Creen v. Croce

Idsdey, J. These two cases were tried together in the lower court, almost on the same evidence adduced in each. The facts are correctly stated by-the Judge of the Fourth District Court of New Orleans, and are as follows : On the 6th of- January, 1859, whilst'the ship Digby was attempting to cross the bar, at the South West Pass, under sail, she grounded on the bar, and whilst so aground, the towboat O. Yanderbilt, having in tow astern the ship Orozimbo, attempted to pass the Digby, which was lying' across the channel, and in so doing the Orozimbo was brought into collision with the Digby, whereby both the Digby and Orozimbo were seriously damaged. The owners of the Digby claim, that the collision was occasioned by the fault and neglect on the part of the officers and crews in-' charge of both of the Orozimbo and the towboat Yanderbilt, whilst the [6] owners of the Orozimbo claim that the collision was attributable to the fault of the Digby and the Yanderbilt, thus presenting (as the Judge appropriately observes) a species of triangular crimination. Two separate judgments were rendered in the lower court; one in the suit of John Creen, Master, &c., v. E. Francisco Croce, et al., and the owners of the Digby against Hyde & Mackie, owners of the Yanderbilt, in solido, for the sum of $613, with interest and costs, and in the same suit in favor of E. Francisco Croce, master and owners of the ship Orozimbo, also defendants therein, discharging them from liability, and the other judgment in the suit of E. F. Croce, Master, el al. v. The Vanderbilt et als., in favor of the plaintiffs for $955, with interest and costs, Hyde S Maclcie took a suspensive appeal from both judgments, and it was agreed that one transcript should serve both appeals, and that the case as between Creen S Croce, the Digby and the Orozimbo, should be examined and decided apart by this court without a formal appeal on the part of the former, and in the same manner as if an appeal had been regularly taken. Before proceeding to an examination on the merits of these consolidated cases, we will dispose of two bills of exception, taken by Hyde S Mackie to the reception and rejection of certain evidence on the trial of these cases. The first was to the overruling of the objection made by them to the evidence of John Creen, on the ground that he was the party-plaintiff to the record in his suit against them, and as such liable for the costs of suit. As a general rule, the objection would have certainly been a valid one ; but as the witness was merely a nominal party to the suit, and disclaimed any personal interest therein, we do not think such an objection could deprive the real parties in interest of the benefit of his testimony, and the Judge of the lower court did not err in receiving it. The second bill of exceptions was, to the refusal of the court to receive in evidence a certain private book, made a part of the bill, in connection with the testimony of Captain Smith, that the same contained the rules and regulations of the several towboat companies, with regard to their charges and responsibilities, and also to prove that said books were exten--sively circulated and were well known to the commercial community, particularly to those engaged in the Shipping business. For the reasons stated in the bill, and in accordance with the ruling of Mr. Justice Story, in the case of the schooner Reeside, 2 Sumner 567, the said book and explanatory evidence was properly rejected. On the merits, the evidence in these cases, as is usual in kindred cases, is conflicting; but, after a very careful examination of the whole evidence in the record, it is, we think, satisfactorily shown, that the collision between the Digby and the Orozimbo was not occasioned by force majeure, but by the fault, negligence, carelessness, unskilful management and obstinacy of the master of the Yanderbilt, who, regardless of the peril of attempting to pass the Digby, with a ship in tow astern, which was held by a hawser of some forty fathoms long, nevertheless, in spite of repeated warnings and remonstrances from persons on the Digby and the Orozim-bo, persisted in making the attempt, as appears by the combined testimony of Creen, Patterson, Ferris, Herns and Jackson. Had the master of [7] the Vanderbilt let go the hawser which held the Orozimbo to his vessel, as he was requested and urged to do by the pilots of both boats, or stopped when only at the distance of one hundred and fifty yards, the accident would not have happened. See evidence of Jackson. The danger of an imminent collision should have been manifest to an experienced navigator. The channel was very narrow, and the sheer taken by the Orozimbo in the eddy, naturally resulting from the Digby’s position in the channel, was the natural result of the reckless attempt made by the Vanderbilt. Had the master of the Vanderbilt, even when the danger of collision became imminent, displayed ordinary skill as a navigator, the collision might still have been averted. He controlled the situation, and had he cast off the hawser, or anchored in time, no collision would have taken place. Heither the Digby nor the Orozimbo were to blame for the collision ; for, as the Judge of the lower court properly observed, the Digby had the right to come on to the bar with either sail or steam, at her option, and no law or regulation exists to control her in this respect. She being aground was her misfortune ; but as she was in that condition and entirely helpless, it was the bounden duty of all other vessels to do her no harm. See Sauvé v. Beckwith, 9 La. 430; Story on Bailments 386. As to the Orozimbo, she was merely a passive agent, with no present motive power save that received from the Vanderbilt, and made repeated attempts to be cut loose from her. The case of Bestoso v. U. S. Mail Co., 9 Ann. 268, establishes the prim ciple by which a ease like this should be governed. If the accident was an unavoidable one, with due precautionary measures, it was incumbent on the defendants, Hyde & Mackie, to show this exculpatory fact; but, on the contrary, the record is full of proof that the whole damage inflicted on the Digby and Orozimbo, was occasioned by the wilful obstinacy, fault and negligence of the master of the Vanderbilt. Saurie v. Tourne & Beckarts, 9 La. 428. The cases are fully made out, and the defendants, Hyde & Mackie, who are proved to have been the owners of the Vanderbilt when the collision occurred, are responsible, as common carriers, to each vessel for the damage sustained by it. See Art. 2294, C. C.; Smith et al. v. Pierce et al., 1 La. 350; Davis v. Housen, 6 Rob. 256; Millaudon v. Martin, 6 Rob. 541; Burges v. Beebe, 3 An. 668. See Acts of State Legislature, 1855, B. S., sec. 1, p. 537. The master and owners of the Orozimbo were properly exonerated from all liability to the Digby, as they were in no way to blame for the collision with that vessel. It is therefore ordered, adjudged and decreed, that the judgments rendered in the suit, John Creen, Master, &c., v. E. Francisco Croce, and in that of E. A. Croce, Master, &c., v. Towboat Vanderbilt, consolidated, be, and the same are hereby affirmed, the costs- of appeal to be paid by Hyde & Mackie, in solido. Jones, J., absentj