| 64
U.S. 209 (Mem) 23 How. 209,
16 L.Ed. 433 (Cite
as: 64 U.S. 209) Supreme
Court of the United States THE
PHILADELPHIA, WILMINGTON, AND BALTIMORE RAILROAD COMPANY, APPELLANTS, v. THE
PHILADELPHIA AND HAVRE DE GRACE STEAM TOWBOAT COMPANY December
Term, 1859 THIS
was an appeal from the Circuit Court of the United States for the district of
Maryland, sitting in admiralty. It
was a libel filed by one corporation against another corporation in the District
Court of Maryland, under the circumstances stated in the opinion of the court.
The District Court decreed in favor of the libellants, the appellees, and awarded
damages to the amount of $7,000.36. The Circuit Court, on appeal, affirmed the
decree, and the railroad company appealed to this court. West
Headnotes Admiralty
k1(1) 16k1(1) The
exception of "infra corpus comitatus" no longer prevails but in such cases, party
may have his remedy either in the common law courts or in admiralty. Admiralty
k4 16k4 Admiralty
k22 16k22 Admiralty
k19 16k19 Leaving
piles in the bed of a tide river within the body of the county, so that a ship
is thereby injured, is a tort cognizable in admiralty. Admiralty
k10(2) 16k10(2) In
contract matters, admiralty jurisdiction depends on nature of transaction; but
in tort matters, on locality. Admiralty
k18 16k18 The
term "torts" when used in reference to admiralty jurisdiction is not confined
to wrongs or injuries committed by direct force but includes also wrongs suffered
in consequence of the negligence or malfeasance of others, where the remedy at
common law is by an action on the case. Admiralty
k18 16k18 The
jurisdiction of courts of admiralty in matters of contract depends on the nature
and character of the contract, but in torts it depends entirely on locality. Admiralty
k18 16k18 Admiralty
has jurisdiction over all torts and injuries committed upon the high seas, and
in ports or harbors within the ebb and flow of the tide. Appeal
and Error k1013 30k1013 The
Supreme Court will not reverse a decree merely upon a doubt created by conflicting
testimony with respect to damages. Master
and Servant k324 255k324 Contractors
with a railroad company were to build a bridge, and upon completion to remove
all piles, etc., used in the construction. After the piles were driven, the company
dismissed the contractors from further performance, and they thereupon cut off
the piles just below the surface, so that a vessel ran on them and was injured.
Held, that upon such dismissal, before completion, it became the duty of the railroad
company, and not of the contractors, to remove the obstructions, and therefore
they were liable. Navigable
Waters k20(4) 270k20(4) A
railroad company which under authority of law undertook construction of a bridge
but which before completion determined to discontinue construction and to dismiss
the contractors, was required to take care that all obstructions to navigation
placed in channel by its orders for purpose of intended erection were removed. Navigable
Waters k20(5) 270k20(5) Where
steamboat sustained injury in collision with submerged piles which contractor
engaged by railroad had failed to remove from river when railroad abandoned construction,
railroad could not avoid liability for damage on ground that piles were placed
in river by contractor. Sunday
k26(1) 369k26(1) That
the libelant's ship was sailing on Sunday does not relieve the defendant from
liability to answer for his own negligence in leaving obstructions in the river,
causing an injury on that day.
*209 It was argued by Mr. Schley and Mr. Donaldson for the
appellants, and by Mr. Dobbin for the appellees. The
counsel for the appellants made the following points:*210 1.
That the District Court of the United States has no jurisdiction in a case like
the present. The
cases show that 'marine torts,' over which courts of admiralty have jurisdiction,
are trespasses done and committed on navigable waters, as in the case of a collision
between two vessels; and a main ground on which such cases have been put is the
power in rem possessed by those courts, but not by courts of common law. The
placing and leaving the pile in the bed of the Susquehanna, and within the body
of a county, was a nuisance at common law, and the appellee's remedy was in the
State courts, in an action on the case for particular damage caused by that nuisance.
Indeed, the ordinary rules of an admiralty court in apportioning damages could
not be made applicable to such a case. The
question is not one of mere locality. The subject matter itself is not within
the admiralty jurisdiction; and it is believed that none of the decisions of this
court have gone to an extent which would include it. Conkling,
21, 24. Thomas
v. Lane, 2 Sumn., 9, 10. Cutler
v. Rae, 7 How., 737. Schooner
Tilton, 5 Mason, 465. Waring
v. Clark, 5 How., 467. Angell
on Tide Waters, 113. Hancock
v. York N. and B. R. W. Co., 70 E. C. L. Rep., 347. Abbott
on Shipping, 233. 9
Stat. at Large, 1851. 2.
That the appellees could not recover in this case, because they were engaged in
an unlawful act at the time when the accident occurred, which caused the injury
complained of. The steamer Superior left her wharf at Havre de Grace, with a fleet
of canal boats, on Sunday, the 11th May, 1856, and while engaged in towing the
boats down the Susquehanna on that day, struck the pile which disabled her. It
is the law of Maryland, that no person whatever shall work or do any bodily labor,
or willingly suffer any of his servants *211 to do any manner of work or
labor, on the Lord's day, works of necessity and charity excepted; and a penalty
is prescribed for the breach of the law. There
is nothing in this provision inconsistent with any of the laws of the United States
regulating commerce, and the Federal courts would therefore take notice of and
conform to the law of the State. Act
of Assembly of Md., 1723, c. 16, sec. 10. Bank
of U. S. v. Owens, 2 Pet., 527. Bosworth
v. Inhabitants of Swansea, 10 Metc., 363. Robeson
v. French, 12 Metc., 24. Phillips
v. Innes, 4 Clark and Fin., 234. Smith
on Contracts, 171. 3.
That even if the appellees could in the present case recover in admiralty against
any party, they still had no cause of action against the appellants; the act of
negligence which caused the injury not having been the act of the appellants or
of its servants. The
evidence shows that the Superior struck upon a sight-pile driven by the servants
of Messrs. Goss, Cooke, & Co., who had contracted for a stipulated compensation
to build the piles of the bridge across the Susquehanna. By
the second sentence of the 9th section of that contract, the contractors were
'to furnish (and remove when done with) all scaffolding and piles that may be
used while building;' which terms, according to the testimony of engineers and
experts, included the sight-piles, which were necessary to the proper construction
of the bridge. It was the duty of the contractors to remove these sight-piles
when done with; and the act of the contractors, or of their servants, in sawing
off those piles below the surface, and leaving them so as to obstruct the navigation,
was in no sense the act of the appellant. There
is nothing to show that the appellant ever had knowledge of the fact that these
piles were sawed off, instead of being removed, as the contract required; and
the termination of the contract could not make the appellants liable for the consequences
of a previous wrongful act of the contractors, the *212 appellants not
consenting either to making or continuing the nuisance. Allen
v. Hayward, 53 E. C. L., 974. Reedie
v. London and N. W. R. W. Co., 4 W., H., and G., 244, 245. Knight
v. Fox, 5 Exch., 721. Steel
v. S. E. R. W. Co., 32 E. C. L., 366. Overton
v. Freeman, 73 E. L. and E. Rep., 866. Peachey
v. Rowland, 13 C. B., 182, (76 E. C. L. Rep.) Blake
v. Ferris, 1 Seld., 48. Hilliard
v. Richardson, 3 Gray, 354. Rapson
v. Cubitt, 9 M. and W., 710. Milligan
v. Wedge, 40 E. C. L., 177. Burgess
v. Gray, 1 C. B., 578, (1 Man., Grang., and Scott.) 4.
That the sinking of the Superior after striking upon the sight-pile was owing
to the mismanagement of her captain, and the appellees cannot be entitled to recover
the damages consequent upon her sinking, for the cost of raising her, or the loss
of time while she was under water. The
testimony of a number of steamboat captains, and of persons well acquainted with
the river near Havre de Grace, shows that the true course for the captain to have
pursued, after the vessel struck, was to run her upon the flats indicated on the
illustrative map by the letters C, B, D; and that if he had done so, she would
not have sunk. Even
if there was no error in returning to the wharf, the evidence shows great want
of care in the omission properly to secure the vessel to the wharf, and in other
particulars. 5.
That the amount of the decree is greater than the actual loss which naturally
or necessarily resulted from the injury; and greater, indeed, than the total value
of the injured boat. Mr.
Dobbin, for the appellees, made the following points: 1.
That the steamer 'Superior,' the subject of the injury, being, at the time of
the wrong committed, a licensed vessel, sailing in her lawful business, on waters
within the ebb and flow of the tide, a court of admiralty has jurisdiction to
redress *213 any trespass upon her, notwithstanding an action at law might
have been maintained for the same injury. 3
Story on Con., 530. 2
Brown's Civil and Ad. Law, 110, 203. Thomas
v. Lane, 2 Sumner, 9. The
Ruckers, 4 Rob. Ad. R., 73. Steele
v. Thatcher, Ware's Rep., 98. Thackery
v. the Farmer, Gilp. R., 529. Waring
v. Clark, 5 How., 464. New
Jersey S. B. Co. v. Merchants' Bank, 6 How., 431, 432. Manro
v. Almieda, 10 Wheat., 473. Plummer
v. Webb, 4 Mason, 383. Chamberlain
v. Chandler, 3 Mason, 242. Bees
Ad. R., 369. Angell
on T. W., 119. The
Volant, 1 W. Robinson, 387. Zouch,
117, 122. Com.
Dig. 'Admiralty' E., 13. Sir
Leoline Jenkins, 2 Brown's C. and Ad. L., 475. De
Lovio v. Boit, 2 Gall., 437. Judge
Winchester, 1 Pet. Ad. Dec., 234. 2.
That the act of Assembly of Maryland did not contemplate a restraint on the sailing
of vessels engaged in foreign commerce, or in the coasting trade, and that, if
it did, such restraint is repugnant to the Constitution and laws of the United
States; and that the 'Superior,' being a vessel duly enrolled and licensed, in
the district of Philadelphia, for the coasting trade, had a right to pursue such
trade without any restraint thereon by the laws of the State of Maryland, in respect
to the time within which such coasting trade might be prosecuted. Gibbons
v. Ogden, 9 Wheat., 240. Brown
v. State of Maryland, 12 Wheat., 448. Brown
v. Jones, 2 Gall., 477. Willard
v. Dorr, 3 Mason, 93. 3.
That the railroad company, and not the contractors under them, are responsible
for the injury:*214 First--because
the whole work was done under the direction and superintendence of the company,
the contractors undertaking to do only as directed by the company's engineers;
and there being no proof that the contractors violated their instructions, the
presumption is that all that was done was by order of the company's superintendent. Second--because
the pile upon which the steamer ran was not such an one as is contemplated by
the contract, where it speaks of 'scaffolding and piles that may be used while
building,' the proof being that this was one of a group erected away from the
line of the bridge, for the exclusive use of the company's engineers employed
in performing the duty of superintendence, which the company had reserved to itself. Third--because,
at the time of the accident, the company had discharged the contractors, and taken
possession of all that was built of the bridge, in its then unfinished condition;
and they are responsible for any damage which might arise from their leaving the
work in a position to inflict injury upon vessels navigating the Susquehanna. 4.
That the captain of the steamer exercised the utmost prudence, skill, and judgment,
after the accident, as the record abundantly shows; but even if this were less
apparent as a question of fact, it having undergone full examination in the District
Court, and in the Circuit Court on appeal, this court will not disturb the decree,
unless in a clear case of mistake. Walsh
v. Rogers, 13 How., 284. 5.
That the sum decreed against the appellant is less than the proof shows to have
resulted from the injury. Williamson
v. Barrett, 13 How., 110. Mr.
Justice GRIER delivered the opinion of the court. A
brief statement of the facts of this case will be sufficient to show the relevancy
of the questions to be decided. The
appellants were authorized by a statute of Maryland to construct a railway bridge
over the mouth of the Susquehanna river, at Havre de Grace. They entered into
an agreement with certain contractors, to prepare the foundations and erect the
piers. In pursuance of their contract, these persons drove *215 piles into
the channel of the river, under the direction of the engineers employed by the
appellants. Before the completion of the contract, the appellants abandoned their
purpose of building the bridge, and discharged the contractors. During the progress
of the work, the contractors had driven certain piles, called sight-piles, into
the channel of the river, which were not removed or cut off level with the bottom,
but were cut a few feet under the surface of the water, so that they became a
hidden and dangerons nuisance. The steamboat Superior, engaged in towing boats
between Philadelphia and Havre de Grace, left a port in Maryland on Sunday morning,
and soon after came into forcible collision with one or more of these piles; in
consequence whereof she suffered great damage, and for which this libel was filed. The
appellants have, in this court, insisted chiefly on three points of defence to
the charges of the libel: I.
It is contended that the 'marine torts,' over which courts of admiralty have jurisdiction,
are trespasses done and committed with force on the sea and navigable waters,
such as collision of vessels, assaults, &c., and that the placing and leaving
the piles in the bed of the river, and within the body of a county, is a nuisance
at common law, and the remedy of the appellees should have been by an action on
the case. The
jurisdiction of courts of admiralty, in matters of contract, depends upon the
nature and character of the contract; but in torts, it depends entirely on locality.
If the wrongs be committed on the high seas, or within the ebb and flow of the
tide, it has never been disputed that they come within the jurisdiction of that
court. Even Lord Coke (4 Inst., 134) declares, 'that of contracts, pleas, and
querels, made upon the sea or any part thereof, which is not within any county,
the admiral hath and ought to have jurisdiction.' Since
the case of Waring v. Clark, (5 How., 464,) the exception of 'infra
corpus comitatus' is no longer allowed to prevail. In such cases, the party
may have his remedy either in the common-law courts or in the admiralty. Nor is
the definition of the term 'torts,' when used in reference to admiralty
jurisdiction, confined to wrongs or injuries committed *216 by direct force.
It includes, also, wrongs suffered in consequence of the negligence or malfeasance
of others, where the remedy at common law is by an action on the case. It is a
rule of maritime law, from the earliest times, 'that if a ship run foul of an
anchor left without a buoy, the person who placed it there shall respond in damages.'
(See Emerigon, vol. 1, page 417; Consulat de la Mer., chap. 243; and Cleirac,
70.) In
the resolution of the twelve judges, in 1632, it was determined in England, 'that
the courts of admiralty may inquire of and redress all annoyances and obstructions
that are or may be any impediment to navigation, & c., and injuries done
there which concern navigation on the sea.' Hence,
'the impinging on an anchor or other injurious impediment negligently left
in the way,' has always been considered as coming within the category of maritime
torts, having their remedy in the courts of admiralty. (See 2 Brown Civ. and Adm.,
203.) The
objection to the jurisdiction of the court is therefore not sustained. II.
The testimony showed that the injury to the steamer was caused by her coming in
contact with one of the sightpiles, driven into the channel by the contractors,
and left in the situation already stated. This
contract is set forth at length. It showed that the contractors were bound to
'provide all necessary machinery, &c., and to furnish (and remove, when done
with) all scaffolding and piles that may be used while building.' It
is contended by the appellants that they are not liable for the negligence which
caused this injury, because the piles were not placed in the channel by their
servants, but by those of the contractors; and that the case was not altered by
the fact that the contractors were directed to do so by the engineers, who were
the servants of appellants. If
the contractors had proceeded to complete their contract, and left the piles in
the condition complained of, this defence to the action might have availed the
appellants. But as the driving the piles for the legitimate purpose of the erection
was *217 by authority of the law and in pursuance of the contract, the
contractors had done no wrong in placing them there. The nuisance was the result
of the negligence in cutting off the piles, not at the bottom of the river, but
a few feet under the surface of the water. This the contractors were bound to
do, after the piles had served their legitimate purpose in the construction of
the bridge, and after they had completed their contract. But before this, the
railroad company determined to discontinue the erection of the bridge. They dismissed
the contractors from the further fulfilment of their contract. Under such circumstances,
it became the duty of the appellants to take care that all the obstructions to
the navigation, which had been placed in the channel by their orders, and for
the purpose of their intended erection, should be removed. The nuisance which
resulted from leaving the piles in this dangerous condition was the consequence
of their own negligence or that of their servants, and not of the contractors. III.
The appellants urge, as a further ground of defence, that this collision took
place on Sunday, shortly after the steamboat had commenced her voyage from a wharf,
'parcel of the territory of Harford county, in the State of Maryland; that the
boat was used and employed by her owners in towing canal boats; and that, when
entering on her voyage, those who had her control and management were engaged
in their usual and ordinary work and labor--the same not being a work of necessity
or charity--contrary to the laws of the State of Maryland.' A
statute of Maryland forbids persons 'to work or do any bodily labor, or to willingly
suffer any of their servants to do any manner of work or labor, on the Lord's
day--works of necessity and charity excepted;' and a penalty is prescribed for
a breach of the law. It
has been urged, that there was nothing in this provision inconsistent with any
of the laws regulating commerce, and that the Federal courts should therefore
take notice of and conform to the laws of the State. But
assuming this proposition to be true, the inference from it will not follow as
a egitimate conclusion; for, if we admit *218 that the master and mariner
of a ship or teamboat are liable to the penalty of the act for commencing their
voyage from a port in Maryland on Sunday, it by no means follows that the appellants
can protect themselves from responding to the owners of the vessel for the damages
suffered in consequence of the nuisance. The
law relating to the observance of Sunday defines a duty of a citizen to the State,
and to the State only. For a breach of this duty he is liable to the fine or penalty
imposed by the statute, and nothing more. Courts of justice have no power to add
to this penalty the loss of a ship, by the tortious conduct of another, against
whom the owner has committed no offence. It is true, that in England, after the
statute of 29, ch. 2d, forbidding labor on the Lord's day, they have, by a course
of decision perhaps too obsequiously followed in this country, undertaken to add
to the penalty, by declaring void contracts made on that day; but this was only
in case of executory contracts, which the courts were invoked to execute. It is
true, that cases may be found in the State of Massachusetts, (see 10 Metcalf,
363, and 4 Cushing, 322,) which, on a superficial view, might seem to favor this
doctrine of set-off in cases of tort. But those decisions depend on the peculiar
legislation and customs of that State, more than on any general principles of
justice or law. (See the case of Woodman v. Hubbard, 5 Foster, 67.) We
would refer, also, to a case very similar in its circumstances to the present,
in the Supreme Court of Pennsylvania, in which this subject is very fully examined
by the learned chief justice of that court; and we concur in his conclusion: 'That
we should work a confusion of relations, and lend a very doubtful assistance to
morality, if we should allow one offender against the law, to the injury of another,
to set off against the plaintiff that he too is a public offender.' (See Mohney
v. Cook, 26 Penn. Reps., 342.) We
do not feel justified, therefore, on any principles of justice, equity, or of
public policy, in inflicting an additional penalty of seven thousand dollars on
the libellants, by way of set-off, because their servants may have been subject
*219 to a penalty of twenty shillings each for breach of the statute. Moreover,
the steamboat in this case was sailing on a public river, within the ebb and flow
of the tide; she had a coasting license, and was proceeding from a port in one
State to a port in another. Has it ever been decided that a vessel leaving a port
on Sunday infringes the State laws with regard to the observance of that day? We
have shown, in an opinion delivered at this term, that in other Christian countries,
where the observance of Sundays and other holidays is enforced by both Church
and State, the sailing of vessels engaged in commerce, and even their lading and
unlading, were classed among the works of necessity, which are excepted from the
operation of such laws. This may be said to be confirmed by the usage of all nations,
so far, at least, as it concerns commencing a voyage on that day. Vessels engaged
in commerce on the sea must take the advantage of favorable winds and weather;
and it is well known that sailors (for peculiar reasons of their own) give a preference
to that day of the week over all others for commencing a voyage. In
the case of Ulary v. the Washington, (Crabbe, 208,) where a sailor justified
his departure from a ship in port, because he was compelled to work on Sunday,
Judge Hopkinson decided, 'that, by the maritime law, sailors could not refuse
to work on Sunday--the nature of the service requires that they should do so.' We
have thus disposed of the questions of law raised in this case, and concur with
the District and Circuit Court in their decision of them. Some
objections have been urged to the assessment of damages, and their amount. On
this subject there was much contradictory testimony, as usually happens when experts
are examined as to matters of professional opinion. The judges of the courts where
this question was tried can better judge of the relative value of such conflicting
testimony, from their knowledge of places and persons, and they may examine witnesses
ore tenus, if they see fit. *220
There was evidence to support the decree; and we can see no manifest error into
which the court below has fallen. Appellants ought not to expect that this court
will reverse a decree, merely upon a doubt created by conflicting testimony. The
judgment of the Circuit Court is affirmed, with costs. Copr.
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