Majority
p. 305Snell, Stagg, & Co. against Rich. The only question in this case is, whether the pilot on board of a ship has such an entire and exclusive command, and direction of the ship, that
Headnote
A vessel run foul of another vessel lying at anchor, and earned away her bowsprit, and ^^The^essei that caused the 'oTíiie* harbour with a Pdot on board, and the master '^e^me of'^he accident. In an ^ owners * of die injured the master of* the master was damage6A’¡j/os while on board, lius ths fixclii" sive controul" direction of the vessel, and is considered as master pro has vice. Severe, whether the owners of the ship arc liable for the conduct of the pilot ?THIS was an action on the case. The cause was tried , , . . , . . - at the Nerw-York sittings, on the 10th ot January, 1806, before Mr. justice Livingston.
The declaration stated that the plaintiffs were the owners of a vessel called the Lapwing, lying at anchor in the East-River, in the harbour of New-York, and the defendant being in possession of another vessel, called the Amphion, then sailing and navigating on the saidriver, and that the defendant so a ° . & . carelessly navigated and managed the said ship Amphion, that she run foul of the plaintiffs’ vessel, carried away her bowsprit, &c. &C.
The facts stated in the declaration were proved. There did not appear to have been any carelessness to be imputed to the pilot, or the defendant, who was the master of the Amphion. The Amphion had made sail-from the wharf, bound up the river to pass through the sound, and had taken on board a branch-pilot to conduct her through Hell-Gate. The defendant was not on board at the time the accident happened,
• • The judge stated to the jury that he was inclined to belie ve, that as the master was not on board, and the Amphion . was under the direction and charge of the pilot, that no action could be maintained against the master.
The point of law was reserved, and the jury found a verdict for the plaintiffs; but it was agreed that if the court should be of opinion, on the question of law, against the plaintiffs, then a judgment of nonsuit was to be entered.
W. Morton, for the plaintiffs.
p. 306the master is not to be responsible for any thing happening during the time the pilot is on board. Jacob, in his law-dictionary,[1] defines a pilot to be a person, who has the government of the ship under the master.[3] this be correct, and the master has any controul over 'the conduct of the pilot, he must be answerable'fot: his acts, and it makes no difference whether the master was on board or not. Every man is answerable for-his own acts, or those of his agent. Here the pilot acted for the owner. The plaintiffs must look? either to the pilot, or the owner. The pilot has the entire controul and management of the ship, and is answerable for her safety, while on board ; he supersedes the master in the command. Here, in fact, the master was not on board, and the acts of the pilot, cannot, in any sense, be imputed to him. The master is an intermediate person, a middle man, against whom no action lies.[2]
Bogert, for the defendant.'
Do you admit the owner to be liable ?
Bogert. I do not mean that; but only that the intermediate person is not liable.
Kent, C. J. I shall give no opinion as to the liability of the owner.
It is universally understood that the pilot, while on board, has the absolute and exclusive controul of the ship ; and I am prepared to say, that if the master had been on board, he would not have been responsible.
As the master was not on board, he, certainly, was not master at the time of the accident. The pilot must be considered as master pro hac vice. The defendant, therefore, is not liable as master; and it does not appear that he was owner. But we give no opinion whether the owner would be liable or not.
Judgment of nonsuit.