THE ARKANSAS.
,383
after hearing the gun; anel we have his own word for the fact that at the time when, upon hearing the gun, he abandoned his easterly course for the course 4:3 deg. K, he knew that the North Stack was abaft his beam on the starboard quarter, as in fact it was. Upon the master's showing, therefore, it is impossible to conclude otherwise than that he conspicnouslyfailed to use reasonable care and skill in navigating his vessel upon hearing the North Stack gun, and that the loss in question was the immediate result of his negligence in that particular. The only suggestion made in regard to this aspect of the case is that the master, when he heard the sound of the North Stack gun, could not have been sure of its bearing. But the difficulty with this suggestion is that the master repeatedly swears that when he heard the gun he knew that it was the North Stack gun, and that he diel conclude that the gun was abaft his beam, as in fact it was. Upon the facts as they were, it was great negligence to take and hold a course N. 42 deg. E. after the North Stack gun was heard, and the master swears that he understood the facts to be as in truth they were. How is it possible, then, to absolve him from the charge of having run his ship ashore by failing to exercise reasonable care and skill in her navigation? It is to be remarked in this connection that the fact that the master, when he changed from E. 1- S. to N. 42 deg. E., knew that he was in Holyhead bay, and east of theN'orth Stack, is fixed beyond dispute by the'statement in the defendant's answer, whero.it is said: "After running on such east course five minutes, a gun was heard on the starboard quarter." My conclusion, therefore, is that the proofs show that the loss of the goods in question was caused, not by a mere error of judgment on the part of the master of the steamer Uontana, but by a failure to exercise reasonable care and skill in the navigation of his ship. The liability of the defendants follow's, of course. Let decrees be entered in of the libelants, with an order of reference to ascertain the amount of the loss.
(District Court,8. D.lowa.
1883.).
, 1. JURISDICTION IN AND ON LA....W.
,
OF VESSEL WITH STRUCTURES IN TIlvEn
There Is a clear distinction between torts arising from the collision of boats with structures placed in tile navigable bed of a river, and torts resulting. from collisions of boats and vessels with structures on land, whether immedIately along the sllore or not. Torts of the former class are "'ithin the admiralty jurisdiction, and torts of the latter dass are of common-law cognizance: and whether the structures are solid or floating, realty or penmnalty, firmlJfixed to the bell of the river or otllcrlyisc, does not afIect such jurislliction.
384 2. SAME-PROCEEDING IN
FEDERAL REPORTER. OnsTRucTION.
Where a vessel is injured hy a collision with a structure unlawfully placed in the navigahle bed of a river, the party creating the obstruction may be sued for the injury in an action in personmn in a proper court of admiralty; but the owners of the vessel cannot in such a case proceed in rem against the solid structure, whatever it may he, hecause there can he no maritime lien upon such a structure to be enforccd in the admiralty by its seizure and sale. SAME-LAWFUL EHECTION OF STRUCTUHE.
3.
here a structure iawfu'ly create(l in the navigable bed of a river is injured by a collision caused by the negligent. management of a vessel, t.he owner of such structure may proceLd in an admiralty COUI t by action in personam against the owners of t.he vessel, or in rem against the vessel itself. SAME-UmDlON LAW-LIEN ON MOVABLES.
,V
4.
The admiralty jurisdiction owes its existence chiefly to the fact that the common-law tribunals, by reason of their modes of procedure and their doctrine that possession is indispensahle to a lien upon movables. are wholly inadequate to give relief against ships and vessels afloat upon the high seas and navigable waters of the earth. SAME-FLOOD-COLLISION OF VESSEL WITn BUIl,DING ON LAND.
5.
The jurisdiction of the admiralty over marine torts depends upon locality,the high seas or other navigable waters within admiralty cognizance; and, llCing so dependent upon locality, the jurisdiction is limited to the sea, or navigable waters not extending heyond high-water mark; and where a budding erected on land near a navigable river is injured by collision, caused by the negligent management of a vessel which has l)een floated against it by reason of a flood raising the waters of said river above the banks thereof, and carrying said vessel beyond s'lid this does not constitute a tort within the jurisdiction of a court of admiralty.
In This is a proceeding in rem. The defendant steamer was libeled for an alleged marine tort, to the damage of the plaintiff's property. The libelants allege that they are the owners of a depot for the reception and storage of oil upon the levee of the city of Keokuk, near the Mississippi river; that on or about the twenty-fourth day of April, 1882, by reason of an unusual and extraordinary flood of said river, the water extended up to and around the libelant's said property; that, in consequence of the careless, negligent, and unskillful manner in which said steamer was managed and navigated, she was floated and propelled upon and against the libelant's said property, whereby a tank containing a large qnantity of oil was crushed and broken, and the oil destroyed, etc., to the damage of the libelant in the sum of $600, etc. To this libel the intervening claimants except, upon the ground that the tort complained of, as stated in the libel, is not of admiralty jurisdiction. Anderson Bros. 0: Davis, for libelant.. Hagerman, n[cCrary (C, Hagerman, for claimant. LOVE, J. Locality is the test of admiralty jurisdiction over marine torts. When, before the decision in "'Pile Genesee Chief, 12 How. 443, it was settled that there was no jurisdiction in admiralty above tide-water, it was also settled that a marine tort committed above tide-water was not within the cognizance of the admiralty. \"'lhen, in that case, the supreme court decided that navigability, and ot the flux of the tides, is the true test of this jurisdiction., the Amer.
'rUE ARKANSAS.
885
icancourts of admiralty took cognizance of maritime contracts and torts upon our navigable rivers above as well as below tide-water; and, locality being the test of jurisdiction over marine torts, the only question in the present case is whether the trespass was committed upon land or upon navigable water. The exceptions to the present libel raise this important question: What is the true limit of admiralty jurisdiction in questions of tort upon our great navigable rivers? Locality being the test of admiralty jurisdiction in such cases, have we any test as to locality itself upon those great rivers which, flowing ordinarily in well-defined channels, not unfrequently rise high above their banks, and cover with their floods extensive regions of country, from bluff to hluff, with a depth of water sufficient to float vessels of considerable size and burden? This precise question could not have arisen prior to the case of The Genesee Chief. When the test of admiralty jurisdiction was the flux and l'eflux of the tides, the flow of the tide then marked the utmost limit of admiralty jurisdiction, and it ordinarily defined a sufficiently certain boundary. Wherever the tides prevailed there was navigation and maritime commerce, and, by consequence, admiralty jurisdiction. Hence, when a marine tort was committed, there could have been little difficulty in determining by its locality whether it was within the admiralty jurisdiction or not. But the test of admiralty jurisdiction now, being, not the tide flood but navigability, and such rivers as the Missouri and Mississippi being subject to extraordinary and capricious fluctuations, it often becomes a difficult question to determine whether or not a tort committed upon their waters is within the admiralty jurisdiction. I understand libelant's counsel in this case to contend that it is a question of actual navigation in each case, and that the jurisdiction of the admiralty is co-extensive "'ith the navigation of the vessel. A marine tort, therefore, may be committed within the jurisdiction at any place where the vessel floats upon the waters of a navigable river, whether within its ordinary banks or elsewhere. I am not myself prepared to accept this doctrine. Suppose a vessel floflting far from the ordinary banks of the river, over widely-extended bottom lands, should, by the negligence of the na,igator, strike and injure some man's fences, houses, or varns; could the tort be brought within the cognizance of the admiralty? Again, suppose some individual should negligently, or without authority or warrant of law, place an obstruction or erection of any kind, not in the navigable channel of the river, but upon some wide bottom land, and a vessel floating over the same during an overflow should run upon the obstruction and receive injury; could the owners of the vessel sue the party creating the obstruction in pcnonam in a court of admiralty? It seems to me that to these questions a negative answer must be given. Yet it is very certain that a case of tort arising from the collision of a vessel with v.17,no.4-25
, FEDERAL'· REPORTEr..
it structure ofthe'"same' kind; placed
the bed of the river and in navigable water, would be within the ad" miralty jurisdiction. 'Atlee v. Packet Co. 21 Wall. 389; Railroad 209. Co. v. Steam-tow Co. 23, What, then, it may be asked, is the criterion of jurisdiction as to place or locality upon' these great, ever-changing navigable rivers? When is the locality or place where a tort is committed within admiralty cognizance and when not? I do not myself feel called upon to answer this general question. Though highly desirable, it would no doubt be extremely difficult to lay down any general rule or criterion by which the jurisdiction could be tested in all cases. For the decision of the present case suffice it to say that there is a clear distinction running through the cases between torts arising from the collision of boats with structures placed in the navigable bed of the river, and torts resulting from collision of boats and vessels with structures on land, whether immediately along the shore or not. Torts of the former class are within the admiralty jurisdiction; torts of the lattel' class are of common-law cognizance. The solution of the question of jurisdiction does not depend, in my judgment, upon the fact of the structure being solid or floating, realty or personalty, firmly affixed to the bed of the river or otherwise. It isa question of place, and of the rightfulness of the structure. Is the structure in the navigable bed of the river, and is it there by lawful authority or not'! If the structure is placed in the navigable bed of therivel' without right .. fullicense or authority, and a vessel is injured by it, the party creat-' ing the obstruction may be sued for the injnry in an action in personam in a proper court of admiralty. This is manifest from the' cases 'of Atlee v. Packet Co. and Railroad Co. v. Steam-tow Co., cited above. The owners of the boat cannot, of co'urse, in such case proceed in' rem against the solid structure, whatever it may be,-whether a bridge, a pier, boom, or signal-post,-because there can be no maritime lien upon such a structure to be enforced in the admiralty by it-s seizure and sale. Such is the doctrine in the case of The Rock Island Bridge, 6 Wall. 213. But suppose, on the other hand, the structure. whether bridge,. boom, pier, or light-house, be a lawful one; suppose it to be placed in the navigable bed of the river by lawful authority; and suppose some reckless mariner should carelessly run his vessel uponit and injure it; can it be doubted that the tort thus committed would be within the admiralty jurisdiction? Can it be doubted that in such case the owner of the structure might proceed against the owners of the boat in IJersonam, or againElt the boat itself in rem.! The tort itself would 'be a: marine tort ;it would be, as to place, within the admiralty jurisdiction. Theowm:r ofthe stnictuie wourdhave a: right to proceed in rem against' thebaat, because, from its nature, a rharitime Iiencould;ahachfcdhe' boat. The owner of the structure would, in this ,,{ certain
iti
.,
387
:;advantageover the_,owner of the boat, since.tlJ8 latter. if injured, would be restricted to the reme:ly in personam. An'd this is as it should ::be;sinceJhe boat is it mpving, transitory thing, and if no maritime i liehattached to it, and no remedy existed in admiralty to enforce the .lien, the boat might take its departure into distant states or foreign jurisdictions, leaving the owner of the structure without any effectual . remedy. ,:ndeed, the admiralty jurisdiction owes its existence chiefly 'to the fact that the common-law tribunals, by reas)n of their modes ,of procedure, and their doctrine. that possession is indispensable to a .lien upon movables, are wholly inadequate to give relief against ships .and vessels afloat upon seas and other, navigable waters of ·the earth. , There is, therefore, good reason why the maritime lien and the ad· miralty jurisdiction should obtain in faYorof the owner of a lawful ,structure, injured by the negligent navigation of a colliding vessel. ,The common law could give him no adequate relief. ' But this reason ,does. not apply reciprocally in fav,r of the owner of the vessel as against the solid structure, which cannot move off and leave the owner of the vessel without remedy. Hence, there is no necessity .for establishing a lien upon such a structure, or enfOl..:ing the plaintiff's claim by a proceeding in rem. And since it is settled beyond question, by The Atlee and Tow-boat Cases, that the owners of the boat would have a right to proceed in personam, in admiralty, against the owners of the structure, why should the reciprocal right of the owners _of the structure to a remedy in admiralty against the boat be denied? So much respecting the jurisdiction of the admiralty over torts aris:' from the collision of vessels with structures erected within the ,navigable waters of a river. " , Let us now consider the question of jurisdiction with resr'lct to the collision of boats and vessels with structures upon land, whether 'along the banks and shores of the river, or in towns and cities situated upon'it. Does the admiralty juriSdiction extend to such torts? ,'I am quite clear, that it does not. The reason is obvious. Such 'torts are not marine. They are committed upon land; not upon or within the navigable waters of the river. The'test of admiralty jurisrliction o':er torts is locality, and locality is against the admi· .ralty jurisdiction where the tort is committed upon land. I know of no' case in all the booki:l, and the industry of counsel seems to bav,e Jound 11one; in which it has been held that the court of admiralty has jurisdiction of any tort committed or consummated upon land. There is, of couJ;se, ,a remedy for such torts, but the remedy is in the coni'nion-Iaw' courts., There must have been in this country collisione of vessels with such structures !lpolllUnd as wharves, ,qua}'!?, piers, business houses, light-houses, npon the shore, etc. : 'Why, then, has no case been proc1ilced in which the admiralty has : +akenjurisdietion of illjuries resulting' from sueh collisions?' cali:not- ac'count for this except by the assumption that such cases have
:r
·. ,
·
':"'.".
··
::"
"
·. ";
<"
388
FEDERAL REPORTER.
been, by common consent, regarded as not within the jurisdiction of the admiralty. Several cases have been decided in the district courts of the United States holding taat the jurisdiction in admiralty does not extend to injuries caused by boats and vessels to wharves, piers, and bridges. Thus, in The Neil Cochran, 'I.. Brown, Adm. 162, the court held that "an action will not lie in admiralty against a vessel to recover for damages done to. her by a btidp;e thrown over a navigable stream." In The Ottau'a, Id. 356, the court decided that "an action will not lie in admiralty against a vessel to recover damage done by her to a wharf projecting into a navigable river." See, also, The frIary Stewart, 10 FED. REP. 137. And the supreme court of Michigan, in The City of E1"ie v. Canfield, 27 Mich. 479, in an opinion by Judge COOLEY, held that "a boom being a structure pertaining to the adjacent land as much as a wharf or building thereon, assuming that it extends no further out than the land-owner might properly, with due regard to navigation, extend it, a wrongful injury to it would not be a maritime injury, and could not be redressed in a comt of admiralty." It seems to me that the doctrine announced by the supreme court of the United States in the case of The Plymouth, 3 Wall. 20, is conclusive of the present question. It is true that this case is not exactly analogous to that of the Plymouth in its circumstances, but we must be guided by the principle upon which that case was decided. In that case, the vessel lying at a wharf in the Chicago river, which was subject to admiralty jurisdiction, took fire, which spreading to certain store-houses on tlle wharf, consumed them and their stores. It was heid not to be a case of admiralty jurisdiction. What was the leading principle of the decision? "It is well observed," says the court, "that the entire damage complained of by the libelants as proceeding from the negligence of the master and crew, and for which the owners of the are sought to be charged, occurred, not on the water, but on the land. The origin of the wrong was on the water, but the substance and consummation of the injury on land." "It is admitted by all the authorities that the jurisdiction of the admiralty over marine torts depends upon locality,-the high seas, or the other navigable waters within admiralty cognizance; and, being so dependent upon locality, the jurisdiction is limited to the sea or navigable waters not extending beyond high-water mark." Again, the court says the simple fact that the injury originated on the Chicago river, the whole damage having been done upon land, the cause of action, not being therefore complete on the navigable river, could afford no ground for the exercise of admiralty jurisdiction. From the doctrine thus laid down by the supreme court of the United States in The Plymouth, it is apparent that the true question in the case now before us is whether the trespass or tort complained of was committed on land or on navigable water. If it was a trespass upon land, it is not within the admiralty jurisdiction.
889
It seems by the allegations of the libel that the oil depot where the injury occurred was not on, but near the river, upon the levee of the city of Keokuk; that in an extraordinary and unusual freshet or flood the water rose up to and flowed round the depot; and that, in conse· quence of unskillful and negligent navigation, the defendant steam· boat was propelled and floated with violence against the libelant's property, doing the injnry complained of. The plaintiff's property was unquestionably situated upon land, and not upon the water or within the river. It would be doing violence to language to say that the oil depot in question was not upon land. Can we, then, say that because the river, in an extraordinary and unusual flood. rose up to and around the oil depot, and ftoated the steamer upon the plaintiff's property, the tort complained of WitS not upon land? Can we say that an injury to property siLuated undeniably upon land, was, under the cumstances, a tort upon water? If so, all cases of collision by steamboats and other wa1er-craft with wharfs, bridges, quays, depot buildings, business houbes, piers, light.houses, etc., are torts committed upon water and not upon land, and therefore within the admiralty jurisdiction; for it is evident that in every such case the water must be sufficient to reach the structure exposed to the collision, and carry the boat or vessel against it. Nay, more: it would follow from the libelant's position that if the boat or vessel should be lifted by a flood over the banks of our great rivers, and carried for many miles over their vast bottoms, to some man's farm, burning his hay-stacks, or destroying his stables, barns, and their contents, the injury thus inflicted would be upon water and not upon land, and the remedy would be in admiralty. Thus the citizen would be deprived of bis action at common law and his right of trial by jury, and compelled to accept such redress as a court of admiralty could give him in common with other claimants. It was settled by the supreme court of the United States in The :Moses Taylor, 4 Wall. 411, and The Adam Hille, Id. 555, that the admiralty jurisdiction of the federal courts is exclusive, and therefore, when we consider the vast extent of lands sometimes flooded by these rivers with a navigable depth of water, we are somewhat startled at the idea that the common-law jurisdiction over torts may be temporarily excluded. And it would appear somewhat anoma· lous to us that the admiralty juriSdiction should come and go with the rise and subsidence of the river, to be succeeded in its turn by that of the common law, subject to the same accidents. It seems to me, therefore, that the tort complained of in this case was not upon navigable water, but, in a true and proper sense, upon land. The water was a means or agent by which the boat was floated upon a land structure, but the injury was essentially to an erection upon land, and therefore it may be properly said that the tort was committed, or at least consummated, upon land. Exceptions sustained.
:390
.
{
';raE CITY OF ALEUNDRIA. '
(District Co'v:rt, S.D.. New York. "1.
July 3,1883.)
ADMIRALTY"':"'SEAMEN-PERSONAL INJURJES-1\IARITrME LAW.
The naVigation of a ship constitutes one common employment, for which all the ship's company are employed. Neither the vessel nor her owners, therefore, would be liable, according to the principles of the municipal law, for injuries happening to a seaman through the negligence of any of his associates . in the performance of their ordinary duties. SAME-SnIP LIABLE FOR EXPENSE OF NURSING AND l'tiEDICALATTENDANCE.
8.
By the maritime law, ancient and modern, a seaman, in case of any accident received in the service of the ship, is entitled to medical care, nursing, and attendance, and to cure, so far as cure is possible, at the expense of the ship, and to wages to the end of the voyage, and no more. This right of the seaman is without reference to any question of ordinary negligence of himself or his associates, and is neither incrcased nor diminished by the one or the other; .
t
SAllE-EFFECT OF NEGLIGENCE.
6.
SAME-GROSS i\IISCONDUCT.
The only qualification arises from the willful and gross misconduct of himself or associates, in which case the expense may be charged against the wages of the wrong-doer. . SAME-CONSEQUENTIAL INJURIES ·
7.
.If after ,the seaman is wounded the officers of the vessel neglect to furnish pr'Jpertreatment, semble, the vessel may be held for consequential injuries. OF EXCESSIVE DAMAGES-LIBEL DISMISSED.
'Where the libelant, the cook, went down the fore hatch 'in the morning before light, by the direction 'of the steward, and was not sufficiently notified of the half-open hatch below, and inconsequence fell through and was injured, and was subsequently treated and cared for at the ship's expense, and received his wages to the epd of the voyage, and thereafter filed, this libel to recover $10,0:)0 for permanent injuries, held, that the libel'should be dismissed.
In Admiralty. James Flynn, for libelant. A. O. Salter and R. D. Benedict, for claimants. BROWN, J. The libel in this case was filed to recover $10,000 damages for personal injuries received on board the steam-ship City of Alexandria in falling through the fore hatch between-decks into the hold, on the twenty-fourth of November, 1879. The libelant was the chief cook on the steamer, on a voyage .from New York to Vera byway of Havana. One of the persons on board having died, the cqok was told, on the evening of November 23d, to go to the ice on the following morning- and superintend the packing of the ·On the 24th he was called, a little after 4 A. M.,by th"e and told that the men were waiting for him below. He .· ,by :We to go down. by., way of the fore. hatch, WhlCli was open. A permanent perpendicular ladder ran. from the