Smith v. Lampe

• Decision Date: 14 March 1933
• Docket Number: No. 6208.,6208.
• Citation: 64 F.2d 201
• Parties: SMITH v. LAMPE.
• Court: U.S. Court of Appeals — Sixth Circuit

64 F.2d 201 (1933)

SMITH v. LAMPE.

No. 6208.

Circuit Court of Appeals, Sixth Circuit.

March 14, 1933.

George W. Cottrell, of Cleveland, Ohio (McKeehan, Merrick, Arter & Stewart and George C. Mulvihill, all of Cleveland, Ohio, and G. A. Resek, of Lorain, Ohio, on the brief), for appellant.

Dorr E. Warner, of Cleveland, Ohio, for appellee.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

The suit below was in admiralty by libel in personam; the libelant seeking damages for the stranding of the barge, State of Ohio, on the shore of Lake Erie near Lorain, Ohio, and claiming that negligent signaling by the respondent with the horn of his automobile during a fog caused its loss. From an interlocutory decree in favor of libelant, the respondent appeals.

The appellee, Lampe, the libelant below, was the owner of the wrecked barge and of the tug Peerless, engaged in taking sand from Lake Erie and delivering it at dock in Lorain. On December 18, 1929, during a thick fog, and after government fog signals had been discontinued for the winter, the vessels were out on the pumping ground, a distance of about nine miles from Lorain, the barge in tow of the tug. An arrangement had been made between Lampe and the captain of the tug that if the fog continued Lampe would go out to the breakwater and "blow them in." The vessels left the pumping ground about 1:15 in the afternoon, took their usual course to Lorain, and when within about fifteen minutes of the time required to make the run to the harbor checked down and blew fog signals, three blasts, and listened for an answer. Not hearing answering signals, the vessels cruised down the lake on a line parallel with the shore, and then back again, continuing their signals for some time. Smith, the appellant, and responded below, lived on Lakeside avenue, close to the shore of the lake. On the afternoon in question, at about three o'clock, he heard signals of boats out in the lake. Upon going to the shore he could hear the noise of engines, but didn't know what boats they were. The noise becoming louder, indicating to him a nearer approach to the shore, he returned to his home, contrived a megaphone, and called to the boats. For a time it seemed to him that they drew away from the shore. He thereupon returned for his automobile, and came to the foot of Colorado avenue, for the purpose of locating the boats so as to inform the Coast Guard commander where they were. Again hearing the noise of engines, he blew warning signals with his automobile horn. When satisfied that the boats were again pulling away from the shore, Smith left his post to inform the commander of the Coast Guard that there were two boats on the lake trying to make the harbor. It was then for the first time that he learned whose boats they were. The commander of the Coast Guard left the life saving station in his boat at 4 o'clock, and Smith returned to the foot of Colorado avenue. The captain of the tug, hearing signals from the shore, and believing that they came from a launch at the entrance to the harbor, headed in the direction of the signals, blowing fog signals himself, and believing he was receiving fog signals in reply. Meanwhile soundings were being taken until the tug was in about twenty-one feet of water. The soundings indicating that the boats were not making the harbor entrance, the tug was turned back on the opposite course. It came round without any mishap, but the barge came only half way round when it struck a rocky bottom. A hole was cut in her, she filled with water and sank, resulting in total loss of the vessel and her cargo.

It is the claim of the libelant that Smith negligently interfered with the navigation of the boats, that his negligence lured the barge to its destruction, and that such negligence was the proximate cause of the loss.

We are met at the outset with a jurisdictional question. Smith and Lampe both being citizens and residents of Ohio, there is only one ground upon which jurisdiction may be retained, and that is if the suit is properly brought in admiralty. It is the contention of the respondent that, if any tort was committed, it was committed on land, and an action to recover consequential damages is one within the common law, rather than the admiralty jurisdiction. With this contention we cannot agree. It was held by this court, Dorrington v. City of Detroit, 223 F. 232, 242, that where the negligent act originates on land and the damage occurs on water, the cause of action is within the admiralty jurisdiction. One of the cases relied upon was Milwaukee v. The Curtis, 37 F. 705, 3 L. R. A. 711 (D. C.), where it was made clear that the locality of the thing to be considered is that of the thing injured, and not of the agent causing the injury, and that when the injury is to a vessel afloat, even though the negligence originated on land, the tort is maritime, and within the admiralty jurisdiction. See, also, ...