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In Admiralty.
Wilford H. Smith, for libellant.
E. Sidney Berry, for respondent.

Percy S. Dudley, for Hamburg-American Line by permission of court.

ADAMS, District Judge. This action was brought by Patrick Lancer, employed by the respondent on the 29th of October, 1906, to assist in the discharge at New York of its steamship Columbia and who received personal injuries while so engaged. There is no dispute about the fact of the injury having been received as alleged. It appears that the libellant had been at work with others in taking out a cargo of canned fish for a short time from No. 5 hatch, which was about 12 feet square. He was necessarily working in the square of the hatch in slinging up the cargo, when a draft fell back and struck him. This was caused by the draft coming into contact with a skid about 10 feet in length, which was placed between the upper and main decks to prevent the drafts from swinging beyond the square of the hatch. It was placed inside of the hatch and as the draft ascended it struck the lower edge of the skid just below the main deck and caused the draft to become loosened and fall into the hold striking the libellant a severe blow, resulting in the injury complained of. The cause of the trouble was the placing of the skid by fellow workmen inside instead of outside of the hatch, where it would have been as effective in serving its purpose of confining the uplifted load to the inside of the hatch. The accident was therefore attributable to the negligence of fellow servants. The libellant recognizes this situation but claims a right to recover under the provisions of the Act of Congress, approved June 11, 1906 (34 Stat. 232, c. 3073), known as the "Employer's Liability Act,” which provides, inter alia: "Be it enacted

that every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another, or between any territory or territories and any state or states, or the District of Columhia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employés, * * * for all damage which may result from the negligence of any of its officers, agents or employés.”

The answer amounts to a general denial and at the conclusion of the trial upon the merits, the libellant reserved the right to adduce proof to show the facts alleged in the first three paragraphs of the libel, but since the trial the parties have stipulated that these may be taken as true. The principal matter covered so far as the present discussion is concerned, is that referring to the respondent being engaged in trade and commerce between the United States and foreign countries, which relates to the constitutionality of the act above referred to. This was disputed in the pleadings but the plaintiff's allegations in that respect were subsequently stipulated to be true.

The respondent contends :

1. That the injury was the result of a simple accident, the cause of which was not explained and that therefore there could be no recov

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ery. The theory urged is that the position of the skid was not the efficient cause of the accident, which has not been shown.

I think it is quite clear that the skid being on the inside instead of the outside of the hatch was the proximate cause of the accident. If it had been placed outside of the hatch, in all probability, the draft would have gone safely to the deck.

2. That the libellant can not recover under the Federal Employer's Liability Act because he has not by his pleading or proof brought his action within the terms of the Act.

With respect to the pleading, while it is true that no specific allusion is made to the act, yet it is fully set forth that the injury was caused by negligence and that he notified the defendant that he would claim the benefit of the act. The proof is ample to show that the respondent was negligent through the libellant's fellow servants, for whose acts the respondent was made liable by the provisions of the said act. If it was a constitutional exercise of Congressional power, there can be no doubt of the libellant's right to recover.

The question of the constitutionality of the Act has been discussed in several authorities and different conclusions reached. For example, in Brooks v. Southern Pac. Co. (C. C.) 148 Fed. 986, decided by Evans, J., December 31, 1906, the act was declared invalid and the representative of a fireman who was killed through the negligence of his fellow servants in a railroad accident was held not entitled to recover. On the other hand, in the case of Spain v. St. Louis & S. F. R. Co. (C. C.) 151 Fed. 522, decided March 13, 1907, it was held by Trieber, J., that the presumption of validity will be indulged in until the contrary is shown and that Congress has power under the commerce clause of the constitution to legislate for the safety and protection of employés engaged in interstate commerce, whether the transportation be on water or on land.

Both of the opinions are well reasoned out. In the latter it is said if there ever were any doubt as to the power of Congress to enact such legislation it was removed by what was decided in Patterson v. Bark Eudora, 190 U. S. 169, 175, 23 Sup. Ct. 821, 47 L. Ed. 1002. there contended that even if the contract were under the police power, that power is vested in the state and not in the general government, but Mr. Justice Brewer said in holding the Act constitutional:

"Neither do we think there is any trespass on the rights of the states. question is before us as to the applicability of the statute to contracts of sailors for services wholly within the state."

It was

No

Judge Trieber said (page 527 of 151 Fed.) that:

"The expression of the court that contracts with sailors for their services are exceptional in their character and may be subjected to special restrictions for the purpose of securing the full and safe carrying on of commerce on the water must be understood to refer solely to the propriety of the legislation and not the power, for no one will contend now that the commerce clause of the constitution grants greater power to Congress over the commerce carried on by water than over that transported by land.”

I quite agree with Judge Trieber in his various arguments and it should be further noted that other expressions in the opinion of the Supreme Court are applicable to this case. It was said (on page 174 of 190 U. S., page 822 of 23 Sup. Ct. [47 L. Ed. 1002]):

"That there is generally speaking, a liberty of contract which is protected by the Fourteenth Amendment, may be conceded, yet such liberty does not extend to all contracts. As said in Frisbie v. United States, 157 U. S. 160, 165, 15 Sup. Ct. 586, 39 L. Ed. 657 :

'While it may be conceded that, generally speaking, among the inalienable rights of the citizen is that of liberty of contract, yet such liberty is not absolute and universal. It is within the undoubted power of government to restrain some individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase or sale of lottery tickets, to the minor the right to assume any obligations, except for the necessaries of existence; to the common carrier the power to make any contract releasing him from negligence, and, indeed, may restrain all engaged in any employment from any contract in the course of that employment which is against public policy. The possession of this power by government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property.'

I conclude that the act was constitutional and the libellant is entitled to recover. There will, therefore, be a decree for him, with an order of reference.

THE WAVERLEY.

(District Court, S. D. New York, June 26, 1907.)

1. COLLISION-STEAMSHIP AIDING GROUNDED Tow IN CHANNEL-ATTEMPT OF

ANOTHER VESSEL TO PASS.

While the steamship Ligonier and a tug were working to get the Ligonier's tow off the ground at the southern end of the canal leading from Port Arthur into Sabine Pass, the steamship Waverley, coming down the canal, attempted to pass through the narrow space between the Ligonier and the west bank, resulting in a collision. The Ligonier did not consent to such passing; but, on the contrary, both she and her tow sounded a number of blasts of their whistles intended to warn the Waverley of the danger. The Ligonier stopped her engines, but could not move further to the eastward because of the shallow water. Held, that the Waverley was solely in fault for the collision in attempting to force a dangerous pas

sage, in the absence of an agreement by the Ligonier to co-operate. 2. NAVIGABLE WATERS-OBSTRUCTION OF CHANNEL BY VESSELS—CONSTRUCTION

OF STATUTE.

Section 15 of Act March 3, 1899, c. 425, 30 Stat. 1152 [U. S. Comp. St. 1901, p. 3543), which makes it unlawful to anchor or tie up any vessel in a navigable channel in such manner as to prevent or obstruct the passage of other vessels, was not intended to prevent the aiding of a vessel grounded or in difficulty, even if it involves the temporary obstruction of a channel.

In Admiralty. Suit for collision.
Wing, Putnam & Burlingham, for libelant.
Butler, Notman & Mynderse, for claimant.

ADAMS, District Judge. This action was brought by the J. M. Guffey Petroleum Company, the owner of the steamship Ligonier, against the steamship Waverley, to recover the damages sustained through a collision between those vessels on the 28th day of January,

:

1905, about 9 o'clock a. m. at the mouth of the Port Arthur Canal. This was an artificial channel several miles long running from Port Arthur to the Sabine Pass. The tide therein was greatly affected by the wind but on this occasion it was nearly normal, with a flood current of about 112 miles

per hour. The Ligonier alleged that she left Port Arthur on the 27th of January with the loaded barge Conemaugh in tow on hawsers of about 200 fathoms, bound for sea, and had proceeded nearly through the canal and was about to emerge into the Pass, when the barge took the ground on the east side of the canal. The Ligonier, with the tug Della assisting her, kept pulling on the barge for several hours but did not succeed in moving her; that while thus engaged the steamer Waverley, outward bound, at about 9 o'clock a. m. the 28th, approached through the canal and notwithstanding warning signals given by the Ligonier and the Conemaugh continued to approach with the evident intention of forcing her way through the canal to the westward of the Conemaugh and the Ligonier; that the latter observing this persistence on the part of the Waverley, stopped her engines and eased the strain on the hawsers but when the Waverley came abreast of the after part of the Ligonier she apparently smelled the ground, keeled over and struck the Ligonier heavily on her starboard quarter, driving her over on the east bank of the canal and doing considerable damage, estimated at $8,000.

The Waverley alleged that she left the basin at 6:40 a. m. and when she had approached within about 2 miles of the junction of the canal and Sabine Pass, the Conemaugh was discovered apparently aground on the north-easterly side of the junction; that she was being assisted by the tug Della on her starboard quarter and the Ligonier which was towing ahead on 2 hawsers of about 75 or 100 fathoms in length; that the Ligonier was occupying a position nearly in the centre of the channel in the Sabine Pass to the south of the sa:d point of junction ; that while the Waverley was still at a considerable distance the Ligonier sounded a whistle of y blasts, which was answered by the Conemaugh with a similar signal and said exchange of signals was afterwards repeated between said vessels; that the said signals were, as the Waverley is informed, the private code of signals adopted by the libellant for use between their steamers and barges; that when the Waverley had approached to within about a mile, she gave a signal of one whistle to indicate that she would pass the Ligonier on the westerly side of the channel; that this signal was not answered nor were two repetitions of it given at intervals of 1 or 2 minutes; that upon approaching near enough for accurate observation, it was seen that the Ligonier had encroached upon the westerly half of the channel and that her engines were working apparently at full sreed; that the distance between the Ligonier and the westerly bank of the Pass was sufficient for the Waverley to pass, although requiring careful steering: and it was within the power of the Ligonier to enlarge this space by proceeding to the eastward of mid-channel or by stopping her engines and slacking her towing hawser; that the Waverely therefore kept on, her engines running slow and navigating with all possible care and caution; that she made the turn at the junction of the canal and Pass aforesaid and entered upon the avenue of water between the Ligonier and the westerly bank with precision; that just as the bow of the Waverley lapped the stern of the Ligonier, the latter which had negligently omitted to stop her engines or to sheer off to the eastward, carried a port wheel and kept her engines full speed ahead, thus deflecting a stream of water from her propeller to the westward and causing the bow of the Waverley to sheer against the westerly bank of the Sabine Pass; that the bow of the Waverley thereupon rebounding from the west bank, took a strong sheer to eastward and although all possible efforts were made to check her sheer by dropping her anchor and otherwise, the bluff of the port bow of the Waverley came gently in contact with the starboard side of the Ligonier.

Considerable testimony has been adduced in support of the respective contentions. After duly considering it, I have come to the conclusion that the Waverley was solely in fault for the collision. The signals which she urges were between the Ligonier and the Conemaugh, were actually designed to warn the Waverley that it would be dangerous for her to attempt to make the passage. It is true that she passed the Conemaugh without striking but by a very narrow margin, about 25 feet, and I am inclined to believe that in doing so, she took a sheer towards the western bank which she could not overcome and therefore struck it with such force as to cause her to rebound towards the east and come in contact with the Ligonier. I am satisfied that the latter did all she could to avoid the collision. She had not enough of water to the eastward to make any appreciable change in that direction, as is shown by the fact that the contact drove her at once into the bank on that side, and she did stop her engines before the Waverley was actually alongside and in time to prevent any stream of water being forced against her bow. It is possible that the Ligonier might have acted more promptly in stopping but there was evident hazard in doing so because of the flood tide and the danger of being drifted astern. I think she stopped her engines as soon as it was prudent.

The Waverley urges that the Ligonier was blocking the channel and thus violating Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 [U. S. Comp. St. 1901, p. 3543], but I do not think her actions in this case placed her in fault. The Act referred to in my judgment was not intended to prevent some necessary and perhaps unavoidable obstruction of a navigable channel in aiding a vessel in difficulties and I do not consider that the Ligonier violated its provisions here.

The evident fault of the Waverley in attempting to force her way through under the circumstances obviates the necessity of making too close a scrutiny of the Ligonier's proceedings. There were doubtless several things she could have done, for example, abandon her work on the barge, if she had known the Waverley would insist upon proceeding notwithstanding the situation, but I do not deem it necessary to go into such discussions, as the attempt of the Waverley to pass without the consent or co-operation of the Ligonier, is sufficient to account for the collision.

The libellant will have a decree, with an order of reference.

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