SMITH v. The CREOLE et al., 22 F. Cas. 497

GBIEE, Circuit Justice. When canal boats, or other like vessels, are towed by steamboats, it is usually under a contract, which puts the towed vessel wholly under ilie direction and control of the officers of the steamboat. In such cases the steamboat would be .liable for any collision occasioned by the negligence or want of skill of her officers: But when the steam power has been hired to tow larger vessels in or out of port, the contract is different, and creates a different state of responsibility.

The tow-boat in such cases is the servant of the ship, and in the exercise of its physical power is bound to obey the orders of the master or pilot who has command or control of the ship. If the tow-boat obeys the directions of the pilot or master of the vessel, he is responsible for the consequences. If the ship is brought into collision with another vessel, by the un-skilfulness or disobedience of orders of the officers or handB on the tow-boat, its owners are liable to the owners of the vessel or person who employed them, but not to, third parties.

Their recourse is to the master and not the servant, unless in case of malicious or wilful injury. It is only necessary to refer to The Duke of Sussex, 1 W. Bob. Adm. 270, The Duke of Manchester, 2 W. Bob. Adm. 478, and The Gypsey King, Id. 537. Second. The position assumed in behalf of the ship, and by which it is sought to cast the responsibility on the immediate cause of it — the pilot — raises a question of vast importance in its bearing on our bay and river navigation.

In most, if not all the ports of the United States, the laws for licensing and regulating pilots, are enacted by the different states in which the ports are situated. And however variant they may be in their details, they generally require a vessel entering or leaving a port, to employ a licensed pilot. The persons licensed are seldom of sufficient property to respond in damages for their acts of negligence, nor are they required to give security to a sufficient amount to meet such responsibility.

If the colliding vessel be discharged from liability, while under the, direction of a licensed pilot, and recourse for the injury- can be had against the pilot alone, the injured party will, in most cases, be wholly without remedy. It is a violent presumption against the validity of this defence, that in the numerous cases of collision daily occurring in the United States, in many or most of which, no doubt, the vessels have been under the control of licensed pilots, the owners have, not endeavoured to avail themselves -of it.

Nor has the learned counsel for the respondent, with all his research, brought to my notice a single case in the common law or admiralty courts of the United States, where this defence has been held available. On the contrary, in the case of Bussy v. Donaldson, 4 Dall. [4 U. S.] 200, in the supreme court of Pennsylvania, when this defence was set up, it was not sustained, and Chief Justice Ship-pen, speaking in 1800, of the pilot law of Pennsylvania — an earlier law than the one now in force, but in this particular

section the same as the present one — says, “The legislative regulations were not intended to alter or obliterate the principles of law, by which the owner of a vessel was previously responsible for the conduct of a pilot; but to secure, in favour of every person (strangers as well as residents) trading to our ports, a class of experienced, skilful and honest mariners, to navigate their vessels safe up the bay and river Delaware.

The mere right of choice, indeed, is one, nut not the only, reason why the law in general makes the master liable for the acts of his servant: and in many cases, where the responsibility is allowed to exist, the servant may not in fact be the choice of the master. For instance, if the captain of a merchant vessel dies on the voyage, the mate becomes cap- i tain, and the owner is liable for his acts, j though the owner did not hire him originally, j or choose him to succeed the captain. The : reason is plain: he is in the actual service of \ the owner, placed there, as it were, by the i act of God.

And so in the ease under consideration, the pilot was in the actual service of the owner of the ship, though placed in that service by the provident act of the legislature.” i The doctrine that the owners are not liable j for a collision by their vessel when under the control of a licensed pilot, was first introduced in England by the pilot act of 32 Geo. III. c. 30. passed in 1812. Previous pilot laws, although they required every vessel to take on board such a pilot under penalties, did not discharge the owners from liability for their negligence. It appears by the case of Bowcher v.

Noidstrom, 1 Taunt. 508, which was decided before Chief Justice Mansfield in 1809, that this notion that a licensed pilot was not considered a servant or agent of the owner, had obtained no place in courts of justice; for the chief justice held the master liable, on the assumption that he represented the ship or owners; and the case was reversed, not because his legal position was incorrect — to wit, that the ship or owners would have been liable for the act of ! either master or pilot, as their servant; but because one servant was not liable for the act of another, who was not his subordinate.

The case of Fletcher v. Braddick, 2 Bos. & P. (N. R.) 182, though not directly in point, seems not to recognise the same principle, i In cases of collision, the injured party has a remedy by action at common law, not only against the owners, but the master. And although the master of the vessel is the servant of the owners, and they are liable for his acts in the course of his employment, he is an exception to the general rule, that the remedy of third persons for the servant's acts of negligence is only against the master.

As the pilot, when on board, has the absolute and exclusive control of the ship, the master might well defend himself against liability for the acts of one over whom he has no control or authority. Therefore by the maritime law the master is not held liable for the acts of mariners, who are not of his own choosing, and who are not acting under his orders. Moll, de J. Mar. bk. 2, c-3, § 12. The pilot is for the time master of the vessel, and substituted in the place of the captain, with the same duties and responsibilities.

But it is far from being so clear as a principle, either of maritime or common law, that the vessel or the owners are discharged from responsibility for the-same reason. Pilot laws are intended not to burthen commerce, but for Its benefit and safety. As a general rule, masters of vessels are not expected tobe, and cannot be, acquainted with the rocks- and shoals on every coast, nor able to conduct a vessel safely into every port Nor can the absent owners, or their agent, the master, be supposed capable of judging of the capacity of persons offering to serve as pilots..

They need a servant, but are not iu a situation to test or judge of his qualifications, and have not therefore the information necessary to choice. The pilot laws kindly interfere,, and do that for the owners which they could, not do for themselves. It selects persons ol skill and experience, and requires them to-give bonds for the faithful performance of their duties; and if it should happen in some particular cases, that owners may not need the services of such pilot selected by law. it is but just that they should contribute to the-support of a system instituted for their benefit.

This compulsion which is supposed to annul the relation of master and servant between pilot and owners, is more imaginary than real. It has its origin rather in minute-verbal criticism of the language of the pilot laws, than on fact. The Pennsylvania pilot law, it is true, “obliges” a pilot to be taken on board, under the penalty of paying half pilotage. But, as has often been said, there-is no magic in words.

For after all, it amounts only to this: That vessels which do not find it necessary to avail themselves of the services of pilots provided for them by the law, may be piloted by the master or other person, if they prefer it; but in such cast-they will be required. to pay a small tax, equal to half pilotage, for the benefit of tin-wives and children of those whose lives art-daily exposed to peril and hardship, for the-purpose of tendering their services, if needed.

The assessment of a tax for the support of a system so beneficial to ship owners, where-the services are declined is no compulsion, and calling it a penalty, will not alter the-case. The vessel when under the control of a pilot, is in the legal possession of the owners. The pilot is their servant, acting in: their employ, and receiving wages for services rendered to them. The fact that he was: selected for tliem by persons more capable of judging of his qualifications, cannot alter-the relation which he bears to the owners. He is still their servant. The court of exchequer in the case of Attorney General v.

Case. 3 Price. 302, confirm what I have said, that before the pilot act of 52 Geo. III. (1812), the owner was held liable-for the act of the pilot as his servant. They decided also, that the Liverpool pilot act was not compulsory or penal, though it required the vessel to pay the pilot’s wages, whether it employed him or not. In the ease before us the master may decline the services of the pilot, by paying half his wages. I am well aware that Dr. Lushington, in the case of The Maria, 1 W. Bob.

Adm. 95, which arose on the Newcastle pilot act, has given a different construction to the Liverpool pilot act, because it uses the words ‘‘oblige and require.” The English cases on this subject, since 1812, cannot be reconciled with one another, and have not been adopted, as precedents here. On. the contrary, the case of Bussy v. Donaldson, in which I have quoted the opinion given by Chief Justice Shippen, has been adopted as founded on the sounder reasoning. See Yates v. Brown, 8 Pick. 23; Williamson v. Price, 4 Mart. (N. S.) 399; 3 Kent Comm. 175, 6.

And in 1847, quite independently of that precedent, and without the least reference to it, the supreme court of Pennsylvania again interprets the statute before us in the same way as he did the one before him, in this respect, exactly like it. Flanigen v. Washington Ins. Co., 7 Pa. St. 312. They say: “The legislature have wisely decided not to compel the owners to employ a licensed pilot, but have permitted them, if they please, to compound by paying half pi-lotage, for the benevolent and beneficial purpose of relieving distressed and decayed pilots, their widows and children.

This act sets out an inducement to avail themselves of their services, but does not compel them to do so. This construction of the act is reasonable and just.” Thus far I have considered the question on the principles peculiar to the common or civil law relating to master and servant, rather than those of the maritime law. The proceeding in this case is in rem, for a maritime tort The rights and remedies of the libel-lants are to be tested by the principles of that law, unaffected by any statutory provisions.

A proceeding in rem, in admiralty, is not a mere attachment to edmpel the appearance of the owners, as in civil law proceedings, and attachments under the custom of London, which are not proceedings in rem in the admiralty sense of the phrase. The court of admiralty proceeds on the principle that the vessel itself is hypothecated by the contracts, as well as the obligations arising ex delicto of the master, and is herself liable for all maritime liens.

The owners and others interested, are allowed to intervene pro interesse suo; and for convenience of trade and commerce, are permitted to release the vessel, by substituting their stipulation and security in its place. But the property attached is, in all cases, treated as the debtor, and primarily liable. By the maritime law, the power of the master to bind the owners by his obligations ex ■ delicto, did not extend beyond the tacit hy-pothecation of the property in his possession.

By surrendering the hypothecated vessel, the owners escape further liability, or if they in--tervene, cannot be made liable beyond her value. These principles which prescribe the powers of the master of a vessel, are not drawn from the doctrine of the civil law concerning the relation of master and servant, but had their origin in the maritime usages of the middle ages. By these the ship was bound to the merchandise and the merchandise to the ship; and both are bound for the mariners’ wages, “even to the last nail of the ship.” By these the master was authorized to bind the vessel by bottomry.

And by these the vessel becomes hypothecated for the obligations of the master arising ex delicto, and is herself treated as the debtor or offender, Hence, also, the vessel became bound to those who dealt with the master, whether he was appointed to act as their agent, or the ship was let to him on charter-party. It is unnecessary to make an array of the various European writers on this subject, as author-ity for these statements. I refer for them to the opinions of Judge Ware, in the cases of Poland v.

The Spartan [Case No. 11,246]; The Rebecca [Id. 11,019], and The Phebe [Id. 11,-004], in which the origin and principles of maritime law affecting the liability of vessels for the contracts of the master, are treated with the ability and research which distinguished that judge. It would seem to follow from these principles, that third persons, who may be supposed tó be ignorant of the owners, have a right to treat the vessel as primarily liable, ex delicto, for the acts of the owner, who has the legal possession and control of her movements.

The pilot is the master for the time being — as such, also, he is legally in possession, acting for the owners and in their services. The law which hypothecates the vessel for negligent or wrongful acts of her commander. does not stop to inquire as to the mode of his appointment, or the motives or degree of consent which accompanied it. It is in accordance with these principles that the case of The Neptune the Second, 1 Dod. 4C7. was decided by Sir W. Scott, in 1814, two years after the passage of the pilot act of 52 Geo. III., already referred to. It is supposed by Dr. Lushington (1 W. Hob.

Adm. 49), that the learned judge overlooked the provisions of that statute; but as a true statement of the maritime law unaffected by statute regulations, it has never been impugned. In that case the pilot was ■wholly in fault, and it was objected that the-vessel and the owners were not liable for the damages occasioned by the collision. But Sir W. Scott asserted the law to be, "That the parties who suffer are entitled to have their remedy against the vessel that occasioned the damage. and are not under the necessity of looking to the pilot for compensation.

It cannot be maintained that the circumstance of having a pilot on board, and acting in conformity with his directions, can operate as a discharge •of the responsibility of the owners.” I am authorised to say that the point of law now before us, has been decided by my Brother Wayne, in the district of South Carolina, in the same way as I now determine it. Judgment reversed.