No. 32 | 2d Cir. | Jan 4, 1901
The two points upon which the counsel for the plaintiffs in error relies are that the stress of weather which prevented attempts at the light-ship to empty the pocket created an unavoidable "accident, which required the court to grant a motion to direct a verdict. for the defendants, and that if the terms of the statute require a conviction, although perils of the sea compel a deviation from the . dumping ground, the statute is so unjust in its character as to violate the spirit of the constitution. Such a construction was not given to the statute by the circuit court. It charged the jury, in substance, .that the necessities of commerce required the protection and preservation of the harbor of the chief commercial city of the country, and 'that an act to protect the waters of the harbor for the purposes of Navigation was within the constitutional power of congress. As experience had shown the necessity of a rigid observance of prohibitory measures against the obstruction of the harbor, there was occasion ■ for an act which would cast rigid responsibilities upon persons who permitted a violation of the statute, but that the act in question did Nbt.mean that there was no excuse in any event for a deviation from 'the specified dumping ground. The act required the captain of the •iugj who was in the general charge of both tug and .tow, to exercise
Upon the precise point in the case, — the alleged combination of an accident and stress of weather which prevented the use of mean's to overcome the accident, — the court charged that if the master got into trouble, and there was such unfavorable weather that he could not correct the trouble, that would be a question for the consideration of the jury. The court further charged, upon the general subject of neglect or inability to discharge the load at the specified place, and upon the particular reason which was presented by the defendants for a return to the harbor with a dumper which had not been emptied, as follows:
“Whether; holding these men to a rigid accountability, which means that they should use that high degree of care in doing this work that its impor-, tance required, has either of them done some act which was negligent under the circumstances, or omitted to do some act the omission of whiclfwas negligent Turner the circumstances V There has been some suggestion here with reference to the unfavorableness of the weather. I suppose you would have to give a common-sense interpretation to that expression. A man cannot come in and say that he did not do ihis because the weather was not favorable for doing it. The question is whether, under all the circumstances: of the case, the weather was so unfavorable that * * * life and property would be jeopardized in attempting- to maneuver out in the water. You have heard what has been said by the captain of the tug and by others as to the condition of the water. It is for you to determine, under all the circumstances of the ease, whether, for instance, it was unsafe for them to have remained out there and tried to wash out this pocket, or to have done any of these other acts which sometimes are done for the purpose of bringing about the complete emptying of the scow.”
That there was a deviation, and that all the cargo was not dumped at the specified place, was admitted; and the question before the jury was whether either of the two defendants was responsible for the deviation, by omitting to do what diligence required him to do in order to avoid such a result. The question of the violation of the statute by each defendant was presented to the jury, and there was no suggestion that the violation by one was a violation by the other, and that therefore both could he found guilty for the act of one alone. The construction of that part of the statute which declares that the master shall be liable for any unlawful dumping which may be caused by the ignorance of the scowman or other emplové was not before the court. We see no reason to conclude that the questions of fact in regard to a violation of the statute should have been taken from the jury, or that the construction, which was given to the statute violated the principles of natural justice. The judgment of the circuit court is affirmed.