Simpson v. Hand

1. It is an undoubted rule that for a loss arising from mutual negligence, neither’party can recover in a court of common law. 2. And this rule governs the ease of shippers of goods on board of vessels which have come into collision, to the injury of the goods, as well as the owners of the vessels themselves. 3. An action cannot be maintained, therefore, by the owner of goods on board of a vessel, against the owners of another vessel to recover damages for an injury done to the goods by the collision of the two vessels; if there have been mutual negligence in the conduct of those who have had the vessels in charge. 4. In an action to recover damages for injury done to goods on board of a vessel while she was lying at anchor in the river Delaware, by a vessel coming up the river in the night time, it was held that if the anchored vessel was moored in the channel without a visible light burning at the time, or if her watch was not on deck, and did not do what was customary for the purpose of avoiding a collision, there was such negligence as to bar the action, though there might have been negligence on the other side; and that the burthen of proof lay upon the plaintiff.

This was an action on the case brought in this court by M. H. Simpson and G. Harrison Otis, trading under the firm of Simpson & Otis, against Joseph Hand and Rowland Johnson. The plaintiffs were the owners of certain goods which had been shipped at Philadelphia on board of a schooner called the Thorn, to recover damages from the defendants, who were the owners of a brig called the William Henry, for injury done to these goods by the William Henry’s running into the Thorn, while the latter was lying at anchor in the river Delaware, about one o’clock in the morning of the 27th of November, 1832. On the trial before Kennedy, J., at a court of Nisi Prius, held at Philadelphia on the 17th of November, 1838, it was proved that the collision took place, and that damage to the Thorn and her cargo ensued. There was contradictory testimony in respect to some of the material facts of the case, but as the substance of the evidence is given in the opinion of the court, it is not necessary to state it here. The defendants contended that, the misfortune was wholly attributable to the negligence or misconduct of the master and crew of the Thorn; and specified the following items of negligence or misconduct, and produced persons for the purpose of sustaining them. 1. That the Thorn was anchored in the channel, which it was conceded was an improper position. 2. That she lay at anchor without hanging out a light. 3. That she lay at anchor without an anchor watch, who could, ■ by the aid of the helm, have changed the position of the vessel so as to have avoided the contact. 4. That even if there had been a light suspended from the Thorn, as some of her crew swore, yet, as they swore it was suspended behind the mainmast, it was not visible to vessels coming with, and actuated by the tide, (the only quarter from which danger was to apprehended,) as the vessel riding at anchor would present her bow to the current, and keep her light hid behind the masts to those vessels running with the current. The plaintiffs, on the other hand, contended, and produced witnesses for the purpose of sustaining them, that the Thorn was not anchored in the channel, that she did hang out a lantern on her main peak halliards, (an appendage to and behind the mainmast;) and that there was an anchor watch duly placed. They further attributed the collision to the negligence and misconduct of the defendants; and contended 1. That it was improper to navigate the river at night. 2. That if the look-out on board the brig had, immediately upon the discovery of the Thorn, given a particular order to the helmsman, the collision would have been avoided. The learned judge charged the jury in substance as follows: “ This action is in case, brought by the plaintiffs against the defendants, as the owners of the brig William Henry, to recover compensation for a loss sustained by the former, in the value of a quantity of Spanish hides belonging to them, on board the schooner Thorn, in the river Delaware, on her way from this to New York; alleged to have been occasioned by the negligence of those emplbyed on board the brig William Henry, by the defendants, for the purpose of navigating and directing her. The injury complained of was done by the brig William Henry, on the night of the 26th of November, 1832; while coming up the river under sail, in running foul of the schooner Thorn, when at anchor near Thompson’s Point, on the Jersey shore. By this collision, it seems, that the schooner was so much injured as to let the water of the river in, in such quantity as to immerse the hides completely, whereby they were greatly impaired in their value. The right of the plaintiffs to recover in this action is grounded, as you must have perceived, upon the neglect of the captain and crew of the Henry to perform their duty; that is, to navigate her in such a manner as to avoid causing all needless and unnecessary injury to the Thorn, and the property on board of her. It is not for any wilful wrong or tortious act of tljte captain and crew on board the Henry that this action is brought or can be sustained. For if the act complained of, that is, the blow given by the Henry to the Thorn, were wilfully caused by those entrusted with the management of the Henry, the defendants, though owners of her, are not answerable for the damage or loss occasioned by it. They are only responsible for injuries arising from the negligence or unskilfulness of those employed to navigate and manage their vessel; and not for any wilful act done by them, amounting to a trespass; notwithstanding it may have occasioned an injury and damage to the plaintiffs. It may, however, be proper to notice, in the first 'pláce, some things introduced into this cause, which, as it appears to me, are not intimately, if at all, connected with the merits of it. It has been shown that the plaintiffs effected an insurance on the hides- in question witlvthe Philadelphia Insurance Company; and thence it has been argued, by the defendants’ counsel, that the plaintiffs are not without a remedy for the loss they have sustained, because the Philadelphia Insurance Company are liable to make it good to them, under the policy of insurance; it being a sea damage, and therefore expressly included within the terms of the policy. Admitting this to be so, I, however, do not conceive that it can or ought, with propriety, to have any influence upon your minds in forming your verdict; because, it is only on the ground of neglect, or a want of exercise of due caution and skill on the part of those employed by the defendants to navigate their vessel, having been clearly proved . and shown to you, that the defendants in this action can be made liable to the plaintiffs. And if it be that such neglect or want of caution and skill, has been clearly shown as would render the defendants liable to make good the loss sustained by the plaintiffs, there is no reason why the liability of the Philadelphia Insurance Company, to make good the sanie loss under the policy which they subscribed, should be any defence for the defendants here, or exempt them from their liability in this action. It was not throug'h or by their means, or at their cost, that the policy was effected, so as to secure and indemnify the plaintiffs against the loss that has accrued to them. It was effected and paid for by the plaintiffs themselves, without the least expense to the defendants; and the plaintiffs are at liberty to use it or not, as they please, until they shall have obtained satisfaction. A plaintiff may have two or more remedies for the same injury, and pursue one or more of them at his election, until he shall have obtained redress. It has also been said that the defendants ought not to be made answerable for the error merely of those employed by them to navigate the Henry; but only for fault or blame. To this, however, I cannot give my assent. The defendants are only called upon to answer here in a civil point of view, and not criminally; that is, to compensate the plaintiffs for the loss, if any, which they have sustained by means of the negligence or want of due caution or skill, on the part of the servants or those in the employment of the defendants. It is certainly the duty of every ship-owner, when he engages hands to navigate and take the charge of his vessel, to ascertain beforehand that they are possessed of sufficient skill for such purpose, as well as vigilance in exercising due caution and care in the discharge of that undertaking; and if it should happen that injury and damage shall accrue to any third person, from deficiency in the former or delinquency in the latter, he will be liable to respond in damages to such amount as the jury, under all the circumstances, shall think just and equitable. I come now to speak of the principles which I consider applicable to the navigation of the Delaware river; and which, it appears to me, ought to govern and regulate the conduct of all those engaged in it. This river, being the only navigable communication between the city of Philadelphia, a place of vast commerce and business, and the ocean, must be considered as a great and leading highway, open to all nations in time of peace. When looked upon as such, its channel may be thought to be sufficiently narrow for this purpose, and as having nothing to spare. Efence it becomes of the very first importance, that the rules and regulations adopted, in regard to the navigation of it, shall be such as will best promote the end and design of its being used as a highway, by means whereof the commerce of the city of Philadelphia shall be increased and extended, if possible, to all parts of the world. To effect this great object, it is very obvious that the more secure the navigation of it is made, for all those who venture their property on it, the greater the inducement will be to do so. But this cannot reasonably be expected without an exercise of due skill, caution, and care, on the part of those concerned in directing the navigation of the river. What, then, under this view, was the duty of the Thorn in coming to anchor? First. To have selected a suitable situation, and, in doing so, to have got out of the channel, if practicable; for the channel of the river not being very wide, anchorage in it would be the more likely to interfere with the passage of vessels, and to endanger the safety of persons and property, by means of collision. Secondly. If she anchored in the channel, and the night was as dark as the witnesses say it was, a light ought to have been hung up in some conspicuous part of her, so that it might have been seen as far off, or as early as possible, by those sailing or passing in the river. This, it would seem, according to the testimony of most of the witnesses examined to this point, is done generally; but when the vessel has anchored in the channel, it ought never to be dispensed with. Thirdly. In this latter case, a watch ought also to have been placed on the deck; so that vessels approaching might be discovered by him, and notice given, to do whatever might be necessary, in order to avoid collision, if found to be in the way of the vessel sailing: and, In the fourth place, to have got out of the way of the William Henry for this purpose, as far as she could, by shearing to one side. In order, however, to attain the grand object in view here, it is not sufficient that all these things should be attended to and observed merely by those on board the vessel at anchor; for you will readily perceive, that the observance of a duty by those having the sailing vessel in charge, in some degree corresponding to those laid down for those on board the vessel at anchor, will greatly promote and tend still more effectually to secure it. It is doubtless the duty of the vessel under sail, having no intention of coming to anchor, to keep the channel or course usually adopted and pursued by vessels under sail; also to have a light hung up when her sails are not set or 'spread; in such manner as to apprise or give notice to all concerned or interested in her approach; and provide, if necessary, for their safety, by avoiding collision.. Again, to have a watch on deck to keep a sharp look out, that he may give notice of any apparent danger from collision with any other vessel, in order that those having the charge of each vessel, shall use their utmost endeavours or exertions to prevent it. A proper application of these principles to the facts of this case, as you shall find, will, it is apprehended, bring you to a correct result. For instance; if you should find that the Thorn was lying at anchor altogether out of the channel and track in which vessels navigating the same are conducted, it would be immaterial whether she had a light and watch on deck or not; and being struck by the brig William Henry in such situation, the whole blame would attach to the latter, in having departed from her proper course; and the defendants, as owners; would be liable to make good the loss sustained by the plaintiffs. So, although you should find that the Thorn was in the channel, it not being safe or practicable for her to get out of it, yet, if she had a light, suitable for the purpose, hung up in some conspicuous part, so as to be visible in the way I have already described, and a watch on deck to keep a look out, and the hands on board did their , duty, those on board and having charge of the William Henry, would seem to be chargeable with negligence, at least, in not having discovered the Thorn and avoiding her, and thus render the defendants liable as the owners of her. Again, if, without this being done in the Thorn, she was discovered by those having the charge and. direction of the Henry, in time to have avoided the collision, but they neglected to use the proper exertion for doing so, until it was too late, the defendants would be liable in like manner. But if, on the other hand, you should find that the Thorn was anchored in the channel, without having placed a light .and watch on deck, and was not discovered by those having the direction of the •Henry, until it was too late to avoid the' collision, the defendants would not be liable;” The jury found for the plaintiffs; upon which a motion was made for a new trial, and the following reasons were assigned. “ L The plaintiffs contended that the defendants had no right to sail the William Henry up the Delaware bay after dark, but were bound to anchor.: they produced no evidence whatever of negligence or misconduct but this ; on the contrary, ft vyas fully proved that the William Henry had a skilful pilot, a competent crew, and that she kept a strict look out; under these circumstances, the finding of the jury must have been based upon the false principle that the vessel ought not to have been navigated by night. 2. Although the plaintiffs contended to the jury for the principle that the vessel should have lain at anchor during the night, yet- the judge did not, in his charge to the jury, directly negative that proposition. 3. 'The William Henry was navigating the river, as was proved without contradiction, with a strict and vigilant look-out; such, however, was the obscurity of the night that the Thorn (the injured vessel) was not seen until she was only a few rods distant: some evidence was given that if the look-out had, at the instant of discovery, given a particular order to the helmsman, the collision or impact would have been avoided. The defendants contended that the want of presence of mind in the look-out, in a sudden and alarming exigency, and in consequence thereof not giving the most judicious order to the helmsman, or, if given, its not being heard, was not such- negligence or fault as would make the owners of the brig William Henry liable for the consequences. The judge charged against this position of the defendants. 4. Because the judge declined to charge the jury that in case they believed that the collision was caused by the negligence or fault of both parties, that then the damages should be apportioned between them; but on the contrary, negatived this proposition. 5. Because the verdict of the jury was against the law and evidence.” The case had been argued at December Term, 1838, by Mr. F. W. Hubbell and Mr. J. S. Smith for the defendants, and Mr. H. Binney, Jr., and Mr. J. R. Ingersoll for the plaintiffs; and now came on for a re-argument.