Slack v. Brown

Whether, where avessel has been run down, or run afoul of by another vessel, through negligence or wilful misconduct, the owner of the vessel injured can, in a proceeding under the statute given alien for damage upon the vessel doing the injury, recover, besides the damage to the vessel itself, consequential damages—q verb. At all events, where the plaintiff in his declaration only claims for damage to the vessel, he cannot recover beyond his claim. Where a vessel proceeded against for such injury has been discharged from seizure, upon the execution of a bond to pay, &c. and an action is brought upon the bond, the defendant may tender amends on the ground that the injury was casual or involuntary. The plaintiff is entitled to a verdict for the sum tendered as damages, although he refused to accept the same when tendered; if he recovers no more than the sum tendered, the defendant is entitled to the costs accrued subsequent to the tender ; but if he recovers only six cents beyond, he is entitled to costs. After a refusal, the plaintiff" may at the trial elect to accept the sum tendered, and if he does so, the defendant is bound to pay, or a verdict must be rendered for the amount; and in such case the costs accrued after demand and a reasonable time to pay, will be deducted from the costs to which the defendant is entitled. Whether a trespass or injury for which amends are tendered was casual or ■ involuntary, must be certified by the judge presiding at the trial.

This action was tried at the Albany circuit, in March, 1832, before the Hon. James Vanderpoel, one of-the circuit judges. The plaintiffs sued out a warrant, under the act to extend the provisions of the law relative to proceedings for the collection of demands against ships and vessels, passed 26th April 1831. See Session Laws of 1831, p. 421. By the first section of which act, it is enacted that whenever any ship or vessel shall have been run down or run afoul of, by any other ship or vessel, through negligence or wilful misconduct, and shall have sustained damage to the value of §50 or upwards, the owner of the ship or vessel sustaining the damage shall have a lien upon the vessel causing the damage, and may make application, in writing, to a proper officer for a warrant to seize the vessel; setting forth in such application the name of the vessel causing the damage, the manner in which the damage was done, and the amount thereof; which officer is authorized to issue such warrant. The subsequent proceedings are directed to be in conformity to the provisions of the revised statutes. 2 JR. ¡S. 493, el seq. The warrant in this case was issued against the steam-boat Ohio, which was seized by virtue thereof, and subsequently discharged, on the defendants in this cause entering into a bond, on the 24th June, 1831, conditioned to pay the amount of all such claims and demands which had been exhibited to the officer issuing the warrant, and which should be established to have been subsistingliens upon the Ohio, pursuant to the provisions of the revised statutes. 2 JR. S'. 495, § 13. On which bond this suit was commenced, and pursuant to the 16th § of the statute, the plaintiffs declared on the bond, setting forth the same and the condition thereto attached, and then proceeding to state their cause of action as follows : that on the 4th June, 1831, they were the owners of a sloop called the Charles, which was run afoul of by the steam-boat Ohio, through the negligence or wilful misconduct of the persons navigating the steamboat, whereby the sloop Charles sustained great damage, to wit, to the amount of §400 ; that the plaintiffs applied to the recorder of Albany for a warrant against the Ohio, to enforce their lien for the damage sustained by the sloop Charles; that’their claim for damage was a subsisting lien on the Ohio at the time of the application for the warrant, and at the time of exhibiting the claim, pursuant to the statutes in such case made and provided; yet that the defendants have not paid, &c. The declaration contained a second count, varying from the first only in stating that the Charles was run down, instead of being run afoul of. The defendants pleaded the general issue. On the trial, the plaintiffs proved that in June, 1831, while the sloop Charles was lying aground on the Overslaugh in the Hudson, she was ran afoul of by the Ohio through the negligence of the persons navigating her, and the damage done to the Charles was $69. The plaintiffs offered to prove that, in consequence of the injury sustained, they had lost a trip of their vessel, had been obliged to employ another sloop to transport the cargo to Mew York, by which freight to the amount of $200 was lost, and that the vessel was so badly injured, it would have sunk had not lighters been employed to take out part of the cargo, which was accordingly done, and that the plaintiffs had been obliged to pay for such service $22: all which evidence was objected to by the defendants’ counsel, on the grounds, 1. that the statute authorized a recovery only of the damage done to the vessel, and 2. that no other damages than those done to the vessel were claimed in the declaration. The evidence was rejected by the judge. On the part of the defendants, a stipulation of the plaintiffs was read, whereby it was admitted that on the 18th January, 1832 a legal tender was made by the defendants to the plaintiffs of the sum of $89,S, as the amount of damages sustained by the plaintiffs, and that a tender was made at the same time of the interest of the sum of $89, from the 1st June, 1831, together with all the costs that had accrued up to the time of the tender; and after reading such stipulation, the defendants rested. The plaintiffs thereupon offered to receive the amount of damages tendered and demanded the same, and the defendants refusing to comply with such demand, the counsel for the plaintiffs insisted that after such.refusal, the defendants were not entitled to the benefit of the tender ; but the circuit judge ruled that a party making a tender in pursuance of the provisions of the revised statutes, after issue joined, is not bound to bring the money into court, or to have it ready to pay whenever it should be demanded, but is entitled to a reasonable time to make payment after demand, and that the defendants were therefore entitled to the benefit of the tender, notwithstanding their refusal to pay. The judge charged the jury that the plaintiffs were entitled to recover only the amount paid for repairs to their vessel, and were not entitled to recover for money paid to lighters or for loss of freight; and directed the jury to find whether a tender had been made in January, 1832. The jury found a verdict for the plaintiffs for $69, and also that the defendants, on the 18th January, 1832, legally tendered the amount so found by them, with interest and costs tip to that day. The plaintiffs having excepted to the several decisions and charge of the judge, and having procured a bill of exceptions to be signed, now moved for a new trial. for the plaintiffs, insisted that the evidence offered by the plaintiffs ought to have been received. The statute gives a lien upon the vessel causing the damage, to the extent of the damage sustained. It is a remedy in rem ; the vessel is substituted for the oioner, the language of the statutebeing—if th evesselrundoion shalltherebyhave sustained damage, there shall be a lien upon the vessel causing the damage. The object of the statute was to give a remedy by a proceeding against the vessel, instead of the master or owner, who might be wholly irresponsible; and consequential damages are as much within the reason of the statute as damages for the direct injury to the vessel. for the defendants. The statute gives a lien only for. the damage done to the vessel which has been run down, and not for any consequential damages sustained by the owner of the vessel; but if it were otherwise, the plaintiffs here cannot recover beyond the damage done to the vessel, for that alone is claimed in the declaration. If further damages were intended to be asked, they should have been specially alleged. 1 Sound on pl. Ev. 344. Bull. N. P. 89.