73 F. 239 | 9th Cir. | 1896
Lead Opinion
It is con feuded by appellant that: (1) The evidence does not sustain the finding of the court that the officers of the tug Printer were at fault. (2) There can he no recovery for loss of life, as the disaster occurred on the high seas. (3) If there was liability, it arose while transporting property to a port of the United íátates, and hence excused from responsibility for damages by section 3 of the act of congress of February 13, 1893. (4) That the damages assessed for the deaths of Ghristopherson and Pederson are excessive. They were assessed, respectively, as we have seen, at $7,009 and $5,000. The culpability or nonculpability of the master of the tug depends upon the condition of Humboldt Bar at the time he undertook the towage of the Fidelity, and hence to this fact the testimony of the witnesses was addressed. It is conflicting, but the witnesses, if equally competent, do not appear to be equally disinterested. This and other circumstances determine the preponderance of evidence in favor of the findings of the district court. A review of the evidence we shall not undertake;. To be satisfactory, it would necessarily have to be circumstantial, and hence very long. Besides, it is unnecessary. It was done by the learned judge of the lower court, and its substantial accuracy we have verified by an independent examination. It is not disputed that the bar is changeable, and requires constant observation and care. It is not: disputed that at the time the service was undertaken the tide was ebbing, and that this was a more dangerous condition than though it had been flowing. There is some conflict, in the testimony as to its strength, and some as to the wind and roughness of the sea; hut it was established or conceded that if the sea was breaking in seven or eight fathoms of water it was too rough for towage. Of the immediate actors in the incident those on the Fidelity were all lost. Of those on the tug three testified, — the captain, the matt*, and the steward. The two former aver that the bar was not dangerous, and attribute the accident to an unexpected heavy sea, and the deficiency of ballast in the schooner. The steward, however, testified that the bar that morning (to quote his words) “was rough at times, and at times it wasn’t.” And he further testified that when the passage'of the fear was about to he made he had the following conversation with the captain: “I asked him if he was going in, and he said, ‘Yes.’
To support its second contention, appellant urges that no liability arose at common law from an act causing the death of another, and that there is no act of congress creating the same. There is a statute of the state of California creating such a liability, and it is conceded that the liability may be enforced in a court of admiralty. In addition to the concession of appellant’s counsel, see the case of The Willamette (decided by this court Sept. 18, 1895) 70 Fed. 874. But it is contended that the liability may be enforced only when the act complained of occurs on inland waters, and it is claimed that the act complained of in this case occurred on the high seas, and hence outside of the dominion of the California statute. By the constitution of the state (article 21) the western boundary line is three English miles from the shore, and by section 33 of the Political Code the sovereignty and jurisdiction of the state extends to this boundary; and by the same code the western line of Humboldt county, in its extent, coincides with the state boundary. Therefore, as far as the latter law is concerned, the place of the disaster which is the subject of this suit was within the territorial limits of the state of California. Is it not so in substance of law, as well as the letter? In Wheat. Int. Law, § 177, the maritime territorial jurisdiction of an independent nation is defined as follows:
“The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea inclosed by headlands, belonging to the same state. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along the coasts of the state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation.”
And in Kent’s Commentaries it is laid down that:
“According to the current of modern authority, the general territorial jurisdiction extends into the sea as far as a cannon shot will reach, and no further, and this is generally calculated to be a marine league. * * *”
The jurisdiction of the state of California over the sea is that of an independent nation. U. S. v. Bevans, 3 Wheat. 336; Manchester v. Massachusetts, 139 U. S. 264, 11 Sup. Ct. 559. In the latter case
i.:? -s * That the proprietary right of Massachusetts is confined to the body of the comity; that the offense committed by the defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty Inseparably connected with national character, and which were entrusted exclusively to enforcement in admiralty courts; that the commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it co-uld not, by the statute in question, oust the United States of jurisdiction. * * *”
And, discussing these contentions, the learned justice said:
“The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation, and, except so far as any right of control over this territory has been granted to the United States, this control remains with the state.”
And further:
“Within wliat are generally recognized as the territorial limits of states by the law of nations, a state can define its boundaries on the sea, and the boundaries of its counties.”
Henry, in his work “Admiralty Jurisdiction and Procedure” (section 12), states the law as follows:
“Sec. 12. But neither the lakes nor the public rivers of the United States are, in a federal sense, highways of the state. A vessel, after leaving a port of a stare on a public river, is on a national highway, subject to state jurisdiction for some limited police purixoses, which are subordinate to the paramount right of navigation, and the navigable rivers aro as much national highways as the high seas are international. The littoral jurisdiction of a state, although extending, for some purposes, beyond low-water mark, is subject to the paramount right of navigation as a highway of the nation, in the same manner as the sea within the three-mile zone from the shore is subject to the right of navigation by foreigners without becoming subject to the local law. Such waters are considered as the common highway of nations, and the jurisdiction of the local authorities exists only for the protection of the coast and its inhabitants. not to subject passing vessels to the local law of the government of the shore.”
To sustain this statement the learned author cites the following cases: Reg. v. Keyn, 2 Exch. Div. 63; Collier Co. v. Schurmanns, 1 Johns. & H. 180; The Twee Gebroeders, 3 C. Rob. Adm. 336; The Saxonia, Lush. 410. They are English cases, and citing them makes the meaning of the text doubtful. The text seems to make a distinction between national and state authority. If so, it is disposed of by U. S. v. Bevans and Manchester v. Massachusetts, supra. If it mean to deny authority to both the national and state governments, it is opposed to the same cases, and to Wheaton and Kent, and the authorities they cite, and does not appear to be sustained by the cates quoted to support it, except probably the case of The Raxonia. I say probably, because that case has been interpreted as only deciding the applicability of a particular statute. In The Twee Gebroeders, Sir W. Scott speaks of the sea within three miles of Friedland as “waters belonging to Prussia.” In Collier Co. v. Schur
“It is not questioned that there is a right of interference for defense and revenue purposes, and it is difficult to understand why a country having this kind of territorial jurisdiction over a certain portion of the highroad of nations should not exercise the right of settling the rules of the road in the interests of commerce. An exercise of jurisdiction for such a purpose would be at least as beneficial as for the purpose of defense and revenue.”
Reg. v. Keyn occupies about 270 pages of the report; hence it is too long for review, and, besides, was concerned with some questions with which the case at bar is not. It was a criminal case. Keyn was indicted at the central criminal court for manslaughter. He was a foreigner, and in command of a foreign ship passing within three miles off the shore of England, on a voyage to a foreign port; and while within that distance his ship ran into a British ship, and sank her, whereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter by English law. The ultimate question was the jurisdiction of the central criminal court. This depended not only on dominion over the three-mile limit, but upon certain statutes, and on the absence of an enabling enactment. The court was not unanimous on any of the propositions, and the agreement of the majority was only as to the latter; that is, the absence of a statute. The minority of the court was firm in the conviction that the sea within three miles of the coast of England was part of its territory. Lord Chief Justice Oockburn rendered the opinion of the majority, and if it may be said that he accurately opposed the reasoning and conclusion of the minority, he nevertheless based his judgment as well on other grounds, and it was only in the judgment that others of the minority concurred. Lush, J., in his concurring opinion, makes a distinction between the dominion of parliament and the dominion of the common law, and excludes the three-mile limit only from the latter. In concluding, he said:
“Therefore, although as between nation and nation these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they, are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must, in my judgment, be authorized by an act of parliament.”
The lord chief justice also conceded the power of parliament, and jurisdiction for certain purposes, including fishing, finding sufficient, or at least not dissenting from the sufficiency of, the reasoning for the latter. But if the jurisdiction be one of legislative power, if it exist in England it must exist in the United States, disregarding now, as not a condition of our inquiry, the difference between control over domestic and control over foreign ships. If it exist in the United States, it is either in the national or in the state governments. In which it is we have already considered, and can only repeat what Justice Blatchford said in Manchester v. Massachusetts, that the jurisdiction of a state over the sea adjacent to its
To the jurisdiction of the state, besides the citation from Henry, supra, the appellant opposes the cases of Armstrong v. Beadle, 5 Sawy. 485, Fed. Cas. No. 541; Lord v. Steamship Co., 102 U. S. 541. If the latter ease is an antagonism to Manchester v. Massachusetts, it will have to yield to the latter. But there is no antagonism. Lord v. Steamship Co. is to be interpreted as applying to the ocean beyond the three-mile limit. In Armstrong v. Beadle the facts were that plaintiff and his wife were passengers on a steamer bound from a port of Oregon to Ban Shancisco. On the voyage she struck a rock “near” Point Arena, in the county of Mendocino, the complaint said, and plaintiff and his wife were ordered to get into a surf boat, with which the steamer was provided, and by its negligent handling Ms wife was thrown into the water. The answer admitted the principal facts, but alleged that while said steamship was proceeding on her voyage, and on the high seas, the said steamship was, by the perils and acciden ts of the seas, forced and cast upon a rock. The opinion of the court was on a demurrer to this answer. The exact locality of the disaster did not appear. The complaint put it “near” Point Arena. The answer put it “on the high seas." But there is nothing further to show whether it was inside or outside of the three-mile limit, or that the fact or the effect of such limit was urged upon the court. Nothing, therefore, can be determined from the case than that it adjudges that the statute had no extraterritorial ('fleet. If it extends further than this, it is inconsistent with Manchester v. Massachusetts.
Against the validity of the statute may be cited Judge Hopkinson’s charge to the jury in U. S. v. Kessler, Baldw. 15, Fed. Cas. No. 15,528, and for its validity the case of The Ann (decided by Judge Gtory), 1 Gall. 61, Fed. Cas. No. 397. The learned judge said:
“All the writers upon public law agree that every nation lias exclusive jurisdiction to the distance oí' a cannon allot, or marine league, over the waters adjacent to its shores; and this doctrine has been recognized by the supremo court of the United States, indeed, such waters are considered as a part of the territory of the sovereign.”
The appellant further urges (hat if is exempt from liability by section 3 of the act of congress of February 13, 1893 (27 Stat. 445). It reads as follows:
“If the owner of any vessel transporting merchandise or property to or from any port in the United States, shall exercise due diligence to make said vessel seaworthy, and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or bo held responsible for damage or loss resulting from faults or errors in navigation, or in the management of said vessel,” etc.
The acts complained of occurred in 1889, and therefore, if this statute was otherwise applicable in the circumstances of this case,— of which we express no opinion, — the statute would have to be given
The fourth contention of appellant — that the damages awarded are excessive — needs not much comment. It may be, as counsel urges, quoting Judge Billings in Cheatham v. Bed Biver Line, 56 Fed. 250, that the problem of how long a man’s productive life shall be estimated, and at what sum, is one of the greatest uncertainty. But an estimate must be made, and what better can we do than to take the existence and the promise of the qualities and conditions when the life was destroyed. By this test the damages awarded were not excessive. The judgment of the district court is therefore affirmed.
Dissenting Opinion
(dissenting). I concur in the opinion of the majority in holding that the place of the disaster to the Fidelity is within the boundaries of the state of California, and that the laws of California in force at the time furnish to this court a rule of decision applicable to the question in this case as to the right of widows and children to recover damages from a person or corporation guilty of negligence or a wrongful act causing the death of their husbands and fathers. I concur generally in the opinion of the majority, except that I am unable to find from the evidence that the master of the steam tug Printer Or the petitioner were in any wise to blame for the disaster to the Fidelity, or by any wrongful act or negligence caused the death of the persons on board of her. The only ground upon which the petitioner or the steam tug Printer can be held liable for the damage resulting from the loss of the Fidelity is that the master of the tug was guilty of negligence or some fault which was the direct or proximate cause of the casualty, and the burden rests upon the parties claiming damages to establish by at least a fair preponderance of the evidence that there was some negligence or fault. The liability of a tug boat in general is stated by the learned judge of the district court before whom this case was tried in the following excerpt from the opinion of the supreme court in the case of The Margaret, 94 U. S. 496:
“The tug was not a common carrier, and the law of that relation has no application here. She was not an insurer. The highest possible degree of skill and care were not required of her. She was bound to bring to the performance of the duty she assumed reasonable skill and care, and to exercise them in everything relating to the work until it was accomplished. The want of either in such cases is a gross fault, and the offender is liable to the full extent of the measure of the consequences. Brown v. Clegg, 63 Pa. St. 51; The Quickstep, 9 Wall. 665; Wooden v. Austin, 51 Barb. 9; Wells v. Navigation Co., 8 N. Y. 375; The New Philadelphia, 1 Black, 62; The Cayuga, 16 Wall. 177; Cushing v. The Fraser, 21 How. 184. The port of Racine was the home port of the tug. She was bound to know the channel, how to reach it, and whether, in the slate of the wind and water, it was safe and proper to make the attempt to come in with her tow. If it were not, she should have advised waiting for a more favorable condition of things. She gave no note of warning. If what occurred was inevitable, she should have forecasted it, and refused to proceed.”
With the foregoing general rules of law in mind, the evidence must be canvassed in order to ascertain whether the facts established are such as to entitle the respondents in this case to recover, and it is proper now to take up singly the particular specifications of negligence and fault alleged against the master of tie Printer.
First. It is alleged that Capt. Lawson was not licensed by the local board of pilot commissioners for Humboldt Bay, as required by the statute of the state of California. This charge is true in fact. But Oa.pt Lawson was duly licensed for the service in which he was engaged, as master and pilot of the Printer, in conformity with the laws and regulations of the United States. In such matters, the national law is paramount to the state law, and section 4444, Rev. St. U. S., prohibits the states from imposing upon pilots of steam vessels any obligation to procure a sime license in addition to that issued by the United States, except in the case of persons serving as' pilots of vessels other than coastwise steam vessels. It is shown by uncontradicted evidence that Capt. Lawson had been 20 years continuously employed as pilot of steam tugs in towing over the bars at the entrances to the Columbia river, Shoal Water Bay, and Gray’s Harbor : that he has been a successful pilot, and has retained the confidence of his employers; and that he had been successfully employed as master and pilot of tug boats employed in towing over the
Second. The next fault to receive attention is the failure of the Printer to have on board a licensed mate. The evidence shows, however, that Mr. Johnson, who was employed in that capacity, was competent, and that he performed his duties faithfully, and he did not in any manner, by omission or commission of any act, contribute towards the disaster. Such being the case, no liability attaches in favor of the respondents by reason of noncompliance with the law in this particular. The Blue Jacket, 144 U. S. 371, 12 Sup. Ct. 711.
Third. The particular fault alleged is recklessness on the part of the master of the tug in attempting to cross the bar with the Fidelity in tow at the particular time, and it is contended that the state of the tide, the force of the wind then prevailing, and the tempestuous sea breaking on the bar created conditions so unfavorable for crossing, and were dangers so plainly apparent, that the conduct of Capt. Lawson ire making the attempt to cross, instead of waiting outside for more favorable conditions, is inexcusable. This contention presents the main issue in the case, and upon this the findings of the district judge who tried the case are adverse to the petitioner. The rule that, where thei’e is a conflict in the evidence, the findings of the judge before whom the case was tried on questions of fact will not be disturbed by an appellate court, cannot be fairly invoked, for the reason that the case was tried in the district court upon depositions taken'out of court; and as the judge did not see the witnesses, nor have an opportunity to observe their appearance or behavior while giving their evidence, he could not be in a better position to weigh the evidence than the judges of this court; and a careful reading of the testimony in the record shows that, while the witnesses called on each side expressed opinions and stated conclusions favorable to the party calling them, - there are really no contradictions as to actual facts of vital importance. To arrive at a just conclusion as to the condition of things at the time and place of the disaster, the evidence must be analyzed, and due weight given to all of it. There is no ground apparent for rejecting the statement of any witness as to any material fact in the case. The most that can be claimed is that some of the witnesses erred in their opinions and statements as to the force of the tide and of the wind, and as to the degree of roughness of the sea, and the depth of the water breaking on the bar. The only witnesses who actually saw the capsizing of the Fidelity are Capt. Lawson, Mate Johnson, of the Printer, and Capt. W. P. Smith, assistant engineer in charge of the government works in Humboldt Bay. And their statements as to the cause and manner of the casualty and the conduct of’ the tug can be fairly reconciled. All of the witnesses who observed the weather and sea at the
“Commencing at 6 a. m. on the 10th, from six to seven, it blew one mile of wind. The direction of the wind was from south to southwest. It varied from south to southwest. From seven to eight, two miles; eight to nine, six miles; nine to ten, eight miles; ten to eleven, thirteen miles; eleven to twelve, sixteen miles; twelve to one, eighteen miles; one to two, sixteen miles; two to three, twelve miles; three to four, fourteen miles; four to five, nine miles; five to six, fourteen miles; six to seven, fourteen miles.”
These observations were taken at a distance of five miles from Humboldt Bar, and according to the testimony an allowance of one mile per hour additional velocity on the bar is reasonable, so that at the time when Oapt. Lawson started to cross the bar the very light breeze prevailing during the early morning hours had increased in velocity to not exceeding nine miles per hour. This certainly cannot be characterized as a strong wind, nor portentous of immediate danger. There had not been, during the night preceding, any strong-wind in the immediate vicinity; and the evidence fails to show that there was, during the morning in question, any indication of a coming storm, or any cause to anticipate high waves, or additional roughness of the sea. The Printer and another tug-, the H. H. Buhne, crossed the bar, going to sea in search of vessels in the offing to be towed in. The two tugs were competitors for business, but Capt. Lawson had no occasion to take chances in order to succeed against his rival, for the other tug had preceded him in an offer of service to the Fidelity, and his offer had been rejected on the ground that the captain of the Fidelity was obliged to give preference to the Printer. The testimony shows that another tug was disabled in attempting to cross the bar on the same morning, but this circumstance is without significance, for the reason that it is not shown by the evidence that the mishap was not caused by bad seamanship or negligence on the part of her officers. The Printer met with no difficulty in crossing the bar, going out. The H. H. Buhne, which accompanied her, also crossed the bar without difficulty, and waited outside until afternoon, when she returned, after the wind had been blowing with increasing velocity for several hours, and crossed in without an accident; and her master, Oapt. Hanson, who was called as a witness in behalf of the appellees, corroborates Capt. Lawson in giving as one of the rules observed by masters of steam tugs on Humboldt Bar that when the conditions are so that a tug can go out in safety to a vessel in the offing, it is safe to tow her in. His testimony on this point is as follows:
“Q. Isn’t it a fact tliat if you can cross over tlie liar, and a vessel is in tlie offing, you can always tow her in? A. Yes, sir; I can. If I can go out with tlie tug boat, I can bring the vessel in, too. That is what I think every day. But if I can’t get out, I can’t take a vessel. If I can go with the tug boat over*253 the bar. I can come back again with the vessel, unless something occurs that is unlooked for, or unless something breaks down when we are out there. If everything goes well, I calculate to come right hack. It is always easier to come in than to go out. You can stay outside, and watch your chance to come in, and, when a sea overtakes you, you can go in; but you can’t do it in going out.”
Capt. Lawson's testimony on the same point is as follows:
“It is always deemed safe to tow in when the tug can in safety cross out.”
Eureka was the home port of the Fidelity, aud her captain must be presumed to have been acquainted with the dangers and difficulties of crossing the Humboldt Bar, and some consideration must be given to his conduct. He had been for some time waiting in the offing for a tng, having ample opportunity to observe the conditions of the sea, wind, and tide. It is shown by the uncontradicted testimony of Capt. Hanson that he was only waiting for the Printer to tow his vessel in; and Capt. Lawson, in giving his testimony, lias sworn that Capt. Ghristoplierson expressed the opinion that the weather was favorable, and that, as it was then high tide, it was perfectly safe to tow the Fidelity into Humboldt Bay. It is certain that lie consented to be towed in at that time, if he did not positively request it, for he was in no wise compelled to surrender control of his vessel to the tugboat. His responsibility is at least equal to that of the master of the tug. The mate of the Planter, Mr. Johnson, has also sworn that in his judgment, at the time of giving the hawser to the Fidelity, everything was favorable as to the time, the tide, and the condition of the bar and of the weather for crossing it in safety; that there was no reason to expect such a wave as that which capsized the Fidelity at that particular time more than at any other time, and he further expresses his opinion thus:
“I think it would bo the judgment of any good boatman (hat the vessel should have towed in with perfect safety at the time we took her onto Uie bar.”
In opposiiion to the judgment of these experienced navigators, as shown by their conduct and sworn testimony, is to be placed the evidence of the officer of the life-saving station, and his two assistants, to the effect that the bar, on the morning in question, was. very rough, and that they considered it hazardous and unwise to toiv a vessel in at the time when the Printer made the attempt; and the statements of Capt. Peter Bone, Capí.H. EL. Bulme, and Capt. Hanson, in answer to hypothetical questions, to the effect that under conditions stated in the questions, which are not proven to have existed at the time, it would be negligence on the part of the master of a tug to tow a vessel in across Humboldt Bar; and the testimony of the cook on .the Printer, to the effect that he made a voluntary suggestion to Capt. Lawson, that the bar appeared too rough to tow in, and was told by the captain to mind his own business. With respect to the men of the life-saving station, there is ample ground to assume that their opinions are founded upon the conditions existing after (he casualty, rather than upon facts which they observed previous to its occurrence. Although the Printer, with the Fidelity in tow, was seen approaching the bar by one of their number, the fact made so little impression that they ceased observing the tug and her tow,
The real cause of the disaster is shown plainly by the uncontradicted testimony of all the eyewitnesses to have been an unusually high wavé or swell, which rolled in over the bar suddenly and' unexpectedly, the origin of which was a disturbance at a distant .point on the ocean. The Fidelity was in ballast, and she usually carried only about 20 tons, and there is no evidence tending to prove that she had a greater' quantity on this occasion. With that amount of ballast, a light draught vessel of her capacity would be, as described by Capt. Lawson, “like an eggshell,” in a heavy sea. The wave lifted her stern out of the water, and, instead of settling back, she careened, and the second wave coming completely capsized her. The disaster was sudden, and fully completed within a very few moments. Capt. Smith’s description of the occurrence, in his testimony, is as follows:
“I saw her when she evidently took her first sea on the bar, because I could see her stern lifted. * * * I suppose she then commenced running ahead. After it lifted a while she gradually' swung to the east and north, and evidently nearly stepped. The second sea threw her down to about forty-five degrees, I should think; and then I jumped up in my boat, — I jumped up on the seat, — and when I got up on top of the seat I saw her keel.”.
The disaster can be attributed to only one cause, — a peril of the sea, — for which no blame can be imputed to any person. It was not an inevitable consequence of crossing' the bar at that particular time. The tug might have waited until the turn of the tide. If she had done so, the time would not have been more opportune, for by that time the wind had increased to about its maximum velocity for the day, and the sea was necessarily rougher than at any time during the forenoon; and if the tug had delayed for days or weeks or months she might still,, in crossing the bar, have encountered a swell from ihe ocean, equally as dangerous.
It is my opinion that the judgment appealed from should be reversed, with costs, and the cause remanded, with instructions to enter a decree declaring the appellant to be exempt from all liability.
