Newton v. Stebbins

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of the Uijited States for the Southern District of New York.

The suit was commenced in the District Court in admiralty against the steamboat New. Jersey, to recover damages arising from a collision on the North River, in which the sloop Hamlet was run down arid sunk, in October, 1846.

The. libel charges that the Hamlet, a vessel laden with a cargo of flagging stones, and. of ninety tons burden, was proceeding down the river for the port of New York,,and had reached a place called Blue Point, on said river; that after passing that point the wind failed, and the sloop proceeded with the force of the current, and a trifling wind, at the rate of from one to two miles the hour. That on her arrival at that point, the person in charge of the sloop descried the New Jersey coming up the river at the rate of twelve or fifteen miles the hour, and nearer the easterh shore of said river than the sloop; upon which he directed the man at the helm to head her more to the west shore, which was done. That when the steamboat arrived within a short distance of the said sloop, she altered her course to the westward, and attemptéd to cross the bows of the sloop so as to pass between her and the west-' ern shore, and in the act of passing, struck her bowsprit, cajr*. rying away some twelve feet of the forward part of the vea* sel, in consequence of which she immediately filled and sunk.' That at the time of the collision it was impossible for the *605Hamlet to get out of the way of the steamboat, having comparatively little headway, and being near to the western shore; and that there was room enough for the steamboat to have passed east of her, along the eastern shore of the river.

. The answer of the respondent is, that, for three or four miles below the point where the collision happened, the New Jersey was coming up the river along the western shore, and westward of the course of the sloop, with a tow on her. larboard of some two hundred tons burden; that it was slack water, and the wind fresh from the west; that she did not cross the bows of the sloop, nor the course she was pursuing at the time the Hamlet first appeared in sight. But -that the collision arose in consequence of the sudden luffing of the sloop, by. the'mismanagement of the persons in charge of her; and that by reason of said improper manoeuvres she ran her bowsprit into the steamboat, thereby doing great damage to her..

These are the allegations of the respective parties in the libel and answer, as to the collision complained of. And the first observation we have to make is, that, assuming the position and course of the New Jersey to be according to the statement in the answér, it by no means exonerates her from responsibility, unless the other part of it is also maintained, namely, that it happened in consequence of the false movement of the Hamlet at the time. For assuming that the steamboat was coming up along the western shore, and waft pursuing that¡ course from the time she was first descried by the hands on board the sloop, still the latter had a right to persevere in her course down the river, notwithstanding the position and course of the New Jersey; and the duty devolved, upon her, according to the established nautical rule, to take the proper precautionary measures to avoid the danger.

The fact, therefore, that the New Jersey was ascending the river on the western shore for some distance below, and had not suddenly taken a sheer across from the .eastern side after having-pursued it till within a short distance from the point where the Hamlet was descending, is a matter of no great importance.

The real question in the case is, whether or not the accident happened, notwithstanding every proper precautionary measure had been taken on the part of the steamboat to pass the sloop in safety, in consequence of an improper movement of that vessel by the mismanagement and unskilfulness of the person in charge of her If it did, then' the damage is attributable to her own inattention and want of skill, and not to the steamboat. This must o course depend upon the evidence.

*606And on looking carefully through it on this .point, on which, it must be admitted, it is not entirely reconcilable, and after the best consideration we have been able to give it, we feel bound to say, that this allegation in the. answer is not maintained. On the contrary, the weight of the evidence is, that no substantial change in the course of the sloop', in descending the river, took place, after the precautionary one of heading more towards the western shore, when the New Jersey was first descried, some three or four miles below.

!. This' is the testimony of the two hands in charge of her at the time, confirmed by that of the masters of vessels in the vicinity, and who witnessed the. collision. The only contradictory evidence is to be' found in the testimony of the pilot of the New Jersey, and.in some loose conversations of the two hands after the accident had occurred, which, as detailed, is very general and indefinite, and not- entitled to much consideration. This conclusion is also strengthened by the concomitant circumstances. The sloop was heavily laden, and under little . headway, the wind being light and baffling, and it is difficult, under such a state of facts, to believe that her course could , have been suddenly .changed, by the action of the helm, to the extent, and within the time, supposed by the pilot.

We think, therefore, that the collision arose from the fault of the person in charge of the New Jersey, in not taking proper precautionary measures to avoid the sloop while endeavoring to pass her.

We cannot omit to remark, before leaving the case, that the pilot of- this vessel was greatly to blame in not having slackened her speed as he approached the fleet of river-craft which was slowly descending this stretch of the river at' the time it opened to his view. The channel is about half a mile wide at this, point, and there were some seven or eight vessels coming down, all within; a reach of less than two miles, and, .from the state of the*wind, not in a condition to make effectual manoeuvres with' a* view to avoid immediate danger. And yet the clear weight of the evidence is, that the steamboat continued her .speed, passing several of them, which narrowly escaped the danger, until she reached the sloop in question, at a rate of from eight to ten knots the hour.

It is manifest to common sense, that this' rate of speed, under the eircumstapces stated^ exposed these vessels to unreasonable' and .unnecessary peril; and we adopt the remark of the court in the case of the Rose (2 Wm. Rob. 3), “that it may be a matter of convenience that steam-vessels should proceed with great rapidity, but the law will not’justify them in proceeding'with such rapidity, if the property and lives of other persons are thereby endangered.”

*607It is a- mistake to suppose that a rigorous enforcement of the necessity of adopting precautionary measures, by the persons in charge of steamboats, to avoid damage to sailing vessels, on our rivers and internal waters, will have the effect to produce carelessness and neglect on the part of the persons in charge of the latter. The vast speed and power of the former, and consequent serious damage to the latter in case of a collision, will always be found a sufficient admonition to care and vigilance on their part. A collision usually results in the destruction of the sailing vessel, and, not unfrequently, in the loss of the lives of persons on board.

We think, also, that the New Jersey was in fault for not having a proper look-out at the time of the .collision. The pilot at the wheel was the only one, as no other person appears'to have been above or on deck. It is apparent from the evidence, that, with a competent look-out, and slackened speed of the steamboat, there could have been no great difficulty in passing this fleet of river-craft in safety. The disaster,, in all probability, happened from a neglect to observe these proper precautionary measures.

We think the decree below right, and that it must be affirmed.

dissenting.

Had the cases just decided been, according .to my view, regularly within the cognizance of the District.and Circuit Courts, and therefore properly before this tribunal, upon the appeals taken, I could have no objection to the disposition made of' those cases. The evidence appears to place the delinquency, or the wrong done, where this court has pronounced it to be; and it can scarcely be doubted, that the rules which have been prescribed for the government of vessels, propelled either, by sail's or by steam, when crossing each other’s tracks, will conduce to the preservation of both life and property. My dissent from the decision in these cases results, from considera-' tions much highenthan any that connect themselves with the mere adjustment of private controversies.- It is a deduction from my understanding of the constitutional power of this court, and of the courts whose decisions we have under review, to adjudicate upon the rights of the parties, in the exercise of that species of jurisdiction which has been, as to these cases, asserted and sanctioned. That jurisdiction I feel constrained to.deny. I know that my opinions, relatively to the sources and- the extent of the admiralty jurisdiction of the federal courts, have not accorded with those of the majority of this, court; but on these, as on all other subjects involving, the integrity of the'Constitution (the only true foundation of every *608power in the federal, government), I hold myself bound, with respect to differences of opinion, not to yield an acquiescence which, in matters of minor importance, would be cheerfully conceded. My own opinions relative to the admiralty jurisdiction vested by the Constitution in the courts of the United States have been heretofore too fully declared to render their repetition here in detail either proper Or necessary. I content myself with a reference to them as expressed in the case of The New Jersey Steam Navigation Co. v. The Merchant’s Bank, 6 Howard, 395, and in my concurrence with the opinion of Justice [Woodbury in the case of Waring v. Clarke, 5 Howard, 4&7, and with reasserting the positions there maintained ; viz. that the civil jurisdiction in admiralty of the courts of the United States, in tort or in contract, (with the anomalous exceptions of seamen’s wages arid hypothecations,) is limited to transactions occurring on the high seas, and embraces no transaction occurring either on the land, or within the bays, rivers, havens, ports, harbors, or other places within the body or jurisdiction of any county, and that cases of seizure under the revenue laws do not spring from any regular class or head of admiralty powers. My conclusions, thus stated, are fortified by the strong desire to preserve in fullest vigor that admirable institution of our Anglo:Saxon ancestors, — whose elevating influence on the character eyen of the humblest man is perceived in his consciousness that he forms a part, an important, nay, an indispensable part, in the administration of the laws, — the venerable trial by jury; and, in the next place, by my conviction of the duty incumbent on all to maintain, with directness and in good faith, those distinctions and distributions with respect to the judicial power which the Constitution and laws of the United States have ordained, — distributions which the power now claimed and exerted appears to confound and overthrow. Thus, in the second section of the third article of the Constitution, in a definition of the judicial power of the govern: ment, in which definition the admiralty jurisdiction is explicitly comprised, it is declared that the judicial power shall extend “to controversies between citizens of different States.” This distribution of judicial power by the Constitution, Congress have carried into execution by the eleventh section of the Judiciary Act, and this court in a series of decisions has maintained. • Can it, then, comport with a just interpretation, either of the Constitution or of the act of Congress, or with the decisions of this court made in conformity with both, that they should all be' annulled by a seeming evasion ? Can it possibly be right thus summarily to abrogate the jurisdiction of the State courts over their own territory and their own citizens ?' If these things can *609be done, it follows, of course,-that the trial by jury, and the requisite as to. citizenship of parties, drdained both by the Qonatitution and laws, may be abolished by the mere will ofpersons interested, or by the fiat of a tribunal by which neither citizenship nor trial by jury is held in regard. It would be difficult to adduce a more striking example of the irregularities here pointed , out, than , is furnished by one of the cases now ■before us, — that of Newton v. Stebbins. This is a case which the evidence shows to have occurred between citizens of the same .State, upon the narrow waters, and far within the interior of the State; and' necessarily, therefore, within the body of a county of ..the State. It presents within that locality an instance of simple tort, the proper subject of trespass or case at comrpon law % yet this case, without regard to locality or citizenship, is wrested from the, tribunals of the State and the common law. modes of trial, and transferred to a tribunal whose peculiar and appropriate jurisdiction, we are told by the English authorities, attaches only where there is no vicinage from which the pais can be summoned. I am compelled, therefore, to, deny to the admiralty the constitutional authority to take cognizance, of these cases.

Order.

This cause came on to be heard oil the transcript of the record from' the Circuit Court of .the United States for the Southern District of New York, and was argued by counsel. On consideration whereof, it is ordered and decreed by this court, that the decreee of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs and damages at the rate of six per centum per annum.