18 F. Cas. 644 | U.S. Circuit Court for the District of Eastern Virginia | 1874
As to the first two objections, I think they are clearly untenable, from the evidence. The tug had towed the schooner on a former occasion for hire; and there was, independently of that fact, enough in this transaction to imply - a contract for hire. It cannot be questioned that the backing of the tug for the distance of twenty yards upon the schooner, which caused the collision, was by the fault of those upon the tug. Her master was bound to the observance of care and diligence, and the facts proved upon him carelessness and positive blame.
The third objection cannot be sustained. The collision left the schooner helpless in the canal, liable to continual injury from passing vessels and otherwise. For such injuries as she was liable to sustain while in that condition, the tug was responsible. She is therefore liable for the cost of repairs for the injury which the schooner did actually sustain on the day after the collision. This is a much stronger case than that of The Narragansett [Case No. 10,017], where the court gave costs resulting from damage happening in consequence of the collision, from the injured vessel upsetting before she was got into port.
The fourth objection merely goes to the form of the libel, and not to the substance. The objection is such as can be cured by amendment at any time before the decree, and leave is given to make the amendment This libel is in fact for tort, and the only informality consists in its using the phrase “in a cause of contract” when it ought to have said “in a cause of collision,” in its opening statement of the cause of action. A like objection was overruled in the case of The Quickstep, 9 Wall. [76 U. S.] 665, where it was decided that the recital of a contract for towage in a libel for collision does not necssarily convert the libel into a proceeding on the contract. In truth, there was cause of action, both for breach of contract or bailment, and for collision; and both
Coming, therefore to the fifth objection, and that on which counsel for defence laid chief stress, I am called upon to decide whether the jurisdiction of the admiralty courts of the United States extends to a tort committed on a canal, connecting two navigable rivers affected by the tides. The “Virginia Cut” of the Albemarle and Chesapeake Canal has capacity to pass a vessel of a thousand tons; and for an aggregate tonnage of fifty millions a year. An annual commerce of 400,000 tons passes through it. The number of vessels, masted and otherwise, traversing it per an-num is now about 6000. It has but one lock, which is 220 feet long and 40 feet broad, and this is a tidewater lock. It connects the waters of the Elizabeth and North rivers, of Hampton Roads and Albemarle Sound, and is part of an inside chain of navigation parallel to the coast, extending from New York to Florida. It is a part of the great system of navigable waters of the Atlantic seaboard of the United States; and the magnitude and character of its commerce are such as undoubtedly place it within the admiralty jurisdiction, if it is not withdrawn therefrom by the fact that it is an artificially constructed work, open to the public, but owned by a private corporation.
Judicial opinion, as to the admiralty jurisdiction, has been quite progressive in this country. At first, the narrow view of the old English common law judges obtained in our courts; and it was held that the admiralty jurisdiction with us extended only to tidewaters, and to rivers navigable from the sea as far as they were affected by the tides. Such was the tenor of the decision of the United States supreme court in the case of The Thomas Jefferson, rendered in 1825, see 10 Wheat. [23 U. S.] 428. The position thus taken was held for twenty-six years by the court. The vast commerce of the Mississippi river and its tributaries, as well as of the Great Lakes and their connecting waters, was thus deprived of the benefit of the system of admiralty jurisdiction which had grown with the growth and accommodated itself to the wants of the commerce of the world for centuries. Some relief from this decision was found necessary. The position taken by the supreme court in The Thomas Jefferson [supra], compelled a resort to some legislative provision for the commerce of the Great Lakes and rivers; and, accordingly, congress, by the act of February 26, 1845 [5 Stat. 726], gave jurisdiction in the nature of admiralty jurisdiction to the district courts of the United States “in all matters of contract and tort,” upon vessels of twenty tons, etc., etc., arising upon the Lakes and the waters connecting them. Under this act, the courts of the United States took cognizance of the class of causes it names arising in those waters, for some six years. In such causes they did not act as admiralty courts; they did not administer an admiralty jurisdiction; they acted under statutory authority as quasi admiralty courts, and administered a statutory jurisdiction in the nature of the admiralty and maritime jurisdiction. By 1851 the supreme court had arrived at a different opinion of the proper jurisdiction for the admiralty courts of the United States from that which it had held in the case of The Thomas Jefferson in 1825. Commencing in that year with the case of The Genesee Chief [12 How. (53 U. S.) 443], a case of collision occurring on Lake Ontario, in a chain of decisions reaching down to The Eagle [8 Wall. (75 U. S.) 15], decided in 1868, it has assumed positions more and more advanced on this subject, until it has come do hold that the act of 1845 conferred no powers upon the district courts of the United States which they did not already have as admiralty courts; and that their jurisdiction as admiralty courts not only extends over the ocean and its bays and harbors, its gulfs and waters, but to the inland lakes and their connecting waters, and to the interior rivers of the country to the extent of their navigable capacity, holding that the navigability of waters, open and public, brings them within the admiralty jurisdiction, and not the circumstance of their being affected by the tides or of their emptying . into or opening from tidewaters. I have examined these decisions carefully, and I nowhere find that the supreme court, in defining the waters over which the admiralty jurisdiction of the district courts extends, uses any discrimination between natural public waters and artificial public waters. Chief Justice Taney, in The Genesee Chief [supra], employed language which has been substantially adopted in all recent decisions of that tribunal. He said: “There can be no reason for admiralty power over a public tidewater which does not apply with equal force to any other public waters used for commercial purposes and foreign trade,” using the word public in the sense of open to the public.
I know of but one case that has come before our courts in which this question, whether the admiralty jurisdiction extends to a canal has occurred. That was the case of Scott v. The Young America [Case No. 12,549], in which there was a collision on the Welland Canal, which is on British territory. Judge Wilkins held that the court had jurisdiction there, even under the act of 1845; which must be confessed to be a far weaker source of authority in admiralty causes arising in a foreign country, than the admiralty and maritime law itself, and the jurisdiction confers.
Another canal case was that of The Diana, decided in England and reported in [1 Lush. 539], which was quoted approvingly by our supreme court in The Eagle, 8 Wall. [75 U. S. 15]. I have not been able to consult the reporter of that case, but it was one of collision on the Great Holland Canal in 1862. The objection there raised to the jurisdiction
A decree may be taken for the libellants for $531.05. the cost of repairs to the vessel, and for $1050, the amount of loss sustained on the fish, and Costs.
