The libel in this case was dismissed by the trial court. The
judgment of that court was reversed by the court of appeals, and
the case was remanded for assessment of damages. After assessment
and decree, it was again taken to the court of appeals, where the
decree of assessment was affirmed, whereupon a writ of certiorari
from this Court was granted.
Held that upon such writ the
entire case was before this Court for examination.
Page 166 U. S. 281
Torts originating within the waters of a foreign power may be
the subjects of a suit in a domestic court.
The facts in this case, as detailed in the statement below, do
not show a negligence on the part of the railroad company and its
agents which makes it responsible to the shipping company for the
damage caused by the accident to the
Stroma.
This was a libel
in personam, filed in the District
Court for the Southern District of New York, to recover damages
sustained by the libelant through injuries received by its steamer
The Stroma, while lying at the respondent's pier in the
port of Colon.
The undisputed facts of the case were substantially as follows:
the libelant was a British corporation and owner of the steamer
Stroma, and the respondent a New York corporation, and the
proprietor of certain piers known as piers No. 1 and 2 at Colon, in
the Isthmus of Panama, and of a slip between those piers. These
piers it was accustomed to let to vessels desiring to use the same,
and to charge wharfage therefor. Between the piers, which were
parallel to each other was a slip about 135 feet wide in which
there was water to a depth of about 20 feet at the bulkhead, to 30
feet at the end of the pier. Pier No. 2 was about 450 feet in
length, covered with a shed, in the sides of which were doors at
intervals for the transfer of cargo to and from vessels lying at
the pier.
For a few weeks prior to the arrival of the
Stroma,
respondent had been engaged in dredging the slip, and for this
purpose had employed a steam dredge 60 feet long by 30 feet wide,
consisting of a shallow scow, upon which were a steam boiler, a
crane operated by machinery, and used for hoisting the refuse from
the bottom of the slip, and a spindle about nine feet long, located
in the middle of the forward end of the scow, constituting the
pivot of the crane. On December 6, 1888, while the dredge was
anchored in the slip between the piers, the port was visited by a
storm known as a "norther," which was so violent that the vessel
foundered and sank in the slip. Respondent secured a wrecking
vessel and diver to raise the dredge and to remove it from the
slip, operations
Page 166 U. S. 282
for which were begun December 15. The diver located the dredge
as lying diagonally across the slip, the corner of the dredge being
about 22 feet from pier No. 2, but, owing to the turbidness of the
water, he did not discover the spindle. He also found the crane and
boiler detached from the dredge, and lying upon the other side,
towards pier No. 1. He marked the dredge and detached machinery
with buoys, located at the end of the crane at the platform at the
boiler, and at the two ends of the dredge -- five buoys in all.
Besides the buoys, the wrecking boat itself was secured in the slip
near the wreck, the head in, and the stern towards the sea, with
two lines running across to each pier.
The
Stroma arrived in Colon about eight o'clock in the
morning of December 31, drawing 11 feet forward and 13 feet aft,
and, as she approached the piers, her consignee raised a flag at
the end of pier No. 2 to indicate the berth she was to occupy.
There was a shed on the pier, and, in order to avail herself of the
openings in the shed in the discharge of her cargo, the
Stroma adjusted herself accordingly. She lay at the pier
during the day, discharging her cargo, and was there seen and
visited by agents of the respondent. At about six o'clock in the
evening, it was reported that there was something wrong in the
engine room, and, upon the engineer's going down, he heard a rush
of water coming into the ship. An investigation disclosed a hole in
the bilge of the ship's bottom on the starboard side, punctured by
what was afterwards discovered to be the spindle rising from the
deck of the sunken dredge. The deck of the dredge was 15 feet under
water; the spindle over 7 feet in height, and about 9 inches in
diameter. The vessel continued to fill with water, and sank.
Fifteen days later, she was raised, temporarily repaired, and then
brought to New York, where full repairs were made. A considerable
portion of her cargo was ruined, and other portions damaged.
Upon a hearing in the district court, the libel was dismissed,
42 F. 922, and upon appeal to the circuit court (in which court the
appeal was pending when the act establishing the court of appeals
was passed), the decree of
Page 166 U. S. 283
the district court was affirmed
pro forma, and an
appeal taken to the circuit court of appeals, which reversed the
decrees of the district and circuit courts, 50 F. 557, and remanded
the cause to the circuit court for an ascertainment of damages,
which were subsequently assessed in the circuit court, and a final
decree rendered for $38,861.86. A second appeal was taken to the
circuit court of appeals, which on April 19, 1894, affirmed the
decree of the circuit court, and 61 F. 408, whereupon respondent
was granted a writ of certiorari from this Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The main question in this case is one of fact, and turns upon
the point whether the accident to the
Stroma was caused by
the negligence of the respondent or that of the libelant.
1. It is claimed that, upon this hearing, we are limited to the
question of damages, for the reason that the writ of certiorari was
issued after the decrees of the district and circuit courts
dismissing the libel upon the merits had been reversed, the case
remanded to the circuit court to assess the damages, a final decree
of the circuit court for $38,861.86, and a second appeal to the
court of appeals, which had pronounced an opinion affirming the
decree of the circuit court, although no formal decree seems to
have been entered at the time the writ of certiorari was issued.
While this writ begins with a recital that "there is now pending"
in the circuit court of appeals "a suit in which," etc., we think
it is giving it too narrow a construction to hold that it was
intended to bring before this Court only the question of damages,
then pending before the circuit court of appeals, particularly in
view of the fact that the petition for the writ
Page 166 U. S. 284
of certiorari set forth the facts of the case, and claimed that,
upon those facts, the libel should have been dismissed, making no
claim whatever that error had been committed in the assessment of
damages. A difference of opinion existed in the court below upon
the question of liability, and the writ was granted to review the
whole case as on appeal from the second decree of the circuit
court, which was contrary to its first decree, and was entered in
obedience to the direction of the court of appeals.
If, under such circumstances, this Court were powerless to
examine the whole case upon certiorari, we should then be compelled
to issue it before final decree, whereas, as was recently said in
the case of
The Conqueror, ante, 166 U. S. 110, it
is and generally should be issued only after a final decree. The
case of
The Lady Pike, 96 U. S. 461, is
not in point. In that case, there had been an appeal from a decree
dismissing the libel, which was reversed by this Court, and the
cause remanded for an assessment of damages. A second appeal was
taken from such assessment, and it was held that the reexamination
of the case could not extend to anything decided here upon the
first appeal. So, in
Ames v. Quimby, 106 U.
S. 342, it was held that after a new trial had been had
pursuant to the mandate of this Court and a second judgment
rendered, no errors other than those committed after the mandate
was received below can be considered here. To the same effect are
Roberts v.
Cooper, 20 How. 467;
Supervisors v.
Kennicott, 94 U. S. 498;
Clark v. Keith, 106 U. S. 464, and
Chaffin v. Taylor, 116 U. S. 567. But
while the court of appeals may have been limited on the second
appeal to questions arising upon on the amount of damages, no such
limitation applies to this Court when, in the exercise of its
supervisory jurisdiction, it issues a writ of certiorari to bring
up the whole record. Upon such writ, the entire case is before us
for examination.
2. There is no difficulty about the jurisdiction of a court of
admiralty in this case. So far as concerns the subject matter of
the libel, it is covered by the case of
Philadelphia, Wilmington
&c. Railroad v. Philadelphia & Havre de Grace Tow Boat
Co., 23 How. 209, in which it was held that
Page 166 U. S. 285
that jurisdiction of a court of admiralty extended to an injury
received by a vessel by running upon certain piles which had been
negligently left in the bed of the Susquehannah River at Havre de
Grace.
See also Atlee v. Packet
Company, 21 Wall. 389, and 2 Brown's Civ. &
Adm.Law 203.
The fact that the cause of action arose in the waters of a
foreign port is immaterial. While in some cases it is said that a
court of admiralty had jurisdiction of all torts arising upon the
high seas, or upon the navigable waters of the United States,
The Commerce,
1 Black 574;
Holmes v. O. & C. Railroad, 5 F. 77;
The Clatsop Chief, 8 F. 167, the connection in which those
words are found indicate that they were not used restrictively, and
the law is entirely well settled both in England and in this
country that torts originating within the waters of a foreign power
may be the subject of a suit in a domestic court. The authorities
upon this subject are fully reviewed in an exhaustive opinion by
the late Judge Emmons in the case of
The Avon, Brown's
Adm. 170, wherein jurisdiction was taken of a collision occurring
upon the Welland Canal, in Canada. To the same effect are
Smith v.
Condry, 1 How. 28;
The Ticonderoga, Swabey
215;
The Griefswald, Swabey 430;
The Diana,#
Lushington 539; The Courier,
Lushington 451; The
Halley,
L.R. 2 Ad. & Ec. 3, s.c.,
L.R. 2 P.C.
193; The Mali Ivo,
L.R. 2 Ad. & Ec. 356; The M.
Moxham,@ 1 P.D. 43, 107.
Indeed, large numbers of collisions arise upon the Canadian side
of the St. Clair, Detroit, and St.Lawrence Rivers, which would not
be cognizable in our courts if the general proposition claimed by
the appellant were true, since, by the treaty between this country
and Great Britain, the boundary line is located in or near the
center of the river.
Had both parties to the libel been foreigners, it might have
been within the discretion of the court to decline jurisdiction of
the case, though the better opinion is that even under those
circumstances, the Court will take cognizance of torts to which
both parties are foreigners; at least in the absence of a protest
from a foreign consul.
The Maggie
Hammond, 9 Wall. 435;
The Belgenland,
114 U. S. 355;
The Courier,
Page 166 U. S. 286
Lushington 541;
The Havana, 1 Sprague 402;
The
Invincible, 2 Gall. 29;
The Johann Frederick, 1
W.Rob. 35;
The Charkieh, L.R. 4 Ad. & Ec. 120;
The
Vivar, 2 P.D. 29;
The Anne Johanne, Stuart, Vice Adm.
43;
Thomassen v. Whitwell, 9 Ben. 113;
Chubb v.
Hamburg-American Packet Co., 39 F. 431.
3. Was there any negligence on the part of the respondent, or,
to state it more accurately, was there any negligence with respect
to the libelant, or of which it was entitled to complain?
The owners of the
Stroma were represented at Colon by
one Andrews, who was acting as the agent for William Warriner, the
regular agent of the West India & Pacific Steamship Company,
and the consignee at Colon of the
Stroma. Learning that
the steamer was about to arrive, Andrews wrote to Mr. Abello, the
harbor master of the port and the freight agent of the Panama
Company, asking him that a berth be assigned to the
Stroma, which was expected to arrive in a day or two. In
reply, Mr. Abello came to him in person, and, as Abello says, told
him the
West Indian, also expected, could go to No. 1
wharf, but that he had no berth for the
Stroma. Mr.
Andrews suggested to him that the seaward end of the north side of
No. 2 wharf might be a suitable place, and Abello assented to his
putting her there. Andrews admits that he had seen the dredge sink
in the slip, put claims that, "at the time it sunk, it was lying
close to No. 1 wharf, to which it had been moored," the distance
between the two wharves being about 150 feet. As his office was
opposite Abello's, and but a short distance from the dock, he must
have known that a diver had been engaged in the work of raising the
sunken dredge, although he testifies that he could not say that he
saw the diver at work, and did not remember being informed that the
dredge was broken into pieces, which were scattered about in
several places in the slip. He could hardly have failed to observe
that no vessel had been moored on that side of the slip since the
dredge sank. He denies that the had seen any of the buoys which had
been placed to mark the position of the sunken dredge, and says
Page 166 U. S. 287
that he took it for granted that the railroad company, having
had a diver at work on the sunken dredge for several days, knew
whether this berth was safe or not; that he relied upon their
knowledge for a safe berth, and supposed that the wreck was on the
north side of the slip, where he saw the dredge sink. It appears,
however, that operations for raising the wreck had been progressing
for about three weeks prior to the arrival of the
Stroma.
The steamer arrived at about 8 o'clock in the morning of
December 31st, was met by a boat sent out by the agent of the
company to direct her to the dock, and was ordered by the man in
charge to go to pier No. 2, and find a berth on the north side of
the wharf. As the steamer approached, the company's flag was
displayed from the corner of the wharf, indicating the position she
should take. As she neared the wharf, Andrews spoke to the officer
in charge, reminding him of the dredge's being there, pointing him
in the direction, and then called out to the captain, "Hug in close
to the wharf, and you will clear the wreck." The testimony of the
supercargo of the
Stroma was that, as the steamer swung
along parallel with the pier, Andrews called out to the captain
"to be very careful in backing up the dock, and not permit the
stern of the ship to swing out into the dock, as there was a sunken
dredge somewhere up the dock that it might run foul of,"
and that similar instructions were given by Mr. Commager, an
employee of the railroad company, who was standing on the dock
awaiting her arrival.
This testimony is corroborated by Commager himself, who swears
that when he went down to meet the steamer, he reminded Andrews of
the danger, saying, "I suppose you have not forgotten about that
dredge," pointing out its position, and that Andrews did not answer
him, but spoke to some officer of the boat, calling out and
reminding him of the dredge being there. This testimony is also
corroborated by that of the witness Muller, also an employee of the
railroad company, who heard the conversation with Commager. It
would appear that at this time, the buoys which had been placed to
mark the position of the wreck were still visible;
Page 166 U. S. 288
at least four witnesses swore to that effect, and there was
practically nothing to contradict them. But as they do not seem to
have been at all conspicuous, we do not think that negligence can
be imputed to any one for not observing them.
Had the respondent undertaken, through its agent, to provide a
berth for the
Stroma and see that she was properly moored,
it would probably have been responsible for this accident; but it
appears that Abello, the company's agent, on being applied to for a
berth, merely assented to a suggestion made by Andrews that the
Stroma was a small steamer, and that he could very easily
put her on the north side of No. 2 pier, on the other side of the
obstruction (meaning thereby the seaward end of the wharf), to
which Andrews replied that, "if you will do that, there will be no
objection to your doing so." He further says that in the same
interview, Andrews told him that he had seem the dredge sink; that
he had been on the wharf when she had sunk in the morning, and that
he had witnessed her going down. Not only had Andrews undertaken
himself to bring the ship to a berth, but he admits it to have been
the custom of the place for the railroad company to leave the
putting of the ship at the berth entirely under the management of
the agent of the ship. Under such circumstances, it is clear that
Andrews, knowing that the dredge was sunk somewhere in the slip,
should have made further inquiries as to its exact location, since
from their conversation, and from what Abello knew of Andrews'
knowledge, he had a right to assume that Andrews had informed
himself of the danger of the
Stroma lying there, and of
the spot where the dredge was sunk, or at least that he would look
for the buoys and ascertain for himself.
In all the cases in which wharfingers have been held for
casualties of this kind, the vessel has approached the slip in
ignorance of the real condition of the bottom, and the respondent
has been held liable upon the theory that it was his duty to
furnish a safe berth.
This test is manifestly inapplicable where the agent of the
vessel is already acquainted with the danger and assumes the
responsibility of providing her with a safe berth. In this
case,
Page 166 U. S. 289
there was no misrepresentation or concealment, and, if Abello
did not point out the precise location of the dredge, it was
evidently because he supposed, and had a right to suppose, that
Andrews knew it already, or would make further inquiries if he
deemed it necessary. It is altogether probable that both parties
assumed that the
Stroma, being a small steamer, drawing
only 13 feet of water, when there were 22 feet of clear water above
the deck of the dredge, could safely lie inside, if not immediately
over, the dredge, and that both overlooked the existence of the
spindle; but if Andrews was apprised of the danger which the
Stroma might incur by lying there, it is scarcely just to
impose a liability upon the respondent for the consequences of the
spindle, the existence of which did not appear to have been known
either to Andrews or to Abello, and which, if known, neither party
had considered of sufficient importance to specially provide
against. It would doubtless have been more prudent for Abello to
have informed Andrews fully and explicitly of the danger he was
incurring, but we think that, under the circumstances, he
discharged his legal obligation.
As the diver, who was sent down to locate and buoy the dredge,
never discovered the spindle, owing to the extreme turbidness of
the water, it is difficult to see how negligence can be imputed to
the respondent for not having warned the master of the steamer
specially against it. Indeed, so little appears to have been known
about it that when a consultation was called after the accident
occurred at which Mr. Andrews and Mr. Dennis, an associate
superintendent of the respondent, took part, no one of them was
able to surmise what had caused the disaster, the general opinion
seeming to be that the
Stroma had settled upon a pile or a
piece of machinery dropped by a Spanish steamer. No one suspected
that the dredge had caused the damage until the diver and
surveyors, on the following day, reported the fact. If, as we have
already found, Mr. Andrews was either apprised of, or put upon
inquiry as to, all the acts with regard to the location of the
sunken dredge, respondent cannot be chargeable with negligence
because it did not warn him specially against
Page 166 U. S. 290
the spindle, since it had not been informed of its existence by
the diver, who does not seem to have been guilty of any negligence
in not discovering it, and for whose negligence it is at least
doubtful whether respondent would have been liable.
Inasmuch as we are of opinion that the circuit court of appeals
was in error in holding the respondent liable,
The decree of the circuit court of July 7, 1891, must be
affirmed, and the cause remanded to that court, with directions to
dismiss the libel.
