61 F. 364 | 2d Cir. | 1894
About 3:30 a. m. of March 30, 1893, the City of Norwalk, a steamboat belonging to the New York & Nor-walk Steamboat Company, came inlo collision with car float No. 16, in tow of the tug Transfer No. 4, both belonging to the New York, New Haven & Hartford Railroad Company in the East liver, just above Blackwell’s Island. The Norwalk sustained damages, and Patrick McCullough, her- engineer, lost his life. The owners of the Norwalk libeled the tug and car float. The district judge held both tug and steamboat in fault, and divided the damages. From such decree the railroad company appealed. 55 Fed. 98. McCullough’s administratrix sued the owners of both boats, alleging a joint wrong. The court below found both boats in fault, and the deceased free from contributory negligence; it assessed the damage's at the statutory amount ($5,000), and condemned the owners of the tug to pay one-half, absolving the owners of the City of Norwalk from payment, on Hie ground that the intestate was an employe, and could not recoven- for negligence of a fellow servant. The railroad company and the administratrix (libelant) both appended.
The case between the owners of the two boats may be first considered. At the time of the collision Hie; weather was fair; the night starlight, but dark; the tide was ebb, anel the current about four knots. The City of Norwalk came down the river at a speed of about 8 knots (making about 12 by land), and rounded Hallett’s point, where there is a sharp be;nd. She was hound for New York, and from Hallett’s point cernid have proceeded either down the westerly channel, between Blackwell's Island and the New York shore, or down the easterly channel, bevtwe-e'n that island and the Long Island shore. It was her intention to pursue the former course, which was her usual one, although someiimes, when she had freight for points on the east shore, she took the easterly channel. The tug, with the car float lashed to her starboard side, came slowly «gains!, Hie tide, through Hie channel to the east of Blackwell’s Island, hound for the New Haven docks in the narlem river. From the island she might either have proceeded in an eddy along the Astoria shore, passing between Hallett’s point and Flood Rock, and thence northerly of Flood Rock and Mill Rock, or, as she cleared the island, she might have struck across to the New York shore, keeping to the southerly of the two rocks above mentioned, and so
Manifestly this collision happened because the master of each vessel inferred from such indications as he noted that the other was about to take a particular one of two known courses, when, in fact, that other’s intention was to take the other course. It is the very object of the law providing for the giving of signals to increase the number of indications which may be noted and reasoned from, thus promoting the accuracy of the inferences drawn from them. That both vessels failed to conform to the inspectors’ rules is hardly
The case of the administratrix against the owners of the two vessels presents some further questions. It is contended that a libel in personam for damages for loss of life under the state statute cannot be maintained in admiralty. This objection has been most exhaustively discussed by the learned district judge, and all the authorities bearing upon it stated and analyzed. There is nothing to add to his disposition of the question in the subdivision of his opinion which deals with it, except to say that we fully concur therein. The damages were the result of a tort committed on navigable waters of the United States,—the tort by place and circumstance a maritime one; the locality was within the waters of a state which by its statute gave to the administrator of the person killed a right to receive, for the benefit of the next of kin, a sum of money by way of damages for the death of the intestate. The supreme court has expressly held that such statotes are valid, even when the tort was committed on navigable waters, in the absence of any regulation
The only question left for consideration is whether the fact that the collision which caused the damage was due in part to the negligence of the master of the City of Norwalk will prevent any recovery by the administratrix against the owner of that vessel, on the theory that the master and the deceased were fellow servants. On this point we disagree with the district judge, being of the opinion that the case is entirely within the principle laid down in Railway Co. v. Ross, 112 U. S. 394, 5 Sup. Ct. 184. There the conductor of a railway train was held not to be a fellow servant with the engineer, because the conductor had its entire control and management, commanded its movements, directed when it should start, at what stations it should stop, at what speed it should run, and exercised control over the persons employed upon it. We are unable to distinguish such a conductor from the master of a ship, who, certainly while he is on deck and in command, directs its movements, regulates its speed, and controls the ship’s company. If the conductor represents the owner, as a vice principal, most certainly the master does. The distinction drawn in Quinn v. Lighterage Co., 23 Fed. 363, is not applicable, for the master was in charge of the steamer and acting as master. He was exercising command, not simply assisting in the discharge of some minor duty entirely outside of a master’s functions; and, while thus in command, directing the steamer’s movements, he so negligently directed them as to cause collision.
The decree of the district court in the. libel of the steamboat company against the Transfer is affirmed, Avith interest and costs. In the other case the decree in favor of the libelant against the railway .company is affirmed, with interest; the decree dismissing the libel against the Norwalk Steamboat Company is reversed, and cause remanded, with instructions to decree against that company for half the statutory damages, with interest, and costs of both courts.