp. Whether in an action at common law the

shipowner is liable for injuries inflicted exclusively by

1

negligence of a pilot accepted by a vessel compul-

sorily.

The only sections of the pilotage laws referred to,

which affect the questions under discussion are Sec-

tions 2100, 2119 and 2120, as follows :

“ Sec. 2100. The said commissioners shall have

the power to regulate the stationing of pilot boats

for the purpose of receiving pilots from outward-

bound vessels, may alter or amend any existing

regulations of pilots, and make and duly promul-

gate and enforce new rules or regulations, not in-

consistent with the laws of this state, or of the

United States, which shall be binding and effect-

ual upon all pilots licensed by them, and upon all

parties employing such pilots. They may declare

and enforce forfeitures of pilotage upon any mis-

management or neglect of duty by the pilots

licensed by them; they may declare and impose

and collect fines and penalties not exceeding

Two hundred and fifty dollars for each offense, tv

prevent any of the pilots licensed by them from

combining injuriously with each other, or with

other persons, and to prevent any person licensed

by them from acting as a pilot during his suspen-

sion, or after his license may be revoked ; and the

said commissioners may establish and enforce all

other needful rules and regulations for the conduct

and government of the pilots licensed by them,

and the parties employing them ; and they may

enforce and receive accounts of all moneys col-

lected for pilotage by the pilots licensed by them,

and may impose and collect from such pilot a

sum not exceeding three percent. on the amount

thereof, to defray their necessary expenses, includ-

ing clerk hire and office rent. Any pilot bring-

ing ina vessel from sea shall, by himself or one

of his boat's company, he entitled to pilot her to sea

when she next leaves the port, unless, in the mean-

5

time, a complaint for misconduct or incapacity shall

have been made against such pilot or one of his

boat's company, and proved before the Board of

Commissioners of pilots ; provided, however, that

if the owner of any vessel shall desire to change

such pilot, then the said commissioners may assign

any other pilot on the same pilot boat to pilot said

vessel to sea.”

“ Sec, 2119. * * * All masters of foreign vessels

and vetsels from a foreign port, and all vessels sail-

ing under register, bound to or from the port of

New York by the way of Sandy Hook, shall take

a licensed pilot, or in case of refusal to take such

pilot, shall himself, owners or consignees, pay the

said pilotage as if one had been ewployed ; and

such pilotage shall be paid to the pilot first speak-

ing or offering his services as pilot to such vessel.

Any person not holding a license as pilot under

this title, or under the laws of the State of New

Jersey, who shall pilot, or offer to pilot, any ship

or vessel to or from the port of New York by the

way of Sandy Hook, except such as are exempt by

virtue of this title, or any master or person on

board a steamtug or towboat, who shall tow such

vessel or vessels, shall be deemed guilty of a mis-

demeanor, and, on conviction, shall be punished

bya fine not exceeding one hundred dollars or

imprisonment not exceeding sixty days; and all

persons employing a person to act of pilot, not

holding a license under this title, or under the laws

of the State of New Jersey, shall forfeit and pay

to the board of commissioners of pilots the sum of

one hundred dollars.”

“ Sgo, 2120. Any person not holding a license as

pilot under this title, or under the laws of the

State of New Jersey, who shall pilot or offer to

pilot any ship or vessel, not embraced in the pre-

ceding section, to or from the port of New York,

by the way of Sandy Hook, shall be deemed

6

guilty of a misdemeanor, and, on conviction, shall

be punished by a fine not exceeding one hundred

dollars or imprisonment not exceeding sixty days;

and all persons employing a person to act as pilot

not holding a license under this title, or under the —

laws of the State of New Jersey, shall forfeit and

pay to the Board of Commissioners of Pilots the

sum of one hundred dollars.”

FIRST POINT.

The pilotage law applicable to New York

harbor is not compulsory. For the out-

ward voyage, at all events, there is no

compulsory pilotage; no law interferes

with the free choice by the master of any

pilot licensed either under the laws of New

York or those of New Jersey.

In defining compulsory pilotage there has been some

diversity of opinion, but both the English Courts and

this Court have agreed that statutes or rulings exempt-

ing owners from liability for the acts of pilots should

be strictly construed. The definition was discussed by

this Court in the following cases :

The China, 7 Wall. (174 U. 8.), 53.

The Merrimac, 14 Wall. (81 U. S.), 199.

Sherlock vs. Alling, 3 Otto (93 U.8.), 99.

In the case of Zhe China, the majority of the Court

agreed in the opinion of Mr. Justice Swayne that,

where the master was liable to pay pilotage in case of

refusal to take a pilot, pilotage was compulsory. It

was there assumed that the New York Pilot Law re-

quired the employment of the pilot first offering his

7

services. From this view Mr. Justice CuirrorD and

Mr. Justice Freip dissented.

In the later case of the Merrimac, the following

language was used by Mr. Justice CLIFFORD in an opin-

ion which was concurred in by the whole Court :

“ State pilot laws, which compel the owners of

vessels to pay half pilotage in cases where the

pilot offers his services and they are refused—

where the law is not enforced by any penalty—are

not regarded as compulsory, and, therefore, the

fact that the vessel was in charge of a pilot under

such a law at the time of the collision is no de-

fense to a libel for damages, if it appears that the

collision was occasioned by negligence or unskill-

ful navigation ( Zhe Marcellus, 1 Cliff., 490). Port

regulations are supposed to be known to the ship-

owner before he sends his vessel on the voyage,

and the general rule is that in sending her to any

particular port he elects to submit to the lawful

regulations established at that port, and that the

vessel, in case she unlawfully collides with another

vessel engaged in lawful commerce, shall be re-

sponsible ( Zhe Carolus, 2 Curt. 69). Where the

law is not enforced by any penalty it is not re-

garded as compulsory, and, if not compulsory, the

defense that the ship was in charge of a pilot is

not a valid defense, whrich is all that need be said

upon the subject (Martin vs. -Hilton, 9 Met.,

371 ; Hunt vs. Carlisle, 1 Gray, 257 ).”

In the case of Sherlock vs. Alling, more fully referred

to hereafter, the rule is adopted that, where the master

has the selection from among a class of licensed pilots,

the law requiring the employment is not compulsory

pilotage.

This rule is thus stated by the learned Referee in

his opinion (fol. 27) :

8

“ If the shipowner were at liberty to select a

pilot out of a class of pilots licensed by the State, it

could not be held that the shipowner was com-

pelled to take the particular pilot employed.”

The learned Referee has construed the effect of the

New York pilot law in the following words (fols. 26,

27) :

“ There is no doubt in this case that the law of

New York compels the ship to employ a pilot

appointed by tke State.

“ By the New York Pilot law a foreign ship,

when inward bound, is obliged to take the first pilot

that offers his services. While the masters of

certain vessels may be licensed to pilot their own

vessels, it is provided in the statute that all vessels

from foreign ports shall take a licensed pilot, or,

in case of refusal, pay full pilotage; and it is

further provided that any person not holding a

license who pilots a vessel in or out of the harbor

of New York shall be held guilty of a misde-

meanor, and any one employing a person not

holding a license to pilot a vessel shall forfeit and

pay the sum of $100.

“ 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’s company to

take her out unless he has been complained of for

misconduct ; subject, however, to the right of the

shipowner to object to this particular pilot, in

which case the commissioners of pilots shall as-

sign another pilot from the same boat’s company

to take the ship out.”

3 Rev. Stat. (7th Ed.), pp. 2017, 2019, 2020.

“Tf the shipowner were at liberty to select a

, + out of a class of pilots licensed by the State,

it could not be held that the shipowner was com-

pelled to take the particular pilot employed. But

9

the right to object to one particular pilot certainly

does not make the appointment of another selected

by the commissioners from the same boat's crew a

voluntary appointment by the owner of the vessel

of such substituted pilot.

“In the case of Zhe 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 full 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.”

[have been unable to find any provision of law

expressly making it a misdemeanor for the master to

refuse to take a pilot. It is a misdemeanor for a

master of a tug to tow a vessel without having a pilot's

license, and it is also a misdemeanor for a person not

holding a license to act or offer to act as a pilot. It

is not, however, made a misdemeanor for a master to

pilot his own vessel without having such license. It

is provided by Section 2119 that the master refusing

to take a pilot shall pay the pilotage as if one had

been employed, and that all persons employing @

person to act as pilot not holding a license under this

title or under the laws of the State of New Jersey,

shall forfeit and pay to the Commissioners the sum of

one hundred dollars. It is only one who pilots, or

offers to pilot or tows a ship, who shall be guilty of a

misdemeanor.

The statute expressly enumerates the cases in which

a master is liable, but does not include piloting his

own vessel. It is evident that a master is not

intended to be included in the general description

of one “ who pilots or offers to pilot a ship.” Such a

reading would violate the rule for strict construction

of penal statutes.

10

So far as the New York statute imposes a penalty

for violation of its provisions, it is construed strictly.

Sturgis vs. Spofford, 45 N. Y., 446.

This view was apparently urged on the attention of

the Court in the case of the China, but was not passed

upon, as it was not deemed necessary for the decision

of the case, the Court apparently assuming like the

learned Referee, that it was obligatory to take the first

pilot who offered his services.

“Tt was contended by the counsel for the

appellee that if the master had chosen to proceed

without a pilot he would have been liable only

to the payment of pilotage; and that none of the

other penal provisions of the statute, according

to its trae meaning applied in such a case. We

have not found it necessary to examine this

subject. Giving to the statute either construction, —

it seems to us clear, in the light of both reason

and authority, that the pilot was taken by the

steamship upon compulsion” ( The China, supra).

The less drastic construction referred to in these

words is the liability to pay the first pilot who offered

his services the amount of his pilotage in case of re-

fusal to accept Ais services, thus depriving the master

or owner of the freedom of choice, which is one of the

elements in determining the relation of principal and

agent.

Since the decision of this Court in the case of The

China, the New York pilot law has been examined by

the Court of Appeals of the State, and that Court has

given a construction to it different from that of the

learned Referee, and differing from that of this Court,

in so far as the latter assumed that the law required

the employment of the first pilot under penalty of

paying pilotage fees to him, thus giving the master no

right of selection from the class.

11

In the construction of statutes of a State this Court

will follow the decisivns of the highest Court of the

State, and will “only form an independant judgment

as to the meaning of the state law where there was no

binding construction of such state statute by the court

of last resort of the state.”

Sioua City Term. R. R. & Warehouse Co.

vs. Trust Co. of No. Amer., 173 U. S., 99.

Missouri, Kans. & Tex. Ry. Co. vs. McCann,

174 U. S., 580. ;

“Jf there be any inconsistency in the opinions of

these courts, the general rule is that we follow the

latest settled adjudications in preference to the

earlier ones.” Even where this Court has followed the

construction of the State statute given by the highest

Court of that State, and such earlier construction has

been overruled by the State Court, this Court will fol-

low “ the later case, although it had previously adopted

the rule laid down in .ne overruled cases.”

Wade vs. Travis Co., 174 U. 8., 499, 508.

The case of Zhe China was decided in 1868, and in

1875 the statute was construed by the New York Court

of Appeals, in Brown vs. Elwell, 60 N. Y., p. 249, and

Gillespie vs. Zittlosen, 60 N. Y., p. 449.

In Brown vs. Elwell it was held that the Act of

Congress of March 2, 1837, providing that the master

of any vessel coming into or going out of any port sit-

uate upon waters which are the boundary between any

two States may employ any pilot licensed or author-

ized by the law of either, must be read in connection

with the New York pilot law, so that in all cases in the

latter statute where the words “licensed pilot” are

employed they must be held to mean a pilot licensed

either under the laws of New Jersey or those of New

York. The present statute follows this decision in its

provisions.

Gillespie vs. Zittlosen was an action brought by a

pilot who first spoke and offered his services to the

12

master of a brig sailing from a foreign port to the port

of New York. The master refused to accept his serv-

ices as pilot, but subseqnently took another licensed

pilot who piloted the brig into port. In the opinion

written by Chief Justice Cuuron it is said :

“The penalty or liability is imposed for not

taking any pilot. It is only when no pilot is

taken that pilotage must be paid as if one had

been employed, and in that case only; that is

when no pilot is taken the pilotage must be paid

to the pilot first speaking.

“There is no provision requiring a vessel to

take the first pilot or to pay pilotage to him if he

is not taken. If the pilotage, in case of refusal or

neglect to take any pilot, had been payable to the

commissioners of pilots, no question could have

been raised ; but the condition of liability is not

affected by requiring it to be paid to the first pilot

speaking. No other construction can properly be

given to the language of this Act and we have no

alternative but to give it effect. * * *

“The right of recovery by the first pilot in case

of refusal to take any pilot, together with the

chance of being employed, is an inducement to be

vigilant, and it may have been deemed proper /o

give the vessel some discretion in the selection of

pilots as well as the place where one should be

taken.

“T am unable to see that the provisions of the

Act are unwise or unjust. If it was designed to

compel a vessel to take the first pilot, the Legisla-

ture would have said so. Courts have no right to

change the plain terms of a statute.”

Gillespie vs. Zittlosen, 60 N. Y., p. 449.

There is even greater liberty in the choice of a pilot

for an outgoing vessel. Of an incoming vessel it may

be said that the refusal of the first pilot offering his

13

services might occasion delay, and the master would

incur the risk of not meeting any pilot and of encoun-

tering bad weather while waiting for one. While this

would be equally true in all cases where the selection

from a class of pilots was left wholly to the master,

even these considerations would not affect the choice

of a pilot for the outward voyage.

The learned Referee was of the opinion that this

freedom of choice was abridged by Section 2100. We

have already seen, however, that it is authoritatively

decided that the Pilot Law will be strictly construed,

and that a direction in a statute not enforced by pen-

alty does not constitute compulsory pilotage. There

being no penalty expressly provided for the violation

of this direction (that the “ pilot bringing a vessel from

sea shall * * * be entitled to pilot her to sea

when she next leaves the port ”), the refusal to employ

would be punished only under § 2119, which, as has

been shown, does not interfere with the freedom of

choice.

A closer examination of the particular section will, I

think, make it clear that it was not intended to inter-

fere with the choice of pilots by a master, but was a

wholesome regulation of the conduct of pilots among

themselves. It was to prevent them from combining

to obtain employment, and, possibly. to relieve masters

from importunity and annoyance. The section referred

to is entirely taken up with the government and control

of pilots by the Commissioners, and is not intended to

define their rights or duties in relation to the employ-

ers. The section is here reprinted :

“Spc, 2100. The said Commissioners shall have

the power to regulate the stationing ef pilot boats

for the purpose of receiving pilots from outward-

bound vessels, may alter or amend any existing

regulations of pilots, and make and duly promul-

gate and enforce new rules or regulations, not in-

consistent with the laws of this state, or of the

14

United States, which shall be binding and effect-

ual upon all pilots licensed by them, and upon all

parties employing such pilots. They may declare

and enforce forfeitures of pilotage upon any mis-

management or neglect of duty by the pilots

licensed by them ; they may declare and impose

and collect fines and penalties not exceeding

Two hundred and fifty dollars for each offence, to

prevent any of the pilots licensed by them from

combining injuriously with each other, or with

other persons, and to prevent any person licensed

by them from acting as a pilot during his suspen-

sion, or after his license may be revoked ; and the

said commissioners may establish and enforce all

other needful rules and regulations for the conduct

and government of the pilots licensed by them,

and the parties employing them; and they may

enforce and receive accounts of all moneys col-

lected for pilotage by the pilots licensed by them,

and may impose and collect from such pilot a sum

not exceeding three per cent. on the amount

thereof, to defray their necessary expenses, includ-

ing clerk hire and office rent. Any pilot bring-

ing in a vessel from sea shall, by himself or one

of his boat's company, be entitled to pilot her to sea

when she next leaves the port, unless, in the mean-

time, a complaint for misconduct or incapacity shall

have been against such pilot or one of his boat's

company, and proved before the Board of Com-

missioners of pilots; provided, however, that

if the owner of any vessel shall desire to change

such pilot, then the said.commissioners may assign

any other pilot on the same pilot boat to pilot said

vessel to sea.”

It is respectfully submitted, therefore, that the pilot

law of New York is not compulsory, for it does not

interfere with the selection by the master of any pilot

from among those licensed by either New York or New

15

Jersey ; and in regard to the outward voyage there is

no penalty for employing @ different pilot from the one

who brought the vessel in, the provision of the law in

that respect being only “ to prevent any of the pilots

licensed by them from combining injuriously with each

other or with other persons.”

SECOND POINT.

A licensed pilot, even where pilotage is

compulsory, is the servant of the owner,

and the owner is liable for the pilot’s negli-

gence. This liability may be enforced as

well by action at common law in personam

as in admiralty in rem.

The learned Referee concedes that the law is well

settled that in Admiralty in rem, the vessel is liable for

the negligent acts of a pilot compulsorily employed.

Indeed, since the case of The China, where the law was

most carefally examined and applied to the pilotage

laws of New York, the question has’ been considered no

longer open to discussion. The Court was unanimous

in this conclusion, although Justices CLIFFORD and

Fieip expressed the opinion that a provision compel-

ling payment of pilotage fees, where a pilot was refused,

did not make the statute one of compulsory pilotage.

Pilotbvat Washington vs. Saluda, U. 8.

Dist. Ct., 8. C., April, 1831.

Story on Bailments, Secs. 399, 400.

The China, 7 Wallace (74 U. 8.), Rep.

. 53.

Allee vs. Norn. Packet Co., 21 Wallace (88

U. 8.), p. 389.

The Neptune, 1 Dodson R., 467.

The Merrimac, 14 Wallace, (81 U. 8.), 199.

Sherlock vs. Alling, 3 Otto (93 U. 8.), 99.

The E.. M. Norton, 15 Fed. Rep., 686.

16

The learned Referee also concedes that the action is

properly brought at common law and that a suit in ad-

miralty would not lie, and cites authority for such

opinion (fol. 27).

He also accepts the dictum (fol. 37) that the liability

of the owner in personam by the maritime law is the

same as at common law.

Conceding all this however, the learned Referee

proceeds (fol. 38) :

“ While, therefore, it must be admitted that

there is some authority, and many dicta in favor

of holding the owner of a vessel liable for the neg-

ligence of a pilot compulsorily imposed upon the

vessel, I have come to the conclusion that, both

upon reason and authority, the rule is otherwise,

and that, therefore, the defendant in this case is

entitled to judgment.”

The same cases cited by the learned Referee were

examined by this Court in Zhe China; the same

reasons were ably argued and pressed upon the atten-

tion of this Court ; the whole matter has been re-

examined and the conclusions reaffirmed by this Court,

and yet he says that, “ with the utmost respect for the

Courts” reaching that conclusion, he is “ unable to

follow them.”

It was strenuously urged both before the Referee

and the Circuit Court of Appeals that there was a dis-

tinction between the maritime law as applied in courts

of Admiralty and the common law as applied in other

courts ; and the learned Referee, while conceding that

the law is settled in the former forum, bases his con-

clusion in the present case on such distinction.

When the law was first examined by this Court the

argument seems to have been urged that courts of Ad-

miralty would not follow common-law precedents in

sustaining the liability of the owner for the pilot’s acts.

On this point Mr. Justice Swayne said :

17

“ The immunity of the wrongdoing vessel when

the pilot is in charge, and alone in fault, is now

well settledin English jurisprudence, both in the

Admiralty Court and in the courts of common law.

The rule must necessarily be the same in both. In

such cases the liability of the ship and of the

owner are convertible terms. The ship is not liable

if the owners are not ; and no responsibility can

attach to the owners if the ship is not liable to

be proceeded against ( The Druid, 1 Wm. Rob.,

399).”

The China, supra.

In the case of the Druid Dr. LusHINGTON expresses

the rule in the following words :

“ In all causes of action which may arise from

circumstances occuring during the ownership of the

person whose ship is proceeded against I appre-

hend that no suit could ever be maintained against

a ship where the owners were not themselves per-

sonally liable, or where their personal liability had

not been given up, as in bottomry bonds, by tak-

ing a lien on the vessel. The liability of the ship

and the responsibility of the owners, in such

cases, are convertible terms. The ship is not

liable if the owners are not responsible, and vice

versa, no responsibility can attach upon the own-

ers if the ship is exempt and not liable to be pro-

ceeded against ” (p. 399).

In the court below it was said by counsel that this

rule had been modified in the case of the Bold bue-

cleugh, 3 Wm. Rob., 220. This was an opinion also by

Dr. Lusutneron, in which he expressly affirmed the

doctrine of the Druid case so far as it applies to the

matter now under discussion, the only question being

whether the ship in the hands of subsequent owners

would remain liable. I have been unable to find any

18

authority questioning the rule that the liability of the

ship and that of the owners at the time of the accident

are convertible terms.

Lord Seiwyn has thus expressed the rule in the case

of the J/alley, Law Rep., 2 P. ©. App., p. 193 :

“ It is admitted that the question must be de-

cided upon the same principles as would be ap-

plicable to an action for damages for the collision

in question if commenced in the Court of Queen’s

Bench or Common Pleas. * * *

“In cases like the present, when damages are

claimed for tortious collisions, a chattel, such as a

ship or carriage, may be, and frequently is, fignra-

tively spoken of as the wrongdoer, but it is ob-

vious that, although redress may sometimes be ob-

tained by means of the seizure and sale of the ship

or carriage, the chattel itself is only the instru-

ment by the improper use of which the injury is

inflicted by the real wrongdoer” (at p. 202).

The leading case in Admiralty in this Court, The

China, was decided on the authority of common law

cases, and the reasoning in both classes of cases is the

same.

Yates vs. Brown, 8 Pick., 23.

Bussy vs. Donaldson, 4 Dall. R., 206.

Fletcher vs. Braddick, 5 Bos. and Pull., 182.

Williamson vs. Price, 15 Martin (Lous.),

399.

Dennison vs. Seymour, 9 Wend., 8, 15.

The Eliza vs. The Decatur, 2 Whart. Dig..

p. 685, Sec. 524; (This case is there re-

ported as decided in the U. 8S. D. C.,

1825, Ms.).

In discussing the effect of compulsory pilotage Mr.

Justice SWAYNE quotes with approval the following

language from Bussy vs. Donaldson :

“ The legislative regulations were not intended to

alter or obliterate the principles of law by which the

19

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, skillful and honest mari-

ners to navigate their vessels safely up the Bay and the

River Delaware. Zhe mere right of choice is indeed

one, but not the only, reason why the law in general

makes the master responsible 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.” Citing with approval Williamson vs.

Price, Yates vs. Brown and Dennison vs. Seymour, re-

ferred to above.

The opinion of Mr. Justice SWAYNE proceeds as fol-

SOWS :

“ In the case of Zhe Creole, decided by Mr. Jus-

tice Grier on the circuit in the year 1853, 2 Wall.,

Jr., 485, the subject underwent a learned and

thorough examination, both by counsel and the

Court. The result was the same as in Bussy vs.

Donaldson. It appears by that case that Mr. Jus-

tice Wayne had ruled the point in the same way in

his circuit. No American adjudication to the con-

trary has been brought to our attention.

“ The question is now, for the first time, pre-

sented in this Court.

“The New York statute creates a system of

pilotage regulations. It does not attempt, in

terms, to give immunity to a wrongdoing vessel.

Such a provision in a State law would present an

important question, which, in this case, it is not

necessary to consider.

“The argument for the appellants proceeds

upon the general legal principle that one shall not

be liable for the tort of another imposed upon him

by the law, and who is, therefore, not his servant

or agent (15 East, 189; 4M. & S.,77; 6B. & C.,

657; Milligan v. Wedge, 12 Adol. & Ell, 737;

Reedie v. Railway Company, 4 Vixch., 244).

20

“ The reasoning by which the application of this

principle to the case before us is attempted to be

maintained is specious rather than solid. It is

necessary that both outward and inward bound

vessels, of the classes designated in the statute,

should have pilots possessing full knowledge of

the pilot grounds over which they are to be con-

ducted. The statute seeks to supply this want,

and to prevent, as far as possible, the evils likely

to follow from ignorance or mistake as to the

qualifications of these to be employed, by provid-

ing a body of trained and skillful seamen, at all

times ready for the service, holding out to them

sufficient inducements to prepare themselves for

the discharge of their duties, and to pursue a busi-

ness attended with so much of peril and hardship.

The services of the pilot are as much for the ben-

efit of the vessel and cargo as those of the captain

and crew. His compensation comes from the

same source as theirs. Like them he serves the

owner and is paid by the owner. If there be any

default on his part, the owner has the same reme-

dies against him as against other delinquents on

board. The difference between his relations and

those of the master is one rather of form than

substance. It is the duty of a master to interfere

in cases of the pilot’s intoxication or manifest in-

capacity, in cases of danger which he does not

forsee, and in all cases of great necessity ( The

Argo 1 Swab., 464; The Christiana, 7 Moore, P.

C., 172). The master has the same power to dis-

place the pilot that he has to remove any subardi-

nate officer of the vessel. He may exercise it or

not, according to his discretion. * * *

“ The maxim of the civil law—sic utere tuo ut

alienum non ledas—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

21

would often be unable to respond by payment—

especially if the amount recovered were large.

Thus, where the injury was the greatest, there

would be the greatest danger of a failure of justice.

* * * All port regulations are compulsory.

The provisions of the Statute of New York are a

part of the series within that category. A damag-

ing vessel is no more excused because she was

compelled to obey one than another. ‘The only

question in all such cases is, was she in fault ?

The appellants were bound to know the law. They

cannot plead ignorance. The law of the place

makes them liable. This ship was brought volun-

tarily within the sphere of its operation and they

cannot complain because it throws the loss upon

them rather than upon the owners of the innocent

vessel. We think the rule which works this result

is a wise and salutary one, and we feel no dis-

position to disturb it.

«“ The steamship is a foreign vessel. We have,

therefore, considered the learned and able argu-

ment of the counsel for the appellants with more

care than we should otherwise have deemed neces-

sary. Maritime jurisprudence is a part of the

law of nations. We have been impressed with

the importance of its right administration in this

case.”

The China, 7 Wall. (74 U. 8.), 53.

It was said by counsel, on the argument in the Court

below, that this Court placed great stress on the judg-

ment of Sir Ropert PxILiimore, in the case of the

Halley, and adopted his reasoning against the other

cases cited, but that the case of the Halley was after-

wards reversed in tie Privy Council. The appeal was

decided in 1868, and I have quoted some extracts from

the opinion of Lord SzLwyn on the appeal. The Privy

Council expressly approves of the statement of the

English law made by Dr. Lushington, but reverses the

22

judgment, holding that the English Courts would not

enforce the liability of the ship owner imposed by the

Belgian law, but would apply the lex fom. The re-

versal of that case did not make any change in the law

of England, and it was the workings of the law there

affirmed of which it was said by this Court, “ these re-

sults furnish little inducement to establish the princi-

ple in our jurisprudence ” ( The China, supra).

Se, too, in Sherlock vs. Alling, 93 U.8., p. 99, more

fully referred to hereafter, this Court in 1876, eight

years after the decision of the //alley on appeal, de-

liberately adopted the reasoning of Sir Ropert Puiu-

MORE based on the natural justice of the doctrine, in

preference to the narrower rule which had become

erystalized in the English statutes ; for it will be re-

membered that the statute gave immunity to the owner

irrespective of any common law right.

The question again came before this Court in 1872,

more than three years after the case of T’he China was

decided and the doctrine was reaffirmed.

The Merrimac, 14 Wall. (81 U. 8.), 199.

Again in 1874 the owner was held liable for the neg-

ligent act of a pilot causing a collision.

Atlee vs. The N. W. Union Packet Com-

pany, 21 Wall. (88 U. S.), 389.

All three of these cases, it is true, were suits in

admiralty, but, as pointed out before, the liability was

sustained because the common-law liability was found

to exist.

The learned Referee seems to have overlooked en-

tirely the case of Sherlock vs. Alling, which was an

action at common law carried to this Court in error to

the Supreme Court of Indiana. It was an action at

common law for causing the death of a passenger

in a collision on the Ohio River, and the defend-

ants interposed the defense that the steamboat was

under the control of pilots compulsorily employed

23

by them under Act of Congress of March 30, 1852.

The case was decided in 1876 and the opinion

was written by Mr. Justice Fretp, who participated in

the decision of Zhe China case, and united with Mr.

Justice CLIFFORD in dissenting on the construction of

the New York statute. The opinion is so comprehen-

sive and luminous that it is here reprinted in full so

far as it deals with this defense.

“In addition to the objection urged to the

statute of Indiana, the defendants also contended

that, as owners of the colliding vessels, they were

exempt from liability to the deceased, as a pas-

senger on one of them, and, of course, to his rep-

resentatives, as the collision was caused, without

any fault of theirs, by the negligence of the pilots ;

and they relied upon the 30th Section of the Act

of Congress of March 30, 1852, to provide for the

better security of the lives of passengers on board

of vessels propelled in whole or in part by steam.

That act was in force when the injuries com-

plained of in this case were committed, and its

principal features have been retained in subse-

quent legislation. The section provided : ‘That

whenever damage is sustained by any passenger

or his baggage from explosion, fire, collision or

other cause, the master and the owner of such

vessel, or either of them, and the vessel, shall be

liable to each and every person so injured to the

full amount of damage, if it happens through any

neglect to comply with the provisions of law

herein prescribed, or through known defects or

imperfections of the steaming apparatus or of

the hull; and any person sustaining loss or in-

jury through the carelessness, negligence or will-

ful misconduct of an engineer or pilot, or their

neglect or refusal to obey the provisions of the

law herein prescribed as to navigating such

steamers, may sue such engineer or pilot and re-

24

cover damages for any such injury caused as afore-

said by any such engineer or pilot’” (10 Stat. at

L., 72).

“Tt was argued that, by this section, Congress

intended the exemption claimed. And confirma-

tion of this view was found in the fact that the

owners were obliged to take a pilot and were re-

stricted in their choice to those licensed by the

Government inspectors. It was supposed that

the relation between owner and pilot, as that of

master and employee, was thus changed, and

that with the change the responsibility of the

former for the negligence of the latter ceased.

The Court, however, proceeded through the trial

upon a different theory of the position of the de-

fendants. It held that, as owners, they were re-

sponsible for the conduct of all the officers and

employees of the vessels, and that it was immate-

rial whether the vessels were or not at the time of

the collision under the exclusive charge of the

pilots. The instruction to the jury, at least, went

to that extent. They in substance declared that

if the collision occurred within the territorial juris-

diction of Indiana, and was caused without fault

of the deceased by the carelessness or misconduct

of the defendants, or any of their agents, servants

or employees, in navigating and managing the

steamers, or either of them, the plaintiff was en-

titled to recover.

“In support of the exemption, the counsel of

the defendants called to our attention an opinion

of the Supreme Court of Kentucky in a similvr

case, arising upon the same collision, where such

exemption was upheld. The opinion is marked

by the usual ability which characterizes the judg-

ments of that Court; but, after much hesitation

and doubt, we have been compelled to dissent

from its conclusions. The statute appears to us

to declare that the owners and master of a steam

25

vessel, and the vessel itself, shall be liable for all

damages sustained by a passenger or his baggage,

from any neglect to comply with the provisions of

the law, no matter where the fault may lie; and

that, in addition to this remedy, any person injured

by the negligence of the pilot or engineer may

have his action directly against those officers.

“ The occasions upon which a pilot or en-

gineer would be able to respond to any con-

siderable amount would be exceptional. The

Statute of England, which exempts the owners

of vessels and the vessels from liability of

faults of pilots, pilotage there being compulsory

and pilots being licensed, has not met with much

commendation from the Admiralty Courts, and

the general tendency of their adjudications has

been to construe the exemption with great strict-

ness. This course of decision is very fully stated

in the exposition of the law made by Mr. Justice

Swayne, in the case of The CUhina,7 Wall., 53

(74 U. S., 67), where this Court declined to

hold that compalsory pilotage relieved the vessel

from liability. In the case of The Halley, L.

R., 2 Adm. and Ecel., 15, decided as recently as

1867, Sir Roper’ PaLiimore strongly questioned

the policy of the statute, and said that it appeared

to him difficult to reconcile the claims of natural

justice with the law which exempted the owner

who had a licensed pilot on board from liability

for the injuries done by the bad navigation of his

yessel to the property of an innocent owner; and

observed that no one acquainted with the work-

ing of the law could be ignorant that it was fruit-

ful in injustice. The doctrine that the owners are

responsible for the acts of their agents and em-

ployees ought not be discarded because the selec-

tion of a pilot by the owner is limited to those who,

by the State, have been found by examination to

possess the requisite knowledge of the difficulties

of local navigation, and the requisite skill to con-

26

duct a vessel through them. ‘As a general rule,’

says Mr. Justice Grimr, in the case of The Creole,

“masters of vessels are not expected to be, and

cannot be, acquainted with the rocks and shoals

on every coast (and, we may add, with the currents

and shoals of every river), nor able to conduct a

vessel safely into every port. Nor can the absent

Owners, or their agent, the master, be supposed

cabable of judging of the capacity of persons offer-

ing to serve as _ pilots. They need a servant but

are not in a situation to test or judge of his qualifi-

cations, and have not, therefore the information

necessary to choice. The pilot laws kindly inter-

fere, and do that for the owneas which they could

not do for themselves’ Smith vs. The Creole and

The Sampson, 2 Wall., Jr., 515. And the learned

Justice observes, that in such cases where a pilot

is required to be taken from those licensed, the re-

lation of master and servant is not changed ; that

the pilot continues the servant of the owners, acting

in their employ, and receiving wages for services

rendered to them, and that the Sact that he is selected

for them by persons more capable of judging of his

qualifications cannot alter the relation.”

“ And in case of The Halley, Sir Roserr Pat.

LIMORE upon this subject says: ‘I do not quite

understand why, because the State insists, on the

one hand, upon all persons who exercise the office

of pilot, within certain districts, being duly edu-

cated for the purpose and having a certificate of

their fitness; and insists, on the other hand, that

the master shall, within these districts, take one

of these persons on board to superintend the

steering of his vessel, the usual relation of owner

and servant is to be entirely at an end; and still

less do I see why the sufferer is to be deprived of

all practical redress for injuries inflicted upon him

by the ship which such a pilot navigates.’

“ By the common law, the owners are responsible

Jor the damages committed by their vesse/, without

27

any reference to the particular agent by whose negli-

gence the injury was committed. By the maritime

law, the vessel, as well as the owners, is liable to

the party injured for damages caused by its torts.

By that law, the vessel is deemed to be an offend-

ing thing, and may be prosecuted, without any ref-

ference to the adjustment of responsibility between

the owners and employees, for the negligence which

resulted in the injury. Any departure from this

liability of the owners of the vessel, except as the

liability of the former may be released by a sur-

render of the vessel, has been found in practice to work

great injustice. The statute ought to be very clear

before we should conclude that any such departure

was intended by Congress. The section we have

cited would not justify such a conclusion. Its

language readily admits of the construction we

have given, and that construction is in harmony

with the purposes of the Act.”

Sherlock vs. Alling, 3 Otto (93 U.S), p. 99.

In the Circuit Court for the Eastern District of

Louisiana, in January, 1883, the question again came

up in admiralty, and these cases were followed as au-

thority.

The act causing the injury was done by the pilot

“ over the objection of the master.” “ For this negli-

gence or want of skill the owner or boat is responsible,

although a licensed pilot was the real delinquent.”

Per Mr. Justice PARDEE.

The E. M. Norton, 15 Fed. Rep., 686.

It is respectfully submitted that the learned Referee

was in error in refusing to follow the rule of law firmly

established by the decisions of this Court, on the

ground that such decisions were binding only in Courts

of Admiralty.

Having found that the plaintiff in error was remedi-

less in Admiralty, the effect of his decision is to relieve

the owner of any liability for the act of a pilot result-

28

ing in the destruction of a pier, although both he and

the vessel would be liable for the same act, resulting

in the destruction of an anchored vessel.

THIRD POINT.

The questions certified by the Circuit

Court of Appeals are reviewable in this

Court.

On the acgument in the Circuit Court of Appeals it

was urged that, “the Referee having found as matter

of fact that the New York Act requires that a pilot in

this case is compulsory, that question is not open to

review in this Court,” and the case of Shipman vs.

Straitsville Central Mining Company (158 U. 5., p.

536) was cited as authority for the proposition.

This action was tried before Hon. William G.

Choate, to whom it had been referred as Referee to

hear and determine by consent of the parties, accord-

ing to the rule of the Circuit Court, and, the excep-

tions filed to his report having been overruled, judg-

ment was directed by the Circuit Court accordingly

(fol. 41). The Referee in his report made findings of

fact with the conclusion of law that defendant was

entitled to judgment dismissing the complaint upon

the merits. The thirteenth finding was as follows

(fol. 31) :

« TuirTEENTH. The said pilot was not appointed

by the owner of said vessel, nor by the master

thereof, but the said owner and master were re-

quired 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.”

29

The sole conclusion of law was that the complaint

should be dismissed, and the plaintiff in error con-

cedes that the facts found by the Referee cannot be

re-examined either in this Court or the Circuit Court

of Appeals, and that the case above cited is conclusive

authority upon that point.

The Cireuit Court of Appeals, however, held that

the construction of the New York statute wae in real-

ity a question of law and not of fact, and that the

conclusion of the Referee as to the effect of the statute

could, therefore, be reviewed in that Court. That

Court has not included the finding of the Referee on

this point in the statement of facts, but has certified

only that the vessel was navigated under direction of a

Sandy Hook pilot, duly licensed under the law of the

State. The same point has been recently passed upon

by this Court in the case of //ouston and Texas Central

Railroad Company vs. State of Texas (1T7 U. S., p. 66),

where the State Court had found that warrants issued

under and by virtue of certain Acts of the Legislature

were issued with the intention to have them circulate

as money. Mr. Justice PeckHaM, writing the opinion

of this Court, said (p. 80) :

“The question whether the Legislature so in-

tended is one to be decided by an inspection of

the act under which they were issued, and possi-

bly by reference to the text of other acts of the

legislature enacted at or about the same time.

Whether an act provides for the issuing of war-

rants that were intended to circulate as money is

in reality a question of law arising upon thé con-

struction of the legislative act; and a finding by

the Court that warrants issued under and by

virtue of certain acts of the legislature were

issued with such intention is in the nature of a

legal conclusion, and not a finding of fact, and

therefore it can be reviewed by this Court.”

30

See, also, Chicago, Milwaukee and St. Paul Railway

Company vs. Clark (178 U. 8., 353) :

This case also was tried before a Referee appointed

under the same rule, and it was held that both in the

Circuit Court of Appeals and in this Court the Ref-

eree’s findings could be examined to ascertain whether

the judgment was supported by the facts found, and

his findings would be construed for that purpose.

So, in the present case, while plaintiff in error may

not question that the pilot was appointed pursuant to

the Statute of the State of New York, the effect of such

appointment is a question of law, not a question of

fact, and the Circuit Court has so construed it in cer-

tifying that question to this Court. That this is the

meaning of the Referee’s finding is abundantly proven

by reference to other parts of the record. The third

and fourth defenses (fols. 13 and 14), use the same ex-

pression, and the learned Referee, in his opinion (fols.

26-27), discusses the effect of the New York statute,

placing his conclusion that the New York Statute

created a system of compulsory pilotage upon the au-

thority of the case of The China (supra), without re-

ferring to the subséquent cases decided by the New

York Court of Appeals.

It is respectfully submitted, therefore, that so far as

the finding of the Referee attempts to construe the

character of the New York Statute it is a legal con-

clusion and not a finding of fact.

FOURTH POINT.

It is respectfully submitted that the first question

certified to this Court should be answered in the nega-

tive, viz.: that the New York laws do not impose com-

pulsory pilotage ; and that the second question should

be answered in the affirmative, establishing the liability

of the owner; and that the case should be remitted

for appropriate action in the Circuit Court of Appeals.

Wituiam H. Harris,

Counsel for Plaintfff in Error.