Leathers v. Blessing, 105 U.S. 626

Leat hers v . Bles sin g .

1. The term “ torts,” when used in reference to admiralty jurisdiction, embraces not only wrongs committed by direct force, but such as are suffered in consequence of negligence or malfeasance, where the remedy at common law is by an action on the case. 2. The jurisdiction in admiralty is not ousted by the fact that, when the wrong

was done on the vessel by the negligence of her master, she had completed her voyage and was securely moored at the wharf where her cargo was about to be discharged.

App eal from the Circuit Court of the United States for the District of Louisiana.

The case is stated in the opinion of the court.

Mr. John G. Carlisle for the appellants.

Mr. Charles W. Hornor for the appellee.

Mr . Justi ce Blatchfor d delivered the opinion of the court.

This is an appeal by the respondents in a suit in admiralty in personam from the decree therein. Leathers was the master of the steamboat “ Natchez,” and he and the other respondent were the owners of that vessel. The suit was brought in the District Court to recover damages for personal injuries received by Blessing, the libellant, on board of that vessel, and he had a decree in that court against the respondents in personam, and as owners of the vessel, and in solido, for $5,758.50, with five per cent interest from judicial demand till paid, and costs of suit. The respondents appealed to the Circuit Court. That court found the following facts: “1. That on the twenty-sixth day of December, A. D. 1873, the defendant therein, Thomas P. Leathers, was the master, and he and Mary Meeha, wife of Anthony Pauly, were the owners of the steamboat ‘ Natchez. 2. That about 1 o’clock P. M. of said day the said steamboat * Natchez ’ was lying at the wharf on the Mississippi, near the foot of Canal Street, in the city of New Orleans, securely moored to said wharf, and with at least one of her gangplanks out and resting on the shore, which afforded ingress and egress between the lower deck of said steamboat and the wharf.

3. That on the day and at the hour above mentioned the said steamboat had recently arrived at the port of New Orleans from a trip up the Mississippi River, having on board a large number of bales of cotton, and that the trip of said steamboat was completed, but her cargo was still to be discharged. 4. That a part of said cargo of cotton was stowed on the forward deck several tiers high, and a passageway was left from the end of the gang-plank to the foot of the stairs. This passageway was covered with bales of cotton piled on the bridging, and persons on shore who desired to go to the cabin or office of the steamboat could only do so by going along this passageway to the stairs, and up the stairs to the cabin and office. 5. That, after the landing of said boat, and after her gang-plank had been run ashore, so that persons could go from shore to said steamboat, the libellant went aboard of said steamboat, along said gang-plank, with the purpose of going up into her cabin or to her office. 6. That the master and officers of said steamboat were, accustomed to permit persons expecting to find on said steamboat freight consigned to them, as soon as she had landed, and her gang-plank was out, to go aboard of her to examine the manifest or transact any other business with her master or officers. 7. That the libellant had business on said steamboat when he went aboard of her as aforesaid, he was expecting a consignment of cotton-seed by said steamboat, and went aboard to ascertain whether it had arrived. 8. That, when libellant was going through said passageway, and when near the foot of the stairs, on his way to the cabin or office of said steamboat, a bale of cotton fell from the upper part of said passageway against and upon the leg and ankle of libellant, causing a compound fracture of the bones of his ankle and leg. 9. That said bale of cotton was carelessly and negligently stowed, and was left in such a position that it was liable to fall upon persons going along said passageway to the foot of the stairs of said steamboat, and its position was known to the master of said steamboat. 10. That libellant was in no manner negligent or in fault, whereby he contributed to his said injury. 11. That the fracture of libellant’s leg and ankle was such as to render amputation of his leg necessary, and his leg had to be and was amputated in consequence of the injury sustained by him

as aforesaid. 12. That, at the time of his injury aforesaid, the libellant was thirty-eight years of age, and was earning in his business, which was buying cotton-seed, as agent for the Louisiana Oil Company, the sum of $750 per year. 13. That, at the time of said injury, the libellant was in good health, with a good character for sobriety and integrity. 14. That, in consequence of the injury sustained by him as aforesaid, the costs and expenses incurred by libellant for treatment, surgical services, and in and about his care and cure, amounted to the sum of seventeen hundred and seven dollars and fifty cents. 15. That the other damage resulting to libellant from said injury, consequent upon loss of time and the permanent disability caused by the loss of his leg, amounted to the sum of four thousand dollars.” As a conclusion of law from the foregoing facts, the court found that the libellant ought to recover from the respondents the aggregate amount of said costs, expenses, and damage, with interest thereon, as additional damage, from the date of judicial demand, and it gave a decree in favor of libellant against the respondents for the said sum of $5,707.50, with interest at the rate of five per cent per annum from the date of judicial demand till paid, and costs of suit. From that decree this appeal was taken by the respondents.

Although a suit might have been brought in a common-law court for the cause of action sued on here, the District Court, sitting in admiralty, had jurisdiction of this suit. The vessel was water-borne in the Mississippi River at the time, laden with an undischarged cargo, having just arrived with it from a voyage. The findings sufficiently show that her cargo was to be discharged at the place1 where she was moored. Therefore, although the transit of the vessel was completed, she was still a vessel occupied in the business of navigation at the time. The facts, that she was securely moored to the wharf, and had communication with the shore by a gang-plank, did not make her a part of the land or deprive her of the character of a water-borne vessel.

The decree of the Circuit Court will be affirmed, with costs and interest on the principal sum of $5,707.50 decreed by the Circuit Court, to be computed at the rate of five per cent per annum from the date of judicial demand in the District Court, till paid; and it is

The “Poto mac .”

1. Upon a libel in admiralty for a collision, the libellant may be allowed damages for the loss of the use of his vessel while laid up to repair the injuries thereby suffered; and if at the time of the collision she was in no need of repair, and was engaged in and peculiarly fitted for a particular business, and her charter value cannot be otherwise satisfactorily ascertained, the average of the net profits of her trips for the season may be adopted as the measure of the allowance. 2. A vessel being insured on two-thirds of her valuation by valued policies, by

which, in case the insurers should pay any loss, the assured agreed to assign to them all right to recover satisfaction from any other person, or to prosecute therefor at the charge and for account of the insurers, if requested, and that they should be entitled to such proportion of the damages recovered as the amount insured bore to the valuation in the policies, the assured filed a libel in admiralty against another vessel for damages suffered by a collision.. The insurers paid the libellant two-thirds of that damage, and

released and assigned to the owners of the libelled vessel all their right in any damages growing out of the collision. It appearing that the collision was owing to the fault of both vessels, the libellant could recover only half of the damages sued for. Held, that one-third of the sum paid by the insurers must be deducted from the amount to be recovered.

Appeal from the Circuit Court of the United States for the District of Louisiana.

The case is stated in the opinion of the court.

Mr. Timothy D. Lincoln for the appellant.

Mb . Jus tic e Gray delivered the opinion of the court.

This is a libel in admiralty for collision, filed by the owner of the steamboat “ Robert E. Lee ” against the steamboat “ Potomac.” In the District Court, and in the Circuit Court on appeal, both vessels were found to have been in fault, and therefore, according to the settled rule in admiralty, affirmed and established by this court in The Catherine (17 How. 170), the amount of the damages to each vessel, being $19,411.27 to the “ Robert E. Lee,” and $7,330.52 to the “ Potomac,” was equally divided between the two. The Circuit Court having found and stated the facts, and stated its conclusions of law, its finding of the facts is conclusive, and the questions of law so stated upon the record are open for revision in this court upon appeal, without any bill of exceptions. Stat. Feb. 16, 1875, c. 77, 18 Stat. 315; The S. C. Tryon, ante, 267; The Francis Wright, ante, 381.

Both the questions of law presented by the record relate to the amount of the damages that the libellant is entitled to recover.

One question is as to the sum to be allowed for the detention of his vessel while repairing the injuries suffered by the collision. The rules of law governing this question are well settled, and the only difficulty is in applying them to the peculiar facts of the case.

The only other question argued at the bar is whether certain sums paid to the libellant by underwriters on his vessel should be deducted from the damages which he is entitled to recover in this suit. The determination of this question depends upon the effect of the following facts: —

At the time of the collision, the “ Robert E. Lee ” was insured in various sums, amounting to $50,000 in all, against perils of the sea, river, and fire, by concurrent policies in different insurance companies, each of which valued her at $75,000,. and contained this provision: “ Whenever this company shall pay any loss, the assured agrees to assign over to said company all right to recover satisfaction therefor from any other person or persons, town or other corporation, or the United States government, or to prosecute therefor at the charge and for account of the company, if requested. And the said company shall be entitled to such proportion of said damages recovered as the amount insured by them bears to the valuation of said vessel.”

The insurance companies paid to the libellant in the aggregate, for the loss sustained by his vessel by the collision, the sum of $7,429.52, which was arrived at by7 assuming the damage to her at $14,347.34, including about $2,000 for wages and expenses during her detention, instead of profits lost, then deducting one-third of the repairs, new for old, amounting to $3,203.06, and charging the assured with one-third of the balance, as his portion of the risk assumed, not covered by the insurance.

The claimants, under apt allegations in their answer and cross-libel, contended that the amount so paid by the insurance companies should be deducted from the libellant’s damages, before bringing them into account with him. The District Court so held, and deducted the whole of that amount from the moiety of the damages to the “ Robert E. Lee ” which the libellant was entitled to recover against the “ Potomac.” The Circuit Court, on the other hand, held that no part of that amount should be deducted. This court is of opinion that neither of these decisions was correct.

The mere payment of a loss by the insurer does not indeed afford any defence, in whole or in part, to a person, whose fault has been the cause of the loss, in a suit brought against the latter by the assured. But upon familiar principles, often recognized by this court, the insurer acquires by such payment a corresponding right in any damages to be recovered by the assured against the wrong-doer, or other party responsible for the loss, and may enforce this right by action at common law in the name of the assured, or, when the case admits of proceeding in equity or admiralty, by suit in his own name. Hall $ Long v. Railroad Companies, 13 Wall. 367 ; Comegys n . Passe, 1 Pet. 193 ; Fretz v. Bull, 12 How. 466; The Monticello, 17 id. 152 ; Garrison v. Memphis Insurance Co., 19 id. 312. See also The Sarah Ann, 2 Sumn. 206; The Ann C. Pratt, 1 Curt. C. C. 340 ; Clark v. Wilson, 103 Mass. 219; Yates v. Whyte, 5 Scott, 640; s. c. 4 Bing. N. C. 272; 1 Arnold, 85 ; Simpson v. Thomson, 3 App. Cas. 279.

By the express terms of each of the policies upon the “Robert E. Lee,” the insurers, upon payment of a loss, were entitled to demand from the assured an assignment of his right to recover damages against the “ Potomac ” for the loss so paid for, or to bring suit for puch damages in his name, and to hold to their own use such proportion of those damages as the amount insured bore to the valuation of the “ Robert E. Lee ” in the policy. And that valuation is conclusive in respect of all rights and obligations arising upon the policy of insurance. North of England Insurance Association v. Armstrong, Law Rep. 5 Q. B. 244.

The amount which, by the effect of the contract of insurance, and of the payment of a loss under it, the insurers had the right to recover to their own use from the “ Potomac ” and her owners, they had the right to release and assign, if they saw fit, to those owners. The claim of the latter to a deduction on this account from the damages to be recovered against them does not arise out of any right of their own, but out of the right so derived from the insurers. The Circuit Court therefore erred in holding that no part of this amount should ,be deducted from the libellant’s damages.

But the insurers are entitled only to damages to be recovered for an injury for which they have paid, and to such proportion only of those damages as the amount insured bears to the valuation in the policies. As the amount insured was only two-thirds of the valuation, leaving the owner to stand his own insurer for the remaining third, and as the damages to be recovered in this ‘suit are for the injury to his whole interest, whether insured or uninsured, it is quite clear that the insurers had no right to more than two-thirds of the damages so recovered.

The necessary consequence is, that only one-half of two-thirds, or one-third, of the sum paid to the libellant by the insurers can be treated as paid on account of the damages which he can recover in this suit, and, therefore, under the claim made in the answer and at the argument, that third only can be deducted from those damages.

The result is, that the decree of the Circuit Court, awarding to the libellant the sum of $6,040.37, being one-half of the excess of the damages sustained by the “ Robert E. Lee ” over the damages sustained by the “ Potomac,” must be reversed, in so far as to deduct from that sum the sum of $2,476.51, being one-third of the sum paid to him by the insurance companies, and must in other respects be affirmed; and it is