1. When a vessel is sailing in close proximity to other vessels,
the fact that her hands are engaged in reefing her mainsail is no
sufficient excuse for failure to keep a lookout or to take such
precautions as are needful to avoid collisions.
2. One of several general owners who sails a vessel on shares,
under an arrangement between himself and the other owners whereby
he in effect has become the charterer, hiring his own crew, paying
and victual ling them, paying half the port charges, retaining half
the net freight after the port charges are taken out, and paying
the other half to the general owners, is to be considered the owner
"pro hac vice," and as such is liable personally for a
tortious collision with another vessel.
3. Though sued jointly with the other general owners in a libel
which does not describe him as owner
pro hac vice, a
decree may be made against him alone.
By an Act of Congress of March 3, 1851, it is enacted:
"
Section 3. That the liability of the owners of any
vessel for any loss, damage, or injury by collision occasioned
without the privity of such owners shall in no case exceed the
amount or value of the interest of such owners respectively in such
vessel and her freight then pending."
"
Section 5. That the
charterer of any ship or
vessel, in case he or they shall
man, victual, and
navigate such vessel at
his or their own expense,
shall be deemed the owner of such vessel within the meaning of this
act, and such ship or vessel, when so chartered, shall be liable in
the same manner as if navigated by the owners thereof."
With this statute in force, three schooners -- the
Capes, the
Huntley, and the
Brothers --
were sailing towards New York along the New Jersey coast not far
from Sandy Hook. There was nothing special in the ownership of the
first and last named of the vessels. The
Huntley, however,
was owned by one S. S. Hammond and eight others as general owners,
Hammond alone sailing her, he doing this on
Page 79 U. S. 409
shares, hiring, paying, and victual ling his own crew, paying
half the port charges, retaining half the net freight afterwards,
and paying to the general owners the remaining half.
The collision which was the cause of this suit occurred on a
winter morning of 1860. All three vessels were heavily laden, and
were sailing close-hauled, having the wind about north-northwest,
blowing fresh and fitfully. The general direction of their courses
was about the same. The vessels were near each other, the
Capes in advance, and perhaps somewhat the most out toward
sea, the
Huntley next, and the
Brothers last and
nearest to the shore. After sailing thus from eight in the morning
until after nine, the wind having veered more northwardly, all the
schooners tacked toward the northeast, thus standing off shore.
When the
Huntley tacked to stand out, she lowered her
mainsail in
image:a
order to take in reefs, but the
Capes and the
Brothers continued to carry the same sail they had carried
before. In consequence of this, the
Brothers passed the
Huntley, though on the leeward side, at the distance of
about one hundred yards, running at the speed of seven or eight
knots, while
Page 79 U. S. 410
the speed of the Huntley, carrying her foresail and jib and
falling to the leeward, was only four or five. All the vessels ran
on the off-shore tack some fifteen or twenty minutes, which carried
them about two miles out to sea. The
Capes then went about
and stood in shore on her starboard tack, the
Brothers
following very soon after. Whether the
Brothers had beaten
out her tack when she thus came about was not clear upon the
evidence, though the weight of testimony perhaps tended to show
that she had. However this fact was, before the
Brothers
could gather headway after tacking, the
Huntley -- running
freely on the off-shore tack, four or five knots an hour, foresail
and jib set -- ran into her head on, striking her abaft the main
rigging and causing her to sink in about half an hour. The diagrams
on p.
79 U. S. 409
will perhaps better illustrate positions at different times.
At the time of the collision, all hands on board of the
Huntley were engaged in reefing the mainsail. When the
Brothers tacked to stand in shore, the
Huntley
was astern of her, not less than five or six hundred yards, the
Huntley being slightly to the windward. There was no
lookout on the
Huntley; no one on board of her saw the
Brothers when she tacked, or when she was in stays, or
noticed her at all after her tacking until it was too late to avoid
the collision. Though hailed from the
Brothers and told to
keep off, no attention was given to the hail, and the evidence left
no doubt that had those in charge of the
Huntley been
watchful, had they seen the
Brothers when she went about,
it would have been entirely in their power, by porting their helm,
to pass under the
Brothers' stern.
The owner of the
Brothers (Thorp) hereupon filed a
libel in the District Court of New York
in personam
against Hammond and the eight others, general owners of the
Huntley, averring that the
Brothers had been
negligently run into and sunk by the
Huntley in
consequence of the mismanagement of those on board the
Huntley and in charge of her. The libel, which averred
nothing about the ownership of the
Huntley except that she
"was owned by and in possession
Page 79 U. S. 411
of the respondents," claimed $12,000 damages, as the value of
the
Brothers.
The owners of the
Huntley set up as defense:
I. That they were, in fact, only her general owners, and that
she was commanded, sailed, and exclusively managed by Hammond under
an agreement made between him and them; that he was to have entire
control and management of her as charterer on and for his own
account; that he was the owner
pro hac vice at the time of
the collision, and, under the Act of Congress of March 3, 1851,
alone responsible for the catastrophe.
II. That the entire value of the
Huntley did not exceed
$5,000, and that her freight was but $424.
III. That on the merits, the
Brothers was in fault
herself.
1. In not beating out her tack.
2. In improperly turning about when the
Capes turned
about, whereby, with a slight variation of her helm, she could have
easily passed under the stern of the
Capes.
3. In that when the
Brothers turned about on the
inshore tack, and whose direction was across the
Huntley's
bow, the
Brothers knew that the
Huntley's crew
were engaged in reefing her mainsail, by reason of which she was in
a crippled condition, and that, in disregard of the rights and
condition of the
Huntley, the
Brothers had placed
herself in such a position as to render a collision inevitable. The
respondents brought witnesses to show that it was a custom of the
sea not to have a lookout in the daytime, and that it was the duty
of all vessels to keep out of the way of a reefing vessel. But
their evidence was contradicted by the libellants.
The district court dismissed the libel. That court considered
that as Hammond, a part owner, was on board and had charge of the
vessel at the time of the collision; as he had the exclusive
possession and control of her, and manned, victualed, and navigated
her at his own expense, he was to be deemed a charterer within the
meaning of the act of Congress of March 3, 1851, which exempted the
owners from personal liability. And that as Hammond, the
captain,
Page 79 U. S. 412
was sued merely as a part owner, and not as the charterer,
wrongdoer, or active cause of the disaster, and as his liability
was placed, by the libel, on the same ground as that of the other
owners, the suit necessarily stood or fell as to all the
respondents. The court therefore thought the statute a bar to the
suit in this form, and dismissed the libel. This decree being
affirmed by the circuit court, the case was brought here on
appeal.
Page 79 U. S. 413
MR. JUSTICE STRONG delivered the opinion of the Court.
It is plain, as respects the merits of this suit, that the
collision
Page 79 U. S. 414
was the result of gross carelessness in the management of the
Huntley. Knowing, as the master did, that there were two
schooners in close proximity to his own; knowing also, as he must
have known, that they were beating out their tacks, and would
probably soon come about and put in shore, there can be no excuse
for his failure to keep watch of their movements and to notice the
change of course by the
Brothers in season to port his
helm and thus pass under her stern. That the hands on the
Huntley were engaged in reefing the mainsail certainly did
not relieve her from all obligation to observe the commonest
precautions against inflicting an injury upon a neighboring vessel
ahead, especially when the movements of that vessel were precisely
what ought to have been anticipated.
The respondents, however, insist that it is a custom of the sea
not to have a lookout in the daytime or while reefing, and they
have produced witnesses to prove such a custom. But the evidence
falls far short of showing that such a custom exists generally, and
if it were proved, it would not be a reasonable one sufficient to
justify the absence of a lookout in such a case as this when the
Huntley was in close proximity to two other vessels, both
beating to the windward and one of them at least expected soon to
cross her bow.
It has not been claimed that the collision was the result of
inevitable accident, without fault, but the respondents contend
that it was due to the mismanagement of the
Brothers
rather than to that of the
Huntley. Their argument is that
the
Brothers was under full sail and perfectly
controllable, while the
Huntley, being under head sails
only, with her hands engaged in reefing, was a crippled vessel, and
therefore one to be favored. Hence it is inferred that it was the
duty of the
Brothers to keep out of the way. It may be
conceded that when two vessels are approaching each other, the one
crippled and the other in good manageable condition, it is the duty
of the latter, if possible, to give way to the former. But the
Huntley can in no sense be said to have been a crippled
vessel. She was running freely on her
Page 79 U. S. 415
off-shore tack, four or five knots an hour, with her foresail
and jib set. She obeyed her helm perfectly, and though she may not
have been able to come about as easily as she would had her
mainsail been set, there was not the slightest difficulty in the
way of her taking care of herself and avoiding collision with other
vessels. The most obvious maneuver, that of porting her helm, was
not embarrassed at all by the fact that her mainsail was not
spread.
It is further urged that the
Brothers had not beaten
out her tack when she came about, and hence that her putting her
helm down and turning in shore when she did was a fault which, by
throwing her in the way of the
Huntley, caused the
disaster. Was it, however, a fault? It is by no means clear from
the evidence that the
Brothers had not beaten out her tack
fully. On the contrary, the evidence that she had appears to us to
preponderate. But whether she had or not, it is fully proved that
her coming about when she did was rendered proper, if not
necessary, by the fact that the
Capes changed to the
starboard tack. The
Capes was the leading vessel, and
while it is possible that the
Brothers might have ported
her helm and gone astern of her, it is obvious that the safer
course was to tack when the
Capes tacked. And there was no
reason to apprehend that the
Huntley, following astern at
the distance of five or six hundred yards and very little, if at
all, at the windward, would be embarrassed by her tacking. She had
passed the
Huntley close on the latter's lee side, at a
distance of not more than one hundred yards, and the
Huntley, carrying on her foresail and jib, had been
constantly falling off to the leeward. Abundant sea room was
therefore left for the following vessel. It required only that the
Huntley's helm should be ported half a point to carry her
safely past the
Brothers. We think, therefore, the whole
fault of the collision is justly chargeable to the
Huntley.
It remains to inquire whether the respondents, or any of them,
are personally responsible for the injury. They were all general
owners of the schooner at fault at the time when
Page 79 U. S. 416
the collision occurred, but the evidence shows that she was
commanded, sailed, and exclusively managed by S. S. Hammond, one of
them, under an arrangement made between him and the other owners,
whereby he had in effect become the charterer of the vessel, to be
employed on his own account, without the management, control,
restraint, or possession of the other owners. He sailed the vessel
on shares, hiring his own crew, paying and victual ling them,
paying half the port charges, retaining half the net freight after
the port charges were taken out, and paying to the general owners
the other half. It is clear, therefore, that he must be considered
as having been the owner
"pro hac vice." This accords with
the authorities generally. [
Footnote 1] Notwithstanding this, however, and though
Hammond was the special owner, it has been contended on behalf of
the libellants that all the general owners are liable for the torts
committed by the schooner while she was thus let to charter. The
circuit court was of opinion that they are not, and this Court is
equally divided upon the question.
But we are all of opinion that the owner
pro hac vice
is liable, and that he may be charged in this proceeding. The court
below held that he had been sued merely as a part owner, not as the
charterer, wrongdoer, or active cause of the disaster, and that as
his liability was placed by the libel on the same ground as that of
the other owners, the suit must stand or fail as to all the
respondents, and they held the Act of March 3, 1851, a bar to the
suit in the form in which it had been brought. The court therefore
dismissed the libel. This, we think, was an error. The Act of March
3, 1851, enacts by its 5th section that the charterer or charterers
of any ship or vessel, in case he or they shall man, victual, and
navigate such vessel at his or their own expense or by his or their
own procurement, shall be deemed the owner or owners of such vessel
within the meaning of the act. The previous section had declared
what shall be
Page 79 U. S. 417
the liability of owners for collisions. Hammond therefore is to
be regarded as the owner, because the charterer, and as such
responsible for the tortious acts of the vessel. If the other
general owners are not, he is. The libel, it is true, avers that
all the respondents were owners at the time of the collision. It
does not set forth whether they were general or special owners.
Such an averment was unnecessary, for it is immaterial to their
liability whether they were one or the other if they had the
possession and control of the vessel. It is ownership which
determines the liability, and an averment of the mode in which
ownership was acquired would be superfluous. Had Hammond been sued
alone, as he might have been, the libel need not have averred more
respecting his ownership than is averred now. It would have been of
no importance to set out whether he became owner by purchase of the
schooner, or by bequest, or by charter party, for his liability
would have been as fixed in each case as in the others. Nor does
the libel in this case charge general ownership, as distinguished
from ownership
pro hac vice or ownership as defined by the
statute. There is nothing, then, in the structure of the libel
which stands in the way of a recovery against Hammond as owner,
unless it be that others are also sued with him. And surely that is
no bar to a recovery against him. The libel is for a tort, and
tortfeasors are jointly and severally responsible. At common law,
when several are sued, there may be a recovery against one alone or
against more than one and less than the whole number. We know of no
reason for a different rule in admiralty, and it is in accordance
with admiralty practice to decree against one of several
respondents to a libel for a tort, and to discharge the others.
[
Footnote 2]
Our opinion therefore is that even if the libel was rightly
dismissed as to all the respondents except Hammond, the libellants
are entitled to a decree against him.
Decree reversed and the record remitted with
instructions
Page 79 U. S.
418
to order a reference to ascertain the damages and to decree
that the libellants recover against Hammond.
[
Footnote 1]
Hallet v. Columbian Insurance Company, 8 Johnson 272;
Webb v. Peirce, 1 Curtis 104;
Thomas v.
Osborn, 19 How. 22.
See also Act of
Congress of March 3, 1851, § 5, 9 Statute at Large 636.
[
Footnote 2]
Newell v. Norton and
Ship, 3 Wall. 257;
Smith v. Creole and
Sampson, 2 Wall.Jr. 485.
