Vantine v. The Lake

GRIER, Circuit Justice [after stating the facts as above]. It cannot be pretended that the injury from this collision was caused by any fault of the libellants’ vessel, or that her master or crew were in any way to blame for the result, unless we admit what the answer assumes, that they were bound to know the depth of water necessary to float the Lake, and to give ner notice to keep farther off, because the dock was not deep enough to float her at low tide. But I think this assumption is entirely without foundation. The Mary Jane was fast to the wharf, and her master and crew attending to their own business in unloading her cargo. They were bound to know whether the depth of water was sufficient for their own vessel; and the master of the Lake was bound to know how much water his own vessel drew, and whether the dock would float her. Moreover, she drew into the wharf by the orders of the consignees, who were lessees of the wharf, and who did know that the water was insufficient for the draught of the Lake, and who did know that the bottom of the dock had been banked up in the middle, which is alleged to be the proximate cause of the Lake’s careening over on the Mary Jane. The master of the Lake, then, was bound to know whether the dock would float his vessel, and not only so, the consignee, under whose order he acted (and who pro hac vice acted as his pilot), did in fact know the state of the bottom, and the depth of the water in the dock, for the fact is brought -to light by the very person who gave the direction. Now the answer does not allege that there was any vis major, or inevitable accident which caused the injury, nor indeed was there any. But it. is imputed as a culpable negligence in the libellants, that they did not give notice to the respondents, of a fact of which the libellants were ignorant, and not bound to know, and which those who ordered the respondents’ vessel to take that position actually did know. Without insisting on the fact that the master of the Lake refused to use the only probable means of saving the Mary Jane, when informed of her situation, it seems to me, that lie was to blame in not taking proper precautions both before and after he was aware of the injury likely to accrue to the libellants’ vessel from the position in which he moored the Lake; and he has failed to make out a casé of unavoidable accident or vis major, which no human skill or precaution could guard against. The case of the Volcano [3 Notes of Cas. 210; Pritch. Adm. Dig. 129, in note] 2 cited at the bar resembles the present in some respecis. [The Helena, a brig of 110 tons, came to anchor in Mahomet’s Bay, on the coast of Spain. The steamer Volcano ran for slielier from a gale into the same bay, where she took up an anchorage, two cables’ length from the Helena, on her starboard bow, with her small bower anchor (weighing but 16 cwt.) and a chain cable only an inch and a quarter thick. About midnight a hurricane arose, and caused the Volcano to drift; the anchor broke, and, though another was dropped, the Volcano, by a sudden sheer, drifted athwart the hawse of the brig; and having again come in collision with her, the brig ultimately went down. It was held, in a cause of damage, in respect of such collision, instituted by the owner of the brig, that there was a want of proper precaution in the position which the Volcano originally took up, and in not letting out more cable and a second anchor.] 2 The precautions taken by the Volcano were amply sufficient, but for the hurricane which her commander had not foreseen, or probably could not foresee; but not having taken proper precautions against any hurricane which might possibly arise, he was held liable. Here the state of facts which -caused the respondents’ to come into collision with the libellants’ vessel, was actually known to the person who pro hac vice was the commander. or under whose directions the Lake was moored; but no precaution was taken to avoid the collision which afterwards took place. Moreover, there was a refusal by the master of the Lake to use the only probable means of avoiding the injury, while yet in his power to have done so. The libellants are entitled to a decree for the amount of damages incurred, to be assessed by the clerk, to whom the ease is referred for that purpose. [1088] The clerk, having afterwards reported on the amount of damages sustained, exceptions to his report were filed, on the ground that he had allowed charges for wharfage for the Mary Jane while being repaired; for the time of one of her owners, and of her crew while raising and clearing her out; and for the loss of profits to the vessel' while sunk, and during her repairs. But THE COURT, after argument, confirmed his report. Footnotes [2] [From 14 Law Rep. 6G9.]