Thorp v. Hammond

Shipman, D. J. The libellants, owners of the schooner, Brothers, have brough this suit in upersonam against the respondents Samuel S. Hammond, Edmund Hammond, Jacob Smith, Charles Grillett, Bewster Terry, Charles Pim, Alfred Pirn and Hiram Sell, owners of the schooner ‘B. H. Huntley,’ to recover damages suffered by the former in a collision with the latter, off the Jersey shore, in February, 1860. The libel alleges unskillfulness and neglect in the management of the Huntley as the cause of the collision. Samuel S. Hammond the captain of the Huntley, was on board and had charge of her at the time of the collision. He was a part owner. I think it is shown by the proofs, that he had-the exclusive possession and control of the Huntley, and that he manned, victualled and navigated her at his own expense. Such being the case, he must be deemed a charterer within the meaning of the act of congress approved March 3, 1851, which exempts the owners from personal liability and leaves the injured party to seek his remedy against the colliding vessel, and those who carelessly and miskillfully handled her. Samuel S. Hammond her captain is sued merely as a part [319] owner, and not as the charterer, wrong doer, ot active cause of the disaster. His liability is placed by the libel on the same ground as that of the other owners, and the suit must, therefore, stand or fall as to all the respondents. I think, the statute a bar to the suit in this form. B. H. Huntley, for the respondents. In the opening of the argument, took a preliminary objection, that the supreme court has no jurisdiction to entertain [320] this appeal, because' the transcript of the record was not filed in this court at the term next succeeding the appeal. [319] Let a decree be entered accordingly, dismissing the libel, with costs.” From this decision appeal was taken to the circuit court, and was argued in May term, 1866, before Hon. Samuel Nelson, by Mr. R D. Benedict, for the libellants, and by Mr. Huntley for the respondents. The learned circuit judge affirmed the decree below but delivered no opinion. From the decision of the circuit judge appeal was taken to the supreme court of the United States. The petition of appeal from the order of the circuit court affirming the order of the district court in favor of the respondents, was filed in June, 1SG7. Citation thereon was issued on the 19th June, 1867, returnable on the 1st monday of December, 1867, but was not marked filed by the clerk of the supreme court, nor docketed until December, 27th 1869, because a fee bond for the clerk’s costs as required by rule 10 of the supreme court did not accompany the transcript, and there being no name of any counsel of the supreme court on the papers, the clerk could not find out to whom to give notice of the said omission. As soon as he ascertained the counsel’s name, the clerk gave notice to him of the omission to file the said fee bond,, whereupon such counsel caused the clerk’s fee bond to be filed. The cause was not docketed until a subsequent term, but at the time of the argument had been on the calendar over two terms without any motion on the part of the appellee to dismiss. [320] The appeal was taken in June 1867, and the transcript of the record was filed in this court December 27th, 1869. Steamer Virginia agt. Wests, et al., (19 How., 182). In that case it was held, that where appeal is taken to this court the transcript of the record must be filed, and the case docketed at the term next succeeding the appeal Edmonson agt. Bloomshere (7 Wall., 306). “ Here it was held, that if ,it is apparent from the record, that this court has not acquired jurisdiction of a case for want of proper appeal or writ of error, it will be dismissed although neither party ask it, and that an appeal or writ ot error which does not bring to this court a transcript of the record, before the expiration of the term to which it is returnable is no longer a valid appeal or writ,” that if no transcript is filed in this court at the term next succeeding the allowance of the appeal, it has lost its validity. The same was held in the cases (The Lucy, 8 Wall, 307; Villaboles agt. U. S., 6 How., 81; U. S. agt. Curry, 6 How., 106; Mesaagt. U. S., 2 Black, 721; Castro agt. U. S., 3 Wall, 46)., Mr. McMahon, for the libellants. In answer to this objection, argued. A. jurisdiction was acquired by this court by the return, to the clerk of this court of the transcript duly certified within two days after the return day of the citation, and by leaving same with him. (a.) The omission to give him his fee bond for his costs, as required by rule 10, was a mere practice matter. (b.) The appellants gave the regular bond on appeal to stay execution below, but unfortunately from inadvertence neglected to give the clerk’s bond for fees, under rule 10. In Seymour agt. Freer, (5 Wall, 822), it is held, that [321] where, through a mistake or accident no bond or a defective one has been filed, the court will not dismiss the appeal except on. failure to comply with the order to give the proper security within a reasonable time. (c.) This cause has been on the calendar for two years after such bond was given, yet the appelle has made no motion to dismiss the appeal. In Dillingham agt. Skein, (Hemp's Rep., 181,) it was held that the want of an appeal bond doqs not affect the jurisdiction; it is waived, if the party appear and do not object at the proper time. (d.) Where no appeal bond was given on a motion to dismiss, time will be given to give security for costs (Anson agt. Blue R. R., 23 How., p. 1). (e.) And a defective appeal bond may be supplied at any time before the case is finally acted on (Deen agt. Hemphill, Hemp, p. 181). Now the present transcript handed to the court shows that it was filed on 27th December, 1869, yet in light of the above facts that is a clerical error, and this court could never see to correct it. In Woodward agt. Brown, (13 Peters., p. l),’it was held that a clerical error in the transcript of the record may be amended in the appellate court on the clerk’s certificate without a certioruri. A clerical mistake in the entry of judgment in error may also be amended, even at a subsequent term, the mandate not having been filed (Bank of Kentucky agt. Wistar, 3 Peters, p. 431). This court have the power, for the purposes of exact justice, to direct their clerk to re-en dorse the transcript of the record returned in this court as filed, of the exact time it was handed to the clerk, viz., December 9, 1867, which was in ample time. The chief justice after consultation with his brethren directed the argument to proceed, saying that a portion of the court considered the objection under the facts presented [322] as untenable, and the other members of the court considered that the appellees had taken the objection at too late a period and thereby waived it. The argument then proceeded : Mr. McMahon for the libellants and appellants on the points as to the liability of the general owners as defined by the local law of New York, wherein all the parties resided, cited and commented on the following cases, viz: Saxton agt. Read, Lalor’s Supplement to Hill & Denios, N. Y. Rep., p. 323; Kensel agt. Kirk, 37 Barb., N. Y. Rep. p. 113. Same case on appeal in New York court of appeals, and reported in 32 Howard’s N. Y. Prac. Reps., p. 269; McCready agt. Thorne, 49 Barb. N. Y. Reps. p. 438; Bassett agt. Crowell, 3 Robts. N. Y. Sup. Ct. Reps., p. 72; Vose agt. Cockroft, 45 Barb. Sup. Ct. Reps., p. 58; Sayer agt. Nichols, 1 Daly’s N. Y. Com. Pleas Reps., p. 1; Kohler agt. Wright. 7 Bos. N. Y. Reps., p. 318; Sirns agt. Howard, 40 Maine, 276. On the same liability as defined by the general admiralty law the counsel referred to. 2 Kent’s Comt. (6th ed.), p. 217; the Volont, 1 Notes of Cases, 508; the Mary Caroline, 3 W. Rob., 106; 6 Notes of cases, 538, 539; Scottin agt. Stanley, 1 Dallas, 129; 8 Wheat, 632, 633; 8 Cranch, 39; Act .of Congress, March 3d, 1851, Secs. 3 and 5, 9, Stat, at Large, p. 635; Walker agt. Boston Ins. Co., 14 Gray, 288; Allen agt. Mackay, 6 Law Rep. 686; 1 Sprague, 219; Spring agt. Haskel, 14 Gray, R. 309; Hill agt. The Golden Gate, 5 Am. L. R., 142, 146, 147; S. C., 1 Newberry’s Adm. R., 308; The Vrow Judith Volhrits, 1 C. Rob., 151; U. S. agt. The Malek Adhel, 2 How. U. S., C. R. p. 234; The Columbia Meeks, Ibid., 156; The Druid Norton, 1 W. Rob. 399; Story on Part, sec. 440.) On the liability of joint tort feasors, both in admiralty and at common law (Low agt. Mumford, 14 Johns., 426; Ruitgen agt. Kanouse, 1 Wash. C. C. R. 168; Milne agt. Hecker, 3 McLean, 212; Conner agt. Cockerill, 4 Cranch, Cir. Ct. R., 3; Newell agt. Norton, 3 Wall., 266; Smith [323] agt. Creole & Sampson, 2 Wall Jr. Ct. R., 485; Chace agt. Crary, 24 How. N. Y. Pr. Rep., 159.) On the general merits of the case Mr. McMahon cited and commented on (Whittridge agt. Hill, 23 How. Pep. 448 ; The Catherine agt. Dickinson, 17 How., 170.) Mr. Huntley on the liability of the general owners cited and commented on (Lyman agt. Beclman, 23 Maine, 289; 'Hallet agt. Columbian, Ins. Co., 8 Johns., 272; Clendaniel agt. Tuckerman, 17 Barb., 184; Tuckerman agt. Broivn,17 Barb., 191; Me Cabe, agt. Doe, 2 E. I).- Smith, 64; Sherman, agt. Fream, 30 Barb., 481; Baker agt. Huckins, 5 Gray, Mass., 596 ; Sproat agt. Donnell, 26 Maine, 186 ; Mantor agt. Holmes, 10 Metcalfe, 402; Naslin Parker, 38 Maine 489; Lincoln agt. Wright, 23 Penh a, State B. p. 76; Webb agt. Pierce, 1 Curtis, C. C. B., 104; Thomas agt. Osborne, T9 How., 22.) On the general merits of the collision, Mr. Huntley cited and commented on the (Osprey, 1 Sprague, 245, 255; Steamer Oregon agt. Reed, 18 How., 570; The Pacific, 1 Newberry Admy., 29; The Clermont, 2 Curtis, C. C., 363; Clapp agt. Young, 1 Sprague, 40, 44; Steamtug Wm., Young, Olcott, 41, 42; Steamferry, 181, Relief, 107; The Columbus, Abb. Adm., 388; The Brig Emily Olcott, 132; affirmed, 1 Blatch., 236 ; 1 Parsons, Maritime Law., 191, 192; The Steamboat Anglo Norman, 1 Newberry Ad. 494; The Bellville Id., 500; Steamboat New York agt. Rea, 18 How., 223, 224; Norbell agt. Steamboat, Keystone State, 9 N. Y. Leg. Obs., 289.) By the court, Strong, J. This was a case of collision on which the libellants impleaded the respondents personally as owners of the schooner B. H. Huntley. The libel avered that on the 12th day of February, 1860, the schooner Brothers owned by the libellants, was negligently run into and sunk on the high seas, by the B. H, Huntley in consequence of the [324] mismanagement of those on board the Huntley, and in charge of her. * The manner in which the collision occurred as we gather from the evidence, was as follows. On the morning of the day above mentioned, three schooners, the William Capes, the Brothers, and the R. H. Huntley, all bound for New York, were proceeding up the New Jersey coast, not far below Sandy Hook. They were all heavily laden, and sailing close-hauled, having the wind about north northwest blowing fresh and fitfully. The general direction of their courses was about the same. The vessels were near each other, the Gapes in advance and the Huntley next. After sailing thus from eight in the morning until after nine, the wind having veered more northwardly, all the schooners tacked toward the northeast, thus standing off shore. When the Huntley tacked to stand out, she lowered her mainsail in order to take in reefs, but the Capes and the Brothers continued to cany the same sail they bad carried before. In consequence of this, the Brothers passed the Huntley, though on the leeward side running at the speed of seven or eight knots, while the speed of the Huoitley was only four or five. All the vessels ran on the off shore tack some fifteen or twenty minutes, which carried them about two miles out to sea. The Capes then went about and stood in shore on her starboard tack, the Brothers following very soon after, but before the latter could gather headway, after tacking, the Huntley ran into her head on striking her abaft the main rigging, and causing her to sink in half or three quarters of an horn. All the witnesses agree, that when the Brothers tacked to stand in shore the Huntley was astern, though they differ respecting the distance at which she was astern. The evidence, however satisfactorily establishes that it was not less than five or six hundred yards, the Huntley being slightly to the windward. It is also clearly proved, that there was no lookout on the [325] Huntley, that no one on board of her saw the Brothers when she tacked or when she was in stays, or noticed her at all after her tacking until it was too late to avoid the collision. Though hailed from the Brothers, and told to keep off, no attention was given to the hail. The evidence also leaves no doubt, that had those in charge of the Huntley been watchful, had they seen the Brothers when she went about, it would have been entirely in their power by porting their helm to pass under the Brother's stern. It is plain, therefore, that the collision was the result of gross carelessness in the management of the Huntley. Knowing as the master did, that there were two schooners in close proximity to his own, knowing also as he must have known, that they were beating out their tacks, and would probably soon come about and put in shore, there can be no excuse for his failure to keep watch of their movements and to notice the change of course by the Brothers in season to port his helm and thus pass under her stern. That the hands on the Huntley, were engaged in reefing the mainsail, certainly did not relieve her from all obligation to observe the commonest precautions against inflicting an injury upon a neighboring vessel ahead, especially when the movements of that vessel were 'precisely what ought to have been anticipated. The respondents, however insist, that it is a custom of the sea not to have a lookout in the day time, or while reefing, and they have produced witnesses to prove such a custom. But’ the evidence falls far short of showing that such a custom exists generally, and if it were proved, it would not be a reasonable one sufficient to justify the absence of a lookout in such a case as this when the Huntley was in close proximity to two other vessels, both beating to the windward, and one of them at least expected soon to cross her bow. It has not been claimed, that the collision was the result of inevitable accident without fault, but the respondents contend, that it was due to the mismanagement [326] of the Brothers rather than to that of the Huntley. Their argument is, that the Brothers was under full sail and perfectly controllable while the Huntley being under head sails only with her hands engaged in reefing, was a crippled vessel and therefore, one to be favored. Hence it is inferred, that it was the duty of the Brothers to keep out of the way. It may be conceded, that when two vessels are approaching each other, the one crippled and the other in good manageable condition, it is the duty of the latter if possible to give way to the former. But the Huntley can in no sense be said to have been a crippled vessel. She was running freely on her off shore tack, four or five knots an hour, with her foresail and jib set. She obeyed her helm perfectly, and though she may not have been able to come about as easily as she would had her mainsail been set, there was not the slightest difficulty in the way of her taking care of herself, and avoiding collision with other vessels. The most obvious manoeuvre that of porting her helm was not embarrassed at all by the fact, that lief mainsail was not spread. It is further urged, that the Brothers had not beaten out her tack when she came about, and hence, that her putting her helm down, and turning inshore, when she did, was a fault which by throwing her in the way of the Huntley, caused the disaster. Was it, however, a fault 1 It is by no means clear from the evidence, that the Brothers had not beaten out her tack fully. On the contrary, the evidence that she had, appears to us to preponderate. But whether she had or not it is fully proved, that her coming about when she did was rendered proper if not necessary, by the fact, that the Capes changed to the starboard tack. The Capes was the leading vessel and while it is possible, that the Brothers might have ported her helm and gone astern of her, it is obvious, that the safer course was to tack when the Capes tacked, and there was no reason to apprehend, that the Huntley following astern at the distance of five or six hundred yards, and very little if at all the windward would be embarrassed by her tacking. She had [327] passed the Huntley close on the latter’s lee side at a distance of not more than one hundred yards and the Huntley carrying on her foresail and jib had been constantly falling off to the leeward. Abundant sea room was, therefore, left for the following vessel. It required only, that the Huntley’s helm should be ported half a point to carry her safely past the Brothers. We think, therefore, the whole fault of the collision is justly chargeable to the Huntley. It remains to inquire whether the respondents or any of them are personally responsible for the injury. They were all general owners of the schooner at fault at the time when the collision occurred, but the evidence shows, that she was commanded sailed and exclusively managed by Samuel S. Hammond one of them under an arrangement made between him and the other owners whereby he had in effect become the charterer of the vessel to be employed on his own account without the management, control, restraint or possession of the other owners. He sailed the vessel on shares, hiring his own crew, paying and victualling them, paying half the port charges, retaining half the net freight after the port charges were taken out and paying to the general owners the other half. It is clear, therefore, that he must be considered as having been the owner pro hae vice. This accords with the authorities generally (Hallett agt. The Columbian Ins. Co., 8 Johns., 272; Webb agt. Pierce, 1 Curtis C. C., 104; Thomas agt. Osborne, 19 How., 22; See also, act of Congress of March 3, 1851, sec. 5, 9, Stat. at Large, 636.) .Notwithstanding this, however, and though Samuel S. Hammond was the special owner, it has been1 contended on behalf of the libellants, that all the general owners are liable for the torts committed by the schooner while she was thus let to charter. The circuit court was of opinion, that they are not, and this court is equally divdied upon the question. But we are all of opinion, that the owner pro hae vice is liable, and that he may be charged in this proceeding. The court below held, that he had been sued merely as a [328] part owner not as the charterer, wrong doer or active cause of the disaster, and that as his liability was placed by libel on the same ground as that oí the other owners, the suit must stand or fall as to all the respondents, and they held the act of March 3, 1851, a bar to the suit in the form in which it had been brought. The court, therefore, dismissed the libel. This, we think, was an error. The act of 1851, enacts, that the charterer or charterers of any ship or vessel in case he or they shall man, victual and navigate such vessel, at his or their own expense, or by his or their own procurement, shall be deemed the owner or owners of such vessel within the meaning of the act (sec 5.) The previous section had declared, what shall be the liability of owners for collisions. Samuel S. Hammond, therefore, is to be regarded as the owner, because the charterer and as such responsible for the tortious acts of the vessel. If the other general owners are not, he is, the libel, it is true, avers, that all the respondents were owners at the time of the ■collision. It does not set forth, whether they were general or special owners, such an averment was unnecessary, for it is immaterial to their liability whether they were one or the other, if they had the possession and control of the vessel. It is the ownership which determines the liability and an averment of the mode in which ownership was acquired, would be superfluous. Had Samuel S. Hammond been sued alone as he might have been, the libel need not have averred more respecting his ownership than is averred now. It would have been of no importance to set out whether he became owner by purchase of the schooner or by bequest, or by charter party, for his liability would have been as fixed in such case as in the others, nor does the libel in this case charge general ownership as distinguished from ownership pro hac vice, or ownership as defined by the statute. There is nothing then in the structure of the libel which stands in the way of a recovery against Samuel S. Hammond as owner, [329] unless it be that others are also sued with him. And surely that is no bar to a recovery against him. The libel is for a tort, and tort feasors are jointly and severally responsible. At common law, when several are sued, there may be a recovery against one alone or against more than one and less than the whole number. We know of no reason for a different rule in admiralty, and it is in accordance with admiralty practice to decree against one or several respondents to a libel for a tort, and to discharge the others (Newell agt. Norton and Ship, 3 Wall., 257; Smith agt. The Crede and Sampson, 2 Wall., C. C., 485). Our opinion, therefore is, that even if the libel was rightly dismissed as to all the respondents except Samuel S. Hammond, the libellants are entitled to a decree against him. The decree of the circuit court is reversed, and the record is remitted with instructions to order a reference to ascertain the damages and to decree that the libellants recover against Samuel S. Hammond.