Annett v. Foster — 1 Daly (N.Y.) 502

Majority

p. 502

Robert Annett v. David Foster.

Headnote

Where a vessel was attached to a wharf by a line lying for most of its length beneath the water, and at such a distance from the wharf as to leave ample passage-way between it and the wharf for vessels to pass to and fro, but no person was on deck to loosen the line or warn vessels attempting- to pass,— 77./W, negligence which rendered the owners liable for any damages resulting therefrom.

The relation of master and servant between the owner and master of a vessel and the liability of the former, as owner, for negligence in its management dots not censo unless the owner has given up all control of the vessel and of her boipiov meat, and ail immediate and direct interest in the freight earned by her. -Hence, where the agreement between the owner and master of a tí .«■;! was that the former should make contracts for, and receive the freight, and nay wha-5'ge, f.nd the master should_ receive a share of the freight r-w.icy, cod pay nil oilier expenses, and be allowed to select the kind of employment for the vessel,—J3LUI, That this was not sucb a surrender of control

p. 503

as to make the master owner pro 7tac vice, or relieve the owner of liability for injuries arising from negligence in the management of the vessel.

What acts will divest the owner of his responsibility for the management of a vessel,—considered.

Appeal by the defendant from a judgment of the District Court for the Third Judicial District.

The action was brought to recover damages for injuries caused to the plaintiff’s steamboat, the “Thomas E. Hnlse,” from a collision with the defendant’s schooner “ Cataract.”

The schooner was lying apparently at anchor opposite the Jane Street pier, and about one hundred yards from the pier to which she was in fact fastened by a line, the line dipping into the water immediately from the pier and the how of the schooner. The steamboat was passing up between the schooner and the pier, which was testified to be the usual track for her in the then state of wind and tide, and according to the pilot’s evidence, the rope was not seen until the boat was too near to stop. She was checked, hut was caught by the rope, so as to produce a collision, causing - some damage to the steamboat, and causing her to be laid up for repairs for two days. It was testified that no person was on the deck of the schooner when the boat was approaching.

The defendant gave evidence that Yicholas Thompson had control and management of the schooner. She was chartered to him in shares, and he was to victual and man her ; that defendant had nothing to do with her navigation. The schooner was, at the time, canying brick for one Henry Belfair, under a contract made by defendant himself. Thompson had the privilége, if he did not like the brick trade, to go into any other he thought more profitable. The defendant paid the wharfage, while Thompson paid all other expenses, and he and defendant-had a settlement every two trips. On these facts the justice rendered a judgment for the plaintiff for one hundred and fifty-one dollars and thirty-seven cents, from which the defendant appealed.

Wm. J. Haskett for appellant.

G. P. Andrews. for respondent.

p. 504

By the Court.

The evidence inti.hr the plaintiff made out a clear case of the abrene>- ■ .- *.r gence on the part of those in charge of the steamD-aw ’ > in conflict with the testimony produced by the }>hdu': f * tablish co-operating negligence, and the justice L:\hw ■’ favor of the plaintiff his decision upon all fuels conflict is final, and will not be reviewed.

The steamboat was not out of her course. The;-.- v.. . space for her to pass between the schooner and flu* b •’ , had several times before gone as close to the doe!., w," so on this occasion to keep fair with the wind and i.> i*. her speed. It was, according to the testimony <>!' in - ; * usual and accustomed course, as the wind and It was an act of negligence to have the scli.-.ci. :• ! -■ the river from three to four hundred yards iV- - with her line attached to the bulkhead, in- a - ;!.■ • in the water, there was nothing to indicate th.it . thing to obstruct the free passage of yes.-.<;L: in *L • • ; between the schooner and the wharf. If the ]>■ .-h come necessary in consequence of the high state "f V -• and the dragging of the schooner’s anchor, she .-h .-old had some person upon the look-out, either to slacken rh !. to warn vessels approaching not to pass between her . \ bulkhead. As the line which connected her with the v was beneath the water, it would naturally he supplied. ¡. the casa in this instance, that she was lying at anclwr, a continue lying there, in a river like the Hudson, when.- * boats and vessels of every description are constantly p without resorting to any means to indicate. that there n obstruction to vessels passing between her and the who providing any way to guard against the occurrence e-1 accident as took place, w'as an act of negligence.

The agreement which subsisted between the do fen*:: n the master of the schooner was not of such a chair.'-: - r constitute the latter owner of the vessel pro 7<w a- schooner belonged to .the defendant, and he made a >•' vidi one Be-lfair to carry brick for a stipulated sum p sand, In which service che vessel had Lvui ewyh-y'-e time when the accident occurred. The dubne.- ;. •• the freight for the carriage of the bricks from D.w.’.f. ..

p. 505

one-half of it to the■ master and retaining the other half himself. The master, out of his half, victualed the vessel, hired and paid the men, and had exclusive charge of the navigation ; and the defendant, out of his half, paid the wharfage. The wear and tear and painting were also, it would seem, paid out of the captain’s share. A settlement was made at the close of every second trip, and the captain, if he did not like the brick trade, had the privilege to go into any other he thought more profitable.

There was not such a. parting by the defendant with the control and management of the schooner and of her earnings as would inake Thompson, the captain, the temporary owner. The defendant was the owner and the freighter. lie made the contract with Belfair for the carriage of the brick, collected the freight, and he alone was entitled to receive it in the first instance. He would be answerable to Belfair in the event of a failure to deliver the bricks pursuant to the contract; all of which arc determining circumstances to show that he had not so divested himself of the control and management- of the vessel and of her earnings, as to vest in another the rights and responsibilities of ownership for the time being. “If a case should occur,” said Lord Textekuex, in his work upon shipping (p. 57, 8th Lond. ed.), “ of an injury done by the negligent or unskillful management of a ship, the possession'and control of winch had so completely passed to the charterer that he appointed the master and crew, and directed not only her destination and employment, but the mode of her navigation, then, probably he, and not the absolute owner, would be held responsible for the misfortune.” But this is not such a case. Here the master of a vessel is selected by the defendant, between whom and the master an agreement is made to run her upon shares, but the defendant contracts for her employment, and receives the freight, which he divides with the master, each of them bearing a certain proportion of the expenses of running the vessel. In the well-considered case of Newberry v. Colvin (7 Bing., 190 ; 1 Clark & Fin., 283),'which in some respects resembled this,"the -owner - had no immediate interest in the freight earned, but the whole surplus went to the master, who had agreed to pay for the time and use of the skip, whether any freight was earned or not, a stipulated sum, to be com-

p. 506

pitied according to the tonnage of the vessel, which w;i, trolling circumstance to show that the vessel wa=* in th, ployment of the master, and not of the owner. Tim sans turc distinguishes the case of Thompson v. Snow (1 th 264), in which the vessel was let to the master on sh : - victualing and manning her, paying a portion of fir-charges, and yielding to the owners for her hire, a certain of the net. earnings ; but in which he had the right to m the vessel as he pleased. In Lyman v. Rodman (10 Shep;;;lkl it is said that the taking of the v essel by the master, his vi ing and manning her, paying a portion of the port charghaving a share of the profits, do not of themselves cor, him the owner pro hap -vice ; that it is the entire coibr-. direction of the vessel which he has the power to a-wr: the surrender by the owner of all power over her fhr tim being, which will exonerate the owner from liabiüíx. was the case of Webb v. Pierce (1 Curt. C. C. R., h-which the master hired the vessel upon shares, under a:;. ment to victual and man her, and employ her in such v as he thought best. In Jones v. Blinn ( 2 Rich., 475 ), i held that the oxvner is liable, the presumption being th: vessel is navigated for his benefit; but xvhere it is c-1 proved that he has no interest in the freight, and that , navigated under the entire control, as xvell as for the vxT benefit, of a third person, such person is pro haw cL- owner ; and in Arthur v. The Schooner Cassius (2 Story where the vessel was chartered by the master as owner certain voyage, and by the terms of the charter party th eral owners xvero to share the freight with the master, i held that the general owners were liable as oxvners to voyage. These authorities are decisive upon the point r The defendant, it is true, testified that Thompson had th. ilege if he did not like the brick trade to go into any Km he thought more profitable ; but however that may ha’v or whatever may be-the exact meaning of this testim* is sicncwbax loose-, the d.-.bndant, at the time of th,.- a' and for some time before, had contracted for cue etc.;of the vessel, and had received and shared in the m.-L"." the fact that she was then employed in an enrerprb> ic - ing? of which were received bv the defendant, and pvyo

p. 507

dbly divided between him and Thompson, is sufficient to fix the defendant’s liability (Jones v. Sims, 6 Port., 138 ).

The defendant selected the master, and if lie were a negligent, unskillful, or incompetent officer,'he had the right to discharge him, notwithstanding the agreement which existed between them. Whether he engaged him at a stipulated sum, or made an agreement with-hiin to run the vessel upon shares, did not alter their respective relations in this particular, unless the defendant had given up to him, which he did not, all control of the vessel, and of her employment, and all immediate or direct interest in the freight earned by her. On the contrary, he retained and exercised the right to contract for her employment, so that the relation of master and servant was not severed between them. As respects third persons who might sustain injury from the unskillful or negligent management of the vessel, lie stood in the relation of owner, and Thompson in that of master; and it is well settled that an owner is, under such circumstances, responsible for an injury arising from the negligence or want of skill of those who are entrusted with the management of the vessel (Duser v. Murgatroyd, 1 Wash. C. C. R., 13 ; Stone v. Keatland, ib., 142; The Rebecca, Ware's R., 188; Abbott on Shipping, 228, 8th Lond. ed.).

The judgment of the justice must be affirmed, hut as the question is an important one, and as both parties consent, the ease, if desired, may be taken to the Court of Appeals.

•Judgment affirmed.