Clarke v. The Fashion

2 Wall. Jr. 339 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1852

GRIER, Circuit Justice.

The doctrine of abandonment, as connected with cases of insurance, has never been imported into courts of admiralty, and has no application to cases of collision. Where avessel is injured by collision at sea, and then sunk, the owners are not bound to risk a greater loss than that of the vessel and cargo, on the mere possible-chance or speculation of saving something,, by endeavours to raise her, and are entitled to recover to the whole extent of their loss. But where she is only partially injured, and there is the slightest chance of bringing her into port, the effort must be made. The injured party cannot increase his claim for damages by a voluntary abandonment of his property, and make a profit on his own negligence. He cannot compel the owners of the colliding vessel to become the purchasers of his injured vessel, where she is only partially injured. His abandonment of his own property, confers no title on the offending party, who lhas no right to take-possession or assume any ownership over a vessel, because he has injured it by collision. It is true, it would be his duty and policy to assist the injured vessel, if in his power,, and to help save her, whether he should be ultimately liable for the injury or not.

The measure of damages in cases of collision, is the sum it would take to restore the injured vessel, and make her as good as she was before the collision. To this may be-added, the loss of the daily hire of the boat during the time it would necessarily take-to repair her, in the nature of demurrage. This amount is not to be decreased by introducing the rule of insurance cases, of a deduction of new for old, nor increased by consequential speculative damages, much less-for those which are the consequence of the libellant’s own negligence or voluntaz-y dereliction of his property, and endeavours to-convert a partial into a total loss. Collisions are daily occurring in our crowded ports, in which small sailing vessels are injured by steamboats. In such cases the steamboats, are generally held liable for the damage. But I cannot countenance the doctrine, that if by such collision a hole is knocked in the side of a sloop or schooner, which causes her to sink in port, within a few feet of the wharf, where assistance can be obtained and tfhe vessel raised and restored for a sum not exceeding eight or ten per cent, of her value,, that the owner of such vessel shall abandon her, and convert a small injury into a total loss, and thus sell his vessel to the owners-of the steamboat, or leave her to perish, without the slightest endeavour to save her.

Yet such is the case before us. The sloop is partially sunk, in port, close to the wharf, where persons are ready and willing to raise her for $150, and repair her for $50 more;. nevertheless, the libellant, instead of endeav-ouring to save his vessel, runs oft to the admiralty and files his libel for a total loss, under pretence of abandonment. And when the respondents raise the vessel for him, and when she can be repaired for less than fifty dollars, he refuses to have anything to do with her, and leaves her tackle to the mercy of thieves, and her hull to rot from the effects of the weather. If a case could be produced which affirms the doctrine, that under such circumstances, the libellant should recover the whole value of his vessel, I should not hesitate to dissent from it. The case of The Columbus, 13 Jur. 2S5, relied on at the bar, supports no such doctrine. There the vessel was sunk at sea— the mariners could not bring her into port, and were forced to abandon her. And although the defendants did afterwards raise her, the court decided that, although the li-bellants were bound to use every endeavour to bring her into port, yet they were not bound to risk money, in uncertain attempts to raise a wreck at sea. The ease is no precedent for the conduct of the libellant in this case: nor can he be permitted to speculate on the accident or misfortune, and compel the respondents to pay damages incurred by the libellant’s negligence and folly. It is enough if the owners of the steamboat have to pay the damages consequential on the negligence of them servant, without being liable for those voluntarily and unnecessarily caused by the libellant. This case is therefore referred to the clerk of this court, to assess the damages according to the principles we have stated, with directions to examine and report any further testimony which may be produced on the subject.