boat out to the point where it was struck by the large wave; that he should have observed the conditions before the boat came in contact with the first wave, and was negligent in handling his boat to avoid the impact of the second wave.
Was the respondent negligent in any of these particulars which made his boat or himself personally responsible for damages sustained by libellant?
Discussion and conclusions of law.
A number of cases have been called to the attention of the Court in the brief of counsel for libellant, and it seems desirable that the facts by which the principle established in those cases and others which the Court has found should be compared with the facts in the instant case.
In Texas & Gulf S.S. Co. v. Parker, 5 Cir., 263 F. 864, in which there was a decree for the injured party in a case involving limitation of liability, the negligence is quite clear. The master of a small freight steamship, with knowledge that a dangerous hurricane was making up in the Gulf and that it would probably cross his path, left Galveston for Corpus Christi. The steamer foundered in the hurricane, and negligent conduct of the master was sustained based upon the starting of the voyage in the face of hurricane predictions.
The Linseed King cases are referred to in libellant's brief, and considerable reliance is placed on the doctrine stated in those cases. The first decision is found in D.C., 24 F.2d 967. It was a proceeding instituted in admiralty under the limitation of liability act and involved necessarily the question of negligence. The negligence complained of was the operation of a small boat across the Hudson River from New York to Edgewater, New Jersey, carrying employees of the owner of the boat to and from work in New Jersey. On the fateful trip the boat was carrying about 78 passengers, struck an ice floe which stove a hole in the forward part of the boat, and an unknown number of the passengers were drowned. It appeared that the boat was not constructed so as to withstand the blow of ice, and orders had been given to the operator not to run the boat when ice was in the river. Several questions were considered in the case, but only the negligence conclusions apply in the instant case.
Judge Hazel in his opinion as to negligent operation, after reciting some of the testimony indicating that there had been considerable ice floating in the Hudson River at a place of crossing for several days before the collision, said: "In the light of such testimony, it is indeed to be wondered why Stover, Rohweder, and Balz did not foresee that it was perilous to continue the trips. Rohweder was negligent, in my opinion, in taking passengers on board, knowing that he would have to pass through ice before reaching the clear, and that doing so was fraught with danger. Stover and Balz knew, or should have known, of the ice fluctuations in the river, due to wind, current, and tides. And the fact that the launch was not regarded by her owner as seaworthy to withstand ice conditions may be assumed from the instructions that had been given to cease her trips on its appearance. The probability of ice appearing, in view of the temperature, should have prompted direct instructions to abandon the trips." 24 F.2d 967, 971, 972.
Apparently an interlocutory decree was ordered in the above case and all matters referred to a commissioner to ascertain the damages of injured parties.
It next appears in the reports in D.C., 48 F.2d 311 on exceptions filed to the master's report relating to the applicability of the Workmen's Compensation law and the right of certain petitioners to recover damages and the amount thereof. The question of negligence as decided by Judge Hazel in the original hearing was not disturbed, but in the later case it was determined that certain of the persons on the boat came under the provisions of the Workmen's Compensation law, and the court dismissed their cases from the admiralty proceedings, and some changes were made in the amounts allowed by the commissioner to sundry claimants.
From these decisions an appeal was taken to the Circuit Court of Appeals for the Second Circuit and the opinion of Judge Learned Hand is reported in 52 F.2d 129. In that court the result was an affirmance. It appears that the company officials had recognized that the launch was not fit to encounter ice and had directed the officers at Edgewater to discontinue her service as soon as ice appeared in the river, and further that the boat should not be exposed to floes or heavy cakes.
The court said on page 132 of 52 F.2d: "It was a fault to allow her to go out, when there was reasonable expectation that such ice might be met."
Further, as to the negligence, the court said: "If employers are justified in undertaking such transportation at all, they must use the greatest of possible care; changes must be ruled out, though remote.We do not say that they can be so justified, but when such a craft, so crowded, is used at a season when ice is likely to be in the river, and has already been seen within forty-eight hours, nothing but the extremest precautions could exculpate any one concerned in the venture, if even these will serve." 52 F.2d 129, 132.
There was no question, as the court viewed the facts in that case, that the master of the boat was negligent because he had received strict instructions not to use her when ice was in the river. The main question there involved was the liability of the owner, the question of limitation, and the applicability of the Workmen's Compensation law.
The Supreme Court granted certiorari and in its conclusions affirmed the negligent finding, held the owner responsible notwithstanding the orders issued, but reversed the Circuit Court as to the applicability of the Compensation law and held that all of the claims were solely cognizable in the admiralty court. The case is reported in 285 U.S. 502, 52 S. Ct. 450, 76 L. Ed. 903. After reciting the facts quite completely, the opinion deals with negligence in the following words:
"The first question for decision is whether Kellogg & Sons, as owner, was entitled to a decree limiting its liability. The master's negligence is not denied; indeed the owner proved that definite and peremptory instructions had been given him never to run when there was ice in the river. His disregard of these was the proximate cause of the disaster." 285 U.S. 502, 509, 52 S. Ct. 450, 452.
The next case is that of Calanchini v. Bliss, 9 Cir., 88 F.2d 82.The negligence charged in that case and sustained by the court as actionable upon which the libellant recovered was that respondent operating a boat having a rated capacity of ten passengers capsized in the open sea when it has eighteen passengers aboard. The court held that the capsizing was not an act of God but due to overloading the boat.
In the case of Petition of Liebler (The Francesca), D.C., 19 F.Supp. 829, a girl swimmer with her boy companion were taken aboard a speed boat and permitted to sit on top of the cabin in front of the wind shield. It was claimed and apparently adopted by the court as a fact that a sudden change of direction of the boat at high speed threw the girl into the water and she was cut by the propeller causing her death. It was held to be negligence to take the girl aboard and not provide for her a safe place on the boat.
None of these cases, so far as facts are concerned, is on a parallel with the facts in the instant case. The captain was competent, his boat was apparently sound and well motored, and was not overloaded.
The accident was caused, in my opinion, by an unusual wave which, under the testimony, could not possibly have been anticipated. I do not know, nor does any one else, what might have happened if some other course had been taken. However that may be, I cannot conclude that there was any actionable negligence which would justify the Court in assessing damages against the respondent. The libellant was severely injured, and it is unfortunate that he cannot be reimbursed, but you cannot take money from one and give it to another without legal justification.
Having decided as a matter of fact that there was no actionable negligence, it necessarily follows as a matter of law that there can be no recovery.
The prayer of the libel is denied and the libel will be dismissed.
Decree should be presented to the Court.
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