Smith v. Burnett

after stating the case, delivered the opinion of the court.

Undoubtedly^ there was jurisdiction in admiralty in the courts below, and the applicable principles of law are familiar..

Carleton v. Franconia Iron and Steel Company, 99 Mass. 216 , is so much in point that we quote from it, as did the Court of Appeals. The case was in tort for injury to plaintiffs’ schooner by being sunk and bilged in the dock adjoining defendants’ wharf which fronted on navigable waters, where the tide ebbed and flowed. Defendants had' dredged out the adjoining space to accommodate vessels which were accustomed to come with iron and coal for defendants’ foundries, situated on the wharf. There was in. the space dredged a large rock, sunk in the water and thereby concealed from sight, dangerous to vessels, and so situated that a vessel of the draft to which the water at the wharf was adapted, .being placed at high water at that part of the wharf, would lie over the rock, and at the ebb of the tide would rest upon it. Defendants had notice of the existence and position of the rock and of its danger to vessels, but neglected to buoy or mark it ,or to give any notice of it to plaintiffs or any one in their employment, though their vessel came to the wharf by defendants’ procurement, bringing a cargo of iron for them under a verbal charter. Mr. Justice Gray, among other things, observed:

“ It does not indeed appear that the defendants owned the soil- of the dock in which the rock was- embedded; but they' had excavated the dock for the purpose of accommodating vessels bringing cargoes to their wharf; and such vessels were

accustomed to occupy it, and could not discharge at that point of the wharf without doing so. . . . Even if the wharf was not public but private, and the defendants had no title in .the dock, and the concealed and dangerous obstacle, was not created by them or by any human agency, they were still responsible for an injury occasioned by it to a vessel which they h¿d induced for their own benefit to come to the wharf, and which, without negligence on the part of its. owners or their.agents or servants, was putin a place apparently adapted to its reception, but. known by the defendants to be unsaie. This case cannot be distinguished in principle from that of the owner of land adjoining a highway, who, knowing- that there was a large rock or a deep pit between the travelled part of the highway and his own gate, should tell a carrier, bringing goods to his house at night, to drive in, without warning him of the defect, and who would be equally liable for an injury sustained in acting upon his invitation, whether he did or did not own the soil under the.high way.”.

And as to the degree of care required of the master or vessel owner, the same court in Nickerson v. Tirrell rightly said: “ The true rule was stated, to the jury, that the. master was bound to use ordinary care, and could not carelessly run into danger. ¥e cannot say, as matter of law, that he was negligent. because he did not examine or measure the dock and berth. It was for the jury to determine whether the conduct and conversation of the defendant excused the mas-, ter from making any more particular examination than he did make, and whether, upon all the evidence, he used such care' as men of ordinary prudence would use under the same circumstances.”

The cases necessarily vary with the circumstances. In The Stroma, 42 Fed. Rep. 922 , the libellant sought to recover damages received by its steamer, while moored alongside respondent's pier, by settling, with the fall of the tide, on the point of a spindle, part of a derrick attached to a sunken dredge. Work was proceeding for the removal of the dredge, and several buoys had been set to indicate the place of its several parts. The agent of the steamer knew of the location of the wreck-;

In The Moorcock, 13 P. D. 157, defendants, who were wharfingers, agreed with plaintiff for a consideration to allow him to discharge his vessel at their jetty which extended into the river Thames, where the vessel would necessarily ground at the ebb of the tide. The vessel sustained injury from the uneven condition of the bed of the river adjoining the jetty: Defendants had no control over the bed, and had taken no steps to ascertain whether it was or was not a safe place for the vessel to lie upon. It was held that, though there was no warranty, and no express representation, there was an implied undertaking by defendants that they had taken reasonable care to ascertain that the bottom of the river at the jetty ivas not in a condition to cause danger to a vessel, and that they were , liable. The' judgment Avas sustained in the Court of Appeal, 14 P. D. 64, and. was approved by the House of Lords in The Calliope, (1891) App. Cas. 11, though in the latter case it was ruled, on the facts, that there was no sufficient evidence of any breach of duty on the part of the Avharf-ingérs, and that the injury to the vessel Avas caused by the captain and pilot attempting to berth her at a time of the tide when it was not safe. The berth was in itself safe, but it was held that, under the particular'circumstances disclosed by the proofs,, the ship owner had; assumed as to the approaches the risk of reaching the berth; while the general rule in respect of the duty of Avharfingers was not questioned. The' Lord Chancellor remarked: “ In this case the Avharf-i-nger, who happens to be the consignee, invites the vessel to a particular plaoe to unload. If, as it is said, to his knowledge the place for unloading Avas improper and likely to injure the vessel, he certainly ought to have adopted one of these alternatives: either he ought not to have invited the

We are remitted then to the consideration of the facts, and as to them the rule is firmly established that successive decisions of -two courts in the same case, on questions of fact, are not to be reversed, unless clearly shown to be erroneous. Towson v. Moore, 173 U. S. 17 ; The Baltimore, 8 Wall. 377 , 382; The S. B. Wheeler, 20 Wall. 385 , 386; The Richmond, 103 U. S. 540 . And when the evidence is conflicting, there being evidence to sustain the decree, this court will not ordinarily interfere.

Tested by this rule we must assume on the record that the vessel in question was chartered by appellants, through a ship

We also think that the conclusions of the Court of Appeals, set forth in its opinion, that no ordinary skill or effort on the part of the master or owners could have been exercised effectively to save the vessel from total loss, and that the injury was not increased, nor the damages enhanced, by delay in attempting to raise and remove the vessel, cannot reasonably be questioned; and that we are not required to pass on the conflicting evidence in respect of the value of the vessel at the time of the injury. In other words, it must be held that the cross libel was properly dismissed, and that the amount of damages awarded is not open to inquiry.

As to knowledge or notice of the obstruction by appellants, the evidence tended to show that they had been for some years in the use of the wharf and of this particular berth; ' that they had under lease perhaps two and a half miles of river front,' containing stone quarries, some of which they ■were working; that their business was large, and that during the year 1893, before the accident, they had loaded from fifteen to twenty vessels at the same place; that the capacity of the crusher for loading vessels through the 'chute was from one hundred and fifty to two hundred.tons a day; that they employed from one hundred and fifty to three hundred men, and at times many more, and had bins into which they ran crushed stone to be carried off in various ways. It further appeared that in December. 1892, the two masted schooner

But the stress of the argument is that, the master was guilty of negligencé which contributed to the injury, and chiefly in not ascertaining the condition of the bottom of the berth and taking precautions, as advised. Yet on this, as on other branches of the case, the evidence was conflicting, and we cannot say that the finding of the Court of Appeals that the evidence failed to establish “that there was want of due car$ on the part of the master, and a failure to exercise proper supervision for the safety of the vessel, while she was moored at the wharf for the purpose 5f being loaded,” was clearly erroneous. The master came to the berth on appellants’ business; and there was evidence to the effect that the broker, with whom the engagement was made, and appellants’ foreman were both informed that the vessel would draw when loaded from fourteen to fourteen and one half feet, and that the master was assured by both that there was plenty of water; that the berth had been dredged out to between fourteen and fifteen feet; and that there was fourteen feet “ sure at low water.” The evidence also tended to show that the foreman suggested on Friday to the master to make some soundings for himself; that there might have been something dropped over from a lighter that he did not know of; that the captain did. make soundings and found sufficient water as the vessel then lay; that one of the appellants told the foreman “ to tell the captain of the Tobin that he had better sound around the vessel and make sure that it was laying all right; ” that the foreman “ said the vessel was laying all right, but he would tell the captain,”' as he afterwards reported he had; °that the captain sounded around the vessel oh Saturday

At all events, we are unable to decide that the Court of Appeals was not justified in holding on the evidence that appellants were liable for negligence and the want of reasonable care, and that the master was free from contributory negligence; and the decree must, therefore, be

Affirmed.