18 Johns. 257 | N.Y. Sup. Ct. | 1820
The verdict of the jury was for the plaintiff; and agreeably to an intimation from the judge, that if they found for the plaintiff, they should state thq grounds of their verdict, they added, that the disaster mas the result of gross negligence in the defendant. Among the
We must consider, after the finding of the jury, that the., injury done, by running down the plaintiff’s vessel, was not’ designed, or intentional; but that it proceeded from the defendant’s negligence^ as captain and commanding officer of the Atalanta.- We are bound, also, to consider the negligence as a personal one, imputable to the acts and omissions of the defendantand that these acts and omissions were gross and palpáble. '
That the force by which the plaintiff’s vessel was destroyed, was the immediate cause of her destruction, proceeding from the collision, cannot be doubted ; and then the question arises, whether, if such an act, producing the injury immediately and directly, be the result of negligence, and not of a -wilful intention, the action ought to be trespass or case. In the case of Leame v. Bray, (3 East, 593.) all the authorities and .preceding cases bearing on this question, were reviewed. That was trespass, charging the defendant with having drove and struck a single horse chaise which the defendant was driving along the highway, with such great force and violence upon and against the plaintiff’s curricle, which his servant was driying, that by means thereof, the servant was thrown out, and the horses ran away with the curricle ; and the plaintiff", to preserve his life, jumped and fell from the same, and fractured his collar bone. It appeared in evidence, that the accident happened in a dark night, owing to the defendant’s driving his carriage on the wrong side of the road, the parties not being able to see each other, and that if the defendant had kept the right side of the road, there was ample room for the carriages to pass without injury j but it did not appear that blame w-as imputable to the defendant in any other respect; and on an objection, that'the injury happened from negligence, and was not wilful, and that the proper action was case and not trespass vi et armis,
The Court of Common Pleas have, undoubtedly, questioned the correctness of the decision in Leame v. Bray, though they have not overruled it. In Rogers v. Imbleton, (5 Bos. & Pull. 117 ) the de.claration was, that the defendant drove his cart against the plaintiff’s horse, with force and violence, whereby he was hurt and bruised, by and through the mere negligence, inattention, and want of proper care, of the defendant. The declaration was demurred to on the ground that it ought to have been trespass. The Court intimated a clear opinion, that as the injury was alleged to have ari
I am perfectly satisfied, from a review of the cases, that if (he defendant is liable at all, this action is appropriate, and that it ought to have been trespass rather than case, as the injury was immediate, and from gross negligence.
2. It.has been objected, that the answers of P'arker and Dodd to the thirteenth interrogatory, ought not to have been read to the jury. These answers relate to the value of the vessel and cargo, and the interrogatory is the general one. It has been contended, that under that interrogatory, nothing can be answered, but what has been before specifically inquir ed into. This has not been shown to be the practice in courts proceeding according to the civil law. I perceive no abuse likely to follow from allowing the witnesses to state every material fact under that interrogatory, not before drawn forth by the special interrogatories, and such, undoubtedly, was the object and end of the general interrogatory. It certainly was not intended to have the witnesses repeat what they had before said; that would be idle and unnecessary. As the facts stated by the witnesses are pertinent, I am of opinion, that they were properly allowed to be read to the jury.
3. It has been insisted, that the verdict was contrary to evidence. This has opened a wide range of inquiry, and I have carefully, and attentively read, and considered the testimony stated in the case. Very much depends on the credibility of the witnesses ; and it became a very important part of the inquiry, whether the accident was attributable to design or negligence on the part of the defendant, or whether it was involuntary and inevitable. It was distinctly placed before the jury, that if it was the result of design or negligence, that then the defendant was answerable for the consequences ; but if it was involuntary and inevitable, then he was not answerable, and a verdict ought to be found in his favour. It was a most material fact, in this view of the case, whether the night was so dark, that those on board the Atalanta, either with the naked eye, or with night glasses, could see the Mary, or not, when she was at a consider
• 4. An exception has been taken to the admission of E. Harvard, the mate of the Mary, as a witness, on the ground that if the plaintiff recovers it is equivalent to the performance of the voyage, and the insuring of freight; and that he will then be entitled to be paid his wages. It has been conceded, that in the case of capture and condemnation, though the owner recovers the amount of freight against the
5. Although the defendant’s counsel excepted to the opinion of the jtidge, at the Circuit, excluding copies of the proceedings instituted by the plaintiff, against the defendant, in the High Court of Admiralty of Great Britain to recover damages for the injury which is the basis of this action ; and also for excluding certain affidavits, with exhibits annexed, taken in the Admiralty case, it has not, as I understand, been made a distinct ground of argument, that these proceedings were emitled to be admitted. The pendency of another suit for the same matter could, at most, only be pleaded in abatement. It is not pretended that- any decision was ever made in the admiralty ; nor that any witnesses examined in that suit are dead, or in a situation not to be reexamined. Under these circumstances, those proceedings were properly excluded.
6. It has been strongly insisted, that this Court has not jurisdiction of the cause ; that it is a case of admiralty, not of common law' cognizance.
The case of Novion v. Hallet, (16 Johns. Rep. 327.) decided in the Court for the Correction of Errors, and the learned and elaborate opinion delivered by Chancellor Kent, settles, iucontrovertibly, that if the original taking was as prize, the court of Admiralty has exclusive jurisdiction of the case $ that the jurisdiction is not affected by the fact that the capture was illegal, or violent, or unjust; that where the admiralty jurisdiction has once attached, by means of such taking as prize, it never can be devested by any matter subsequent, so as to give a Court of common law jurisdiction over the case, as a tort or trespass ; and that the admiralty having jurisdiction of the principal subject, thereby acquires jurisdiction of all the incidents. That court did not profess to decide in what cases Courts of common law have jurisdiction of marine torts ¡ the case itself did not require
Dr. Brown, in discussing the powers and jurisdiction of the admiralty, (2 Brown’s Civil and Ad. Law, ill.) observes, that collisions, or ships running foul of one another, by which one or both are sunk or battered, afford cases of the most frequent occurrence; and he says, that for this damage, if done at sea, remedy may be had in the admiralty. -He then comes to consider whether for sueh injuries, courts of common law have a concurrent jurisdiction. This, he says, may have been doubted, but he thinks it clearly settled, in practice, that they have jurisdiction where the proceeding is not in rem, but merely for damages. He says, Sir 'Leoline Jenkins considered the bringing an action of trover, for a tort on the high seas, as an invasion of the authority of the admiralty. Sir L. Jenkins shows the superior facility and convenience of a suit in the admiralty, where the whole subject matter can be investigated and adjudicated in a single suit, whereas, at law, many might be necessary.
It is well known to those conversant with Admiralty proceedings, that the Court is two-fold : an Instance Court, which takes cognizance of contracts made, and injuries committed on the high seas, and the Prize Court, which has jurisdiction over prizes taken in time of war. The commissions to hold these Courts are distinct, though usually given to one person. The Instance Court is governed by the civil law, the laws of Oleron, and the customs of the Admiralty modified by statute. The Prize Court is to bear ,and determine according to the course of the Admiralty, and the law of nations ; (“2 Brown’s Civil & A dm. Law. 29.) and it cannot be doubted, that when we find it asserted in the books, that for a marine tort merely., redress can be sought in the admiralty, it is always meant in the Instance Court.
It is not to be denied, that the defendant, as the commander of a vessel of war belonging to his Britannic majesty,' hada right, war then existing between England and France, of visiting and searching neutral merchant ships upon the high seas. This, by the laws of nations, is an incontestible right of the lawfully commissioned cruisers of a belligerent
The cases of Le Caux v. Eden, (Doug. 526) Lindo v. Rodney, (Doug. 591. note 1.) Smart v. Wolff, (3 Term Rep. 323.) and many other cases which might be cited, recognize the principle, that for seizing, stopping, and taking a ship on the high seas, not as prize, an action lies at the common law; that a thing being done on the high seas, does not exclude the jurisdiction of the common law; but that for taking as prize no action will lie at the common law, and that the nature of the question did not exclude the locality of the fact. A marine trespass,
It has been thrown out, that for aught we know, British cruisers, at the time this injury was committed, having a right to overhaul neutrals, to search for contraband goods, and to carry them in for adjudication, may, also,- have had instructions, in case of any attempt on the part of neuT trals to escape, to run them down ; and that therefore the trespass, in this case, may have been committed in the exercise of a belligerent right, and, consequently, a Court of common law has not jurisdiction. The facts show that the Mary had submitted, and was in the act of coming under the Atalantaos stern, when the injury took place. The pursuit then was over, and it cannot be tolerated, nor will the Court infer, that the running foul of the Mary was in obedience to any orders given by the*Commissioners of the Admiralty. I again say, that I perceive nothing in the case giving rise to the question of prize or'noprize — nothing involving the laws of nations, or the jvp belli. I perceive nothing but a maritime tort; and, until instructed to the contrary, of such torts, whether committed by a belligerent cruiser upon a neutral, under such circumstances, or by a merchant ship, I cannot but think we have jurisdiction. I am therefore of opinion, that the motion for a new trial ought to be denied.
were of opinion that the verdict ought to be set aside, and a new trial granted.
Motion denied.