Homer Ramsdell Transp. Co. v. Compagnie Generale Transatlantique

• Citation: 63 F. 845
• Parties: HOMER RAMSDELL TRANSP. CO. v. COMPAGNIE GENERALE TRANSATLANTIQUE.
• Decision Date: 01 May 1894
• Court: U.S. District Court — Southern District of New York

63 F. 845

HOMER RAMSDELL TRANSP. CO. v. COMPAGNIE GENERALE TRANSATLANTIQUE.

United States Circuit Court, S.D. New York.

May, 1894

Enoch L. Fancher and William H. Harris, for plaintiff.

Jones &amp Govin (Edward K. Jones, of counsel), for defendant.

WM. G CHOATE, Referee.

This is an action at common law against the owner of the steamship La Bretagne for damages caused to the plaintiff's pier No 42 North river, under the following circumstances: The La Bretagne was lying at her dock, No. 42 North river, on the 10th December, 1892. About five minutes after 8 o'clock in the morning, the tide being about the last of the ebb, the La Bretagne was backed out of her slip in order to start on her voyage to Havre. She was in charge of a Sandy Hook pilot. The tide being ebb, her wheel was put hard a-port, and she was backed towards the west side of the river as far as it is usual or safe to bring her. A tug was employed to push her stern up stream, and her engines were started full speed ahead. She began to turn down the river, but she had reached about the middle of the river, it was observed by the master and pilot, who were together on the bridge, that she had ceased to turn. The master and pilot were in consultation, and the master suggested that it might be better to stop her. The pilot, however, thought that she had still room to turn in the river, and did not immediately give the order to slow or stop; but, after she had run a short distance further, he gave the necessary orders to slow, stop and back at full speed, but, in spite of these precautions, she ran into the plaintiff's pier, striking it with her bow at an angle of 45 degrees, some 20 feet or more from the end of the north side, and inflicted considerable damage.

It is claimed on the part of the defendant that there was no negligence in the management of the steamer on the part either of the master or the pilot, but, at most, an error of judgment, for the consequences of which no action would lie. I think, however, that it is clear that the pilot was negligent. The cause of the arrest of the turning of the steamer was probably an undercurrent of the new flood tide striking her bottom. It was or should have been evident to him, before he gave the order to reverse, that there was great danger of her running into the pier. He is chargeable with knowledge of the tides and currents, and cannot claim as a pilot to have been surprised at the action of the ship. He seems to have supposed that the failure of the ship to turn to starboard was temporary, and would be presently overcome. In this he took too great a risk, and should have given the order to reverse sooner than he did, and thereby the accident would have been avoided.

It is claimed on the part of the plaintiff that there was negligence in going out upon the ebb tide; also, in not employing two tugs instead of one to turn the stern of the ship up stream, and in not continuing the use of the tug which was employed longer in that continuing the use of the tug which was employed longer in that service. It was shown, however, that the tug employed was a powerful tug; that it was customary to employ one tug, and not two, for this purpose; and that the tug so employed pushed against the stern as long as it was practicable to do so after the engines of the ship were started forward, and that it was necessary to start the engines forward to prevent her striking on the other side of the river. It was also proved that steamers backed out and turned in the river upon the ebb tide, and that with proper care on the part of the pilot this can safely be done. These allegations of fault, therefore, appear to me to be groundless.

The next question is whether there was any fault on the part of the master in not interposing his authority to control the action of the pilot, and to insist that he should stop the ship or back her sooner than she was stopped and backed. There seems to be no doubt of the authority for the master in an extreme case to supersede the authority of the pilot, and to take charge of the ship himself, where it is necessary for the safety of the ship or the avoidance of imminent danger. The cases, however, all agree that it must be an extreme case of obvious danger, or incapacity on the part of the pilot, to authorize such interference. As regards the navigation of the ship, she is under the exclusive control of the pilot; and, even while the master believes that the action of the pilot is indiscreet or involves danger, it does not follow that he should interfere with the navigation. He may do his whole duty by pointing out what he conceives to be the danger, and leaving the responsibility where it is, upon the pilot.

In the case of The Maria, 1 W.Rob.Adm. 110, Dr. Lushington says:

'It would be a most dangerous doctrine to hold, except under most extraordinary circumstances, that the master could be justified in interfering with the pilot in his proper vocation. If the two authorities could so clash, the danger would be materially augmented, and the interests of the owners, which are now protected both by the general principles of law and specific enactments from liability for the acts of the pilot, would be most severely prejudiced. It is the duty of the master to observe the conduct of the pilot, and in the case of palpable incompetency, whether arising from intoxication or ignorance or any other cause, to interpose his authority for the preservation of the property of his employers.'

So in The Lochlibo, 3 W.Rob.Adm. 329, the same learned judge says:

'I should never go to the length of saying that the mere suggesting to the pilot on the part of the master to take in this sail, or otherwise to keep as near the South Sand light, and vice versa, or to bring the ship up, was 'interfering,' in the legal acceptation of the term, with the duties of the pilot. Illegal interference is of a different description. If, for example, in this case, the boatswain had called out to the man below to starboard the helm, or if the master had called out to port the helm, it would be interference; but it would not be interference to consult the pilot, or to suggest to him that the measures pursued were not proper, or that other measures would in all probability be attended with greater success.'

In the case of Camp v. The Marcellus, 1 Cliff. 491, Fed. Cas. No. 2,347, Mr. Justice Clifford says:

'While on board, the pilot, in the absence of the master, has the exclusive control and direction of the navigation of the vessel; but if the master is present, the power of the pilot does not so far supersede the authority of the master that the latter may not, in case of obvious and certain disability or gross ignorance and palpable and imminent danger or mistake, disobey his orders, and interfere for the protection of the ship and lives of those on board. Divided authority in a ship with reference to the same subject-matter is certainly not to be encouraged, and can never be justified or tolerated except in case of urgent and extreme necessity. While standing by and witnessing a self-evident mistake, manifestly and imminently endangering the ship and certain to cause a collision, the master should not remain silent, but might well interpose, so far at least as to point out the error and suggest the proper corrective.'

In the present case the master did his full duty in suggesting to the pilot the danger of proceeding, but, in answer to his remonstrance, the pilot explained that he thought the ship would come round. His knowledge, or supposed knowledge, of the tides and currents, and their effects upon the ship, is or should be far superior to that of the master. It is on account of this superior knowledge that the ship is obliged to employ the pilot, and I think it is clear that this case does not come within that class of cases of extreme peril or incompetency in which the master is justified or it becomes his duty to take the management and navigation of the ship out of the hands of the pilot.

The next question is whether the owner of a ship is liable at common law for damages occasioned by the negligence of a pilot compulsorily employed.

There is no doubt in this case that the law of New York compels the ship to employ a pilot appointed by the state. By the New York pilot law, a foreign ship, when inward bound, is obliged to take the first pilot that offers his services. While the masters of certain vessels may be licensed to pilot their own vessels, it is provided in the statute that all vessels from foreign ports shall take a licensed pilot, or, in case of refusal, pay full pilotage; and it is further provided that any person not holding a license who pilots a vessel in or out of the harbor of New York shall be held guilty of a misdemeanor, and any one employing a person not holding a license to pilot a vessel shall forfeit and pay the sum of $100. The provision with regard to outward pilotage is that the pilot who brought in the ship has the right, by himself or one of his boat's company, to take her out, unless he has been complained of for misconduct, subject, however, to the right of the shipowner to object to this particular pilot, in which case the commissioners of pilots shall assign another pilot from the same boat's company to take the ship out. 3 Rev. St. (7th Ed.) pp. 2017, 2019, 2020. If the shipowner were at liberty to select a pilot out of a class of pilots licensed by the state, it could not be held that the shipowner was compelled to take the particular pilot employed. But the right to object to one particular pilot certainly does not make the appointment of another selected by the commissioners from the same boat's crew a voluntary appointment by the owner of the vessel of such substituted pilot.

I...