Lewis v. Davis

3 Johns. 17 | N.Y. Sup. Ct. | 1808

Kent, Ch. J.

delivered the opinion of the court. Ad-' mitting the rule of the maritime law to be, that mariners are to contribute out of their wages to the damages arising from embezzlements by each other, during the voyage, yet if negligence be not imputable to them, and the circumstances of the case do not fix the presumption of embezzlement upon any of the crew, they ought not to contribute. In the case before us, the first mate gave the crew permission to go on shore, requiring only that the second mate should return and sleep on board. The loss ought, in justice, to attach upon the person to whom the care of the vessel was committed for the night. The conclusion which has been drawn against any collusion or negligence on the part of the crew, cannot be said to be unwarranted by the testimony. The mate commands in the absence of the master, and after the decision below upon the facts, (which is equivalent to a verdict) we may well conclude that the master was not on board, and that the permission given by the mate was competent to justify the crew. If the loss be chargeable to the negligence of the second mate, who ought to have returned on board, I do not think it just or reasonable, that the seamen who remained on shore by lawful permission, should be held to a contribution. Molloy does not state the rule on this subject with much precision, nor is he of much authority; but he rather seems to place it upon the ground of fault or negligence in the mariners ; (book 2. c. 3. § 9.) and even the limited extent to which he carries it, in this instance, has been recently questioned or denied by the court of C. B. in the case of Thompson v. Collins, (4 Bos. & Pul. 347.) who were inclined to think that each person ought to answer for his own default. On the other hand, the mutual responsibility of seamen has been carried to a greater extent in the decrees of the district court of Pennsylvania, (1 Peter’s Adm. 243.) and further, I apprehend, than in any of the marine ordinances annexed to the reports of those respectable decisions. Assuming, however, the rule to the extent in which it is laid down in. Molloy, it is sufficient that the facts in this case did not lead to the conclusion, that the plaintiff below was chargeable with fault or negligence, or that the embezzlement was to be imputed to any of the crew. We are, therefore, of opinion, upon the consideration of the case, that the judgment below must be affirmed.

Judgment of affirmance.