55 Ky. 643 | Ky. Ct. App. | 1855
delivered the opinion of the Court.
This action, by ordinary petition, was brought on the 9th of March, 1853, by E. Bustard against Bentley and others, as owners of the steamboat Glendy Burke, of which J. Bentley was captain or master, to recover damages for the non-delivery of a large quantity of molasses, in barrels and half barrels, part of that which had been received by the boat at or near New Orleans, to be transported to and delivered at Louisville or Portland, the dangers of the river and fire only excepted. The bill of lading containing the number and marks of the barrels, and the contract for transportation, is referred to and filed with the petition, and is in the usual form, except that it has at the end, and above the signature, the following clause: “Not responsible for leakage or
The defendants demurred tó the petition, and on the demurrer being overruled, moved that the demand for leakage and cooperage should be stricken from the petition, which was refused. The plaintiff moved for a judgment for the amount claimed, except for leakage and cooperage. These motions were overruled, and the defendants filed their answer, in which, besides denying their responsibility for loss by leakage and cooperage, they show that the non-delivery of the molasses, for which the plaintiff claims compensation (except that which was lost by leakage of the barrels delivered from want of proper cooperage,) was caused by a jettison or throwing overboard of the barrels and half barrels not delivered, under circumstances in which it was deemed necessary, and ordered by the master on consultation with the other officers concerned in navigating the boat, as the only means of saving her and the residue of the cargo, the aggregate value of which, with the freight, they say, was over $90,000. And they aver that this loss was occasioned by the dangers of the river, for which they are not responsible by the bill of lading.
In excuse or justification of the jettison, they alledge that the boat left New Orleans well officered and well manned, took on board, on her way, the plaintiff’s cargo, and was duly prosecuting her voyage up the Mississippi, for Louisville, when, on the night of the 5th of February, and about five miles below Helena, in Arkansas, being under way, she run on Montezuma bar; that efforts were immediately made to back her off with the engines, and in do
The plaintiff demurred to the original answer, but the demurrer was overruled, and a jury impannelled* who, after hearing the evidence, and being unable to agree on a verdict, were discharged, and the cause was continued. At a succeding term a trial was had, which, after the exclusion, by the court, of all testimony going to show the opinions of various persons engaged in navigating steamboats on the Ohio and Mississippi rivers, that spars and anchors could not have been used with any effect at the place and in the condition in which the boat was, and under instructions from the court that the plaintiff could n.ot recover for damage by leakage and cooperage, and that the defendants had not made out the defense of a justifiable jettison, and that upon the whole evidence they must, as to the jettison, find for the plaintiff, resulted in a verdict for the plaintiff for $3,857 48 in damages, for which sum judgment was rendered in his favor. The defendants excepted to the opinions of the court excluding the evidence respecting the utility of attempting to use spars and anchors ; and also to the instruction given as to the jettison. The plaintiff excepted to the instruction'to find against his claim for loss by leakage and coo'perage, and also to the opinion overruling' his objec
The motion of the defendants for a new trial, founded mainly upon the exclusion of the evidence above referred to, and upon the instruction to find for the plaintiff as to the jettison, having been overruled, they have brought the case to this court, assigning errors covering all the decisions of the circuit court against them. The plaintiff has assigned cross errors, questioning all of the decisions against him, except upon his motion for a judgment for all of his demand but that for leakage and cooperage.
Some of the questions thus presented are of minor importance. Others are of a magnitude not exceeded by any which can arise respecting the navigation of, our great rivers, and the rights and duties of owners and masters of steamboats navigating them with freight. Those of the former class we shall barely notice, without enlarging upon them.
Tbe defendants’ motion to strike out so much of the petition as relates to the demand for loss by leakage and cooperage, was properly overruled, because that part of the claim, and of the petition, involved the charge of deterioration of the barrels during the voyage, by tbe fault of the defendants. Besides, the object was afterwards fully answered by the instruction of the court on that subject. The plaintiff’s motion for judgment, except as to leakage and cooperage, seems to have been made soon after the demurrer to the petition was overruled, and on the same day, and immediately before the filing of the answer which removed all ground for it. The filing of the answer, though in the same order, is stated after the overruling of the plaintiff’s motion. But if the answer was first filed, and if the motion had been granted, an inquiry as to damages would have been still necessary, and the effect of the motion was substantially attained by the instruction as to the defense of jettison. The amendment of the answer made during the trial, does not appear to have been prejudi
The right- and law of jettison, had its origin and growth, as a law of the sea, in the navigation of which, the loss of the vessel involved not only in most instances, the loss of the cargo, but generally the loss, and always the hazard more or less imminent, of life. And we sometimes find the rule exempting the carrier from liability on the ground of this right, laid down as if depending upon or growing out of a necessity of throwing goods overboard for the preservation of the vessel and crew, in a tempest, (2 Kent’s Com., 603,) or in extremity produced by other causes coming within the common law exceptions to the undertaking of the the carrier. The extreme rigor of the rule of liability, applicable to carriers bjr sea, who necessarily incur much greater hazards than are ordinarily incident to transportation by land, has in modern times been mitigated, by introducing into the contract for transportation and delivery, the exception of dangers or perils of the sea, in addition to the two exceptions of the act of God and the king’s (or public) enemies, recognized by the common law. And as under the common law exceptions, the carrier was not liable for the non-delivery of goods thrown overboard, under a necessity caused by the act of God or the public enemies, so to give him the reasonable benefit of the exception of the perils of the sea, when expressed in the contract, he is not liable for the non-delivery of goods thrown overboard, under a necessity caused by a peril of the sea. In either case, and in the one as
Under.this rule and from what has already been said, we must conclude that if a vessel transporting-goods on the sea, under a contract containing the ex
The exception of the dangers of the river in the bill of lading now before us, bears a strong analogy, matatis mutandis, to the exception of perils of the sea. And there seems to be no good reason why the same definition, with the substitution of river for sea, should not be applied to each ; nor why the same principle which determines the liability or non-liability of the carrier by water, under the one exception, should not also determine it under the other. The principle that the carrier should provide a vessel,' in strength and equipments suitable to the voyage which he undertakes, and that he should furnish her ; with officers and men, competent in number, and in the qualities requisite for the particular navigation, is alike applicable to both cases; and there can be no ground for discrimination upon the question of bis liability for a loss occasioned by a want of reasonable care, or skill, or diligence in those whom he has employed as his agents in the transportation of merchandise. Nor should there be any as to his non-liability for accidents peculiar to the element on which his vessel is borne, and to the navigation he is engaged in, and which do not happen by the intervention of man, nor are to be prevented by human prudence. By which we understand that degree of prudence which is usually found in discreet men, under similar circumstances, and is to be reasonably expected from those who are engaged in the particu-’ lar navigation.
There are, it is true, differences between our rivers and the sea. But although these may produce a difference in the circumstances of the case, and some difference or even difficulty in the application of the same principle of liability or non-liability, we do not perceive that they should necessarily produce any difference in the principle itself. It is said that there are maps and charts of the ocean, by which the navigator is shown the course which he should pursue, aud the dangers which he is to avoid. But the new discoveries continually made, and the constant im
But if on the other hand the obstruction be known, and the vessel run upon it without being driven on it by the superior natural force of wind and tempest, the law of the sea makes the carrier liable for any loss occasioned by the accident, upon the assumption that not being the result of the superior force of natural causes, it might have been prevented by human prudence, that is, by the exercise of reasonable care and skill, and is tobe attributed not to a peril of the sea, but to the fault or deficiency of the navigator. And to the application to the carrier on the river of this braneh of the rule, with the qualification, of adding the current of the river as one of the natural forces which might, by counteracting the reasonable exertions of care and skill on the part of
It will be observed that we have included among the obstructions which may aid in causing an accident, attributable to dangers of the river, not only islands, and bars or shoals, but also snags, and we say, the shore itself. The principle being, that if the boat, while pursuing the usual course or channel, runs and grounds upon one of these obstructions, which is unknown to navigators, the accident is attributed to a danger of the river, hut if it run upon one which is known, it is not attributed to that cause, unless it be driven upon it by one of the natural forces to which we have referred, and notwithstanding the reasonable efforts of the navigator. The same principle of discrimination between the known and the unknown, applies to the shifting of bars, or the formation of new ones by the rising and falling of the river. But as this property or habit of the river, as well as its ordinary currents, and the effect of ordinary winds should be known, and must be presumed to be known to the navigator, a corresponding degree of caution is requisite, in approaching and passing those places, in which such changes may be expected in the bed of a falling river, and in which the course of the boat may be effected, even by ordinary winds and currents.
It was necessary that the answer which admitted and professed to justify the non-delivery of a large portion of the plaintiff’s goods, and to present a defense under the exception of dangers of the river, should state facts which would show not only a necessity for throwing the goods overboard, when it was done, but also that this necessity was caused by a danger or by dangers of the river.
The allegation that the accident and loss were occasioned by dangers of the river, is an allegation of a conclusion of law arising upon certain facts, and ,the facts themselves should have been stated. The averment that the accident was unforeseen, and inevitable or unavoidable, presents no distinct fact. These terms are themselves but conclusions from facts which should have been stated. The iact or facts which prevented the danger from being foreseen, and those which made it unavoidable and rendered it inevitable, should have been shown with reasonable precision and brevity. For we are not requiring a statement of the evidence by which the ■facts may be proved, but a statement of the material facts on which depend the conclusions of law relied on in the defense. An accident may have been unforeseen, and may, under the particular circumstances, have been at the moment unavoidable and inevitable, and yet may not be properly attributable to dangers of the river ; and it will not be attributed to that cause, if by the exercise of reasonable care and skill, it might have been foreseen and avoided.
The boat, in ascending the Mississippi in the night, ran on Montezuma bar. Without drawing any inference of notoriety froxp the fact that the bar bad a name, it is evident, from what has been said, that the running upon it was not an accident attributable to a danger of the river, unless the bar being a new formation or in a new place, was unknown, (in the sense in which we have explained that term,) and was not visible nor discoverable by reasonable vigilance, in time to be avoided; or unless, although it was known or thus discoverable, the boat was, without fault of the navigators, driven upon it by the wind or the current, which counteracted tlie reasonable exertions of those who were conducting it. The operation of these natural forces in producing the collision, seems to be absolutely negatived by the fact that the boat was going up stream when she struck the bar, while not only the current, but the
Again, as the boat ran upon the bar in her ascending progress, the presumption is, that she ran upon it with her bow upstream; and in that position, the engine being reversed to back her off, she would, when got afloat, be naturally and rapidly impelled, stern foremost, down the stream, by the concurrent forces of the wind, the current, and the engine. And yet in pursuing the narrative of the disaster, as presented in the answer, we find it said that in endeavoring to back her off with the engine, the boat swung broadside upon the bar, stuck fast, and was then grounded. All this was certainly strange and inexplicable, if it happened while her bow was still aground on the bar, which it must have struck on the lower side, and while the boat was operated on by the current, and wind, and steam, all tending to keep her in a direction up and down the channel. But the answer says she ran on the upper end of the bar, and swung with her side on it, the wind and current pressing her on the bar. Of course, this could not have happened, either while the bow was fast where it first struck, and the stern down the stream, or while the boat was actually moving up stream, bow foremost. It must have happened after she was got afloat from the first sticking, and while going down the stream before the engine was reversed, or before it had given her a new headway up the stream; and while thus descending, her stern may have struck on the upper side of some other part of the same or of
This, according to the evidence, was substantially the actual course of events. There seems to have been in fact, as from the answer there may be infei'red to have been two collisions, or accidents; the first while the boat was ascending the stream, when probably the bow run upon a bar; the other after she had been got afloat from the first striking, and before recovering her headway, when descending the stream stern foremost she struck another bar, or a different part of the same, and having swung round, came into the position in which the jettison was rosorted to, and as alledged, under a necessity then existing, to throw a part of the cargo overboard, as the only practicable means of saving the residue and the boat itself. But in order to show that this necessitjr, if it existed, and the consequent loss and non-delivery were occasioned by dangers of the river, and therefore within the exception in the policy, it was necessary to show not only that the extreme peril of the boat was the unavoidable consequence of this second striking, and of the action of the wind and current on the boat, not to be averted by reasonable skill and exertion, but that the second striking itself was upon a recent formation, or unknown bar; or that it was caused by force of the wind and current, and in either case without fault on the part of the navigators. And if the situation of the boat which rendered her liable to an accident, not consistent with her proper motion up stream, and which therefore should be accounted for, was the consequence of the first sticking, it should have been shown that reasonable care and skill and exertion, were used in getting the boat off from the first sticking, and in avoiding the second as well as that of the first sticking, was itself caused by danger of the river. And if the part of the river where these accidents occurred, was on account of the number or
The answer when subjected to these tests, growing out of the principles which we deem applicable to the subject, is found to be substantially defective in failing to state facts which authorize the conclusion that either the first or the second striking of the boat was attributable to a danger to the river, and not to the fault of the navigators, and iii failing to state the facts which constituted or caused the immediate and imminent danger to the boat and cargo, to be avoided only by a jettison, and which, while they forbade delay, which in many cases might bring relief, prevented the resort to other means of safety rather than to the sacrifice of a valuable part of the cargo. The manner of determining on and making the jettison as stated, seems to be subject to no reasonable objection. But the fact that the master and the officers whom he consulted, thought the jettison necessary, did not make, and do not conclusively prove it to have been so; and as the propriety of their decision and conduct must be passed upon by a court and jury, to whom the questions as to the
But while the law requires the use of all practicable means of relieving the boat from distress before resorting to a jettison, we know of no rule which makes the use of any particular means indispensable ; and if in point of fact the nature of the bar was such that spars and anchors could not be used at all; or if the situation of the boat, and the circumstances existing at the time, were such that spars and anchors, if they might be used at all, could not be used with any prospect or hope of relief, or of ma
But at last these opinions, to have any value, must rest upon facts, to be proved as facts, and not as mere matters of opinion. Upon the question whether spars and anchors could be used at all at the place where the boat was aground, the principal fact upon which opinion might be founded, relates to the nature of the bottom, and of the bar or sand at that place, as being of such rarity or density that anchors could or could not take hold upon the surface, and that spars could or could not find a foundation or resting place within the proper distance from the application of the power. The fact as to the density of the sand of which the bar was composed, might be imperfectly or inferentially proved by those who had a general knowledge of it from previous experience. But this general inference, or even knowledge, would hardly account for or excuse the entire neglect of spars and anchors without making some actual test, if opportunity allowed, of the precise nature or condition of the sand composing the bar on which the boat was aground, in order to ascertain whether spars and anchors, or either of them, could be used. The nature of the bar being proved, the
The real question in this branch of the case is, whether spars or anchors could have been used with any effect towards the relief of the boat in her actual situation, or whether the failure to use them contributed in any degree to produce, or continue, or increase the danger which was the ground of the jettison, and of the consequent loss. And this question1, is one not of law, but of fact, to be decided by a jury, upon such evidence of facts and opinions as, according to the general principles of evidence, is appropriate to such a question, involving the exercise of judgment and skill, and which can only oecur in a* particular employment or business of art. And as it is understood to be the duty of the master, before making a jettison, to consult the other officers on board, if there is opportunity for so doing, we think the carrier, on the question of his liability for the loss, is entitled to the benefit of the fact that such consultation was had; and, also, of the opinions then entertained and expressed by the officers in charge of the boat, to be proved by those who expressed them, if their evidence is attainable, and, if not, by others who were present, or had knowledge of them. But this evidence should be admitted no farther than to prove the judgment or opinion of the individuals referred to, as expressed at the time, with reference to the actual condition of the boat, and the probable or possible means of relief. And even to this extent it would be admissible to prove only, that the jettison was made deliberately, and upon consultation and advice, in reference to the actual circumstances and necessities of the case, as understood by those
The court having excluded testimony which, according to the foregoing opinion, was admissible, and upon which, in connexion with the evidence before them, the jury might have found a different verdict, the judgment ought to be reversed and a new trial had, unless this court should assume conclusively, which it cannot properly do, that the non-delivery of the plaintiff’s goods was caused by the fault of the defendants or their agents, and not by a danger of the river, and an accident occasioned thereby, which could not have foreseen or avoided.
Upon the cross ei’rors, so far as not already disposed of, we remark, that there is no foundation in the record for the complaint that the court improperly overruled the plaintiff’s motion for judgment (on the answer of the defendants held good on demurrer,) for the amount to which he would be entitled upon, a settlement of the general average, in case the jettison, as alledged in the answer, was rendered necessary by a danger of the river, and which it is contended the master was bound to ascertain and secure. The record does not state that any such motion was overruled, or even made. And if the motion had been expressly made and overruled, we are far from being satisfied that in an action in which the plaintiff claims damages for non-delivery of goods according to the bill of lading, judgment could be claimed upon an entirely different liability,
A more serious question is presented by the complaint that the court improperly overruled the plaintiff’s objection to the competency and admissibility of R. Jamison, the pilot who had chai'ge of the boat when she first struck, and when, in backing off, she was finally grounded, and who was allowed to testify as a witness in this case, without a release. This objection is founded upon the rule laid down in the books on evidence, and established by numerous adjudged cases, that in an action against the principal, for damage occasioned by the neglect or misconduct of his agent or servant, the latter is not a competent witness for the defendant, without a release, (Green-on Evidence, sec. 394,) and the reason is thus stated by the author referred to : “For he is in general liable over to his master or employer, in a subsequent action, to refund the amount of damages which the latter may have paid.” And of the amount of damages recovered against the employer, the record will be evidence against the agent, though he may not have been required to defend the action. This rule is said, in the section quoted, to apply to the relation of master and servant, wherever, in its broadest sense, it may be found to exist; and among other"
In this case a judgment of damages against the defendants would not be evidence, for any purpose, against the pilot, in a subsequent action by his employer, because the judgment and damages might be founded wholly upon the impropriety of the jettison as being unnecessary, whether there had or not been any neglect or misconduct in the pilot’s management of the boat. This ground of objection to his competency has, therefore, no application to this case.— And although a verdict for the defendants might secure him from responsibility to them for the present loss to the shipper, it does not necessarily follow that it would secure him from responsibility to them for any injury they may have sustained, independently of the jettison, by his negligence or misconduct in some stage of the same disaster. Nor is it certain that the same standard of skill would be applied in an action by the carrier against the pilot, as in an action by the shipper against the carrier, who may-have employed a pilot known to possess less than ordinary or proper skill. For these reasons, and because in most cases of disaster in the night, as in the present case, the pilot at the wheel, and necessarily on the lookout, may be presumed to be the only person who knows with accuracy the causes by which it was produced, we think the court did not err in deciding that the witness was competent, however the objections might go to his credit.
With respect to the defective cooperage, and the leakage complained of, we concur with the circuit court in the opinion, that on the evidence in this re
Wherefore, the judgment is reversed, and the cause remanded for a new trial according to the principles of this opinion, as preparatory to which the defendants may amend their answer.