By the Court,
Savage, Ch. J.The motion for a new trial rests on the double ground that the judge erred in his instructions to the jury, and that the verdict is against the weight of evidence.
The question how far the captain of a steam-boat is responsible for the acts of the pilot in navigating the boat, is one of importance and difficulty. The officer here called the pilot, is not the same as the pilot recognized in the laws regulating foreign commerce. Vessels are required, by the laws of most *11commercial countries, to take a pilot in what are called pilot’s water; and if the captain of such vessel omits to do so, he takes the consequences upon himself. When such a pilot is on board, he has the exclusive direction and control of the vessel, and is considered master pro had vice. He is responsible, and of course supersedes the master for the time. Jacobson's Sea Laws, 125. The case of Snell and others v. Rich, 1 Johns. R. 395, was an action on the case against the master of the Amphion, for negligence in so navigating that vessel that she ran foul of the plaintiff’s vessel, and carried away her bowsprit It appeared in evidence that the defendant was not on board at the time of the accident. The Amphion had a branch pilot on board. The judge charged the jury, that under these circumstances the defendant was not liable ; and the court sustained the charge of the judge, saying that the pilot must be considered master pro hac vice; that as the master was not on board, he certainly was not master at the time of the accident. In Bussy v. Donaldson, 4 Dallas, 206, it was held that the owner was liable for the negligence of the pilot, on the ground that he was the agent or servant of the owner, although he was not chosen by the owner, but placed in his service, by the act of the legislature. In many of the cases referred to on the argument, the principal question seems to be, whether trespass or case is the proper action where damage ensues from one ship running foul of another. In Ogle v. Barnes, 8 T. R. 188, Lord Kenyon says, if the act occasion an immediate injury to another, trespass is the proper remedy; but if the injury be not immediate, but consequential upon the act done, then an action on the case should be brought. Grose and Lawrence, justices, say that the distinction is between acts done wilfully and negligently. The case of Leame v. Bray, 3 East, 593, came before the court about four years after Ogle v. Barnes: and in that case the true criterion was said to be, whether the injurious act be the immediate result of the force applied by the defendant; it is immaterial whether the act be wilful or not. And Lawrence, justice, says, that in Ogle v. Barnes, he did not mean to say that the distinction turned on the wilfulness of the act. In Hugget v. Montgomery, 5 Bos. & Pul. 446, the action was trespass against the *12master of a vessel and also owner, for an injury done to the p]aintiff’s vessel. The jury found that the injury arose from the negligence of the pilot, and rendered a verdict for the plaintiff. The court set aside the verdict and ordered a nonsujt. ^ey considered the pilot as the servant of the defendant, who in this instance was both master and owner; and the court do not distinguish in which capacity the pilot was his servant.
The question here is not so much whether case is the proper form of action, as whether the action lies against the present defendant—he not being the owner of the boat, and not being present or giving any direction when the injury was done. It is contended that he is a middle man; neither the owner for whom the boat was navigated, nor the person who committed or concurred in the act from which the injury arose. To establish this proposition, the case of Stone v. Cartwright, 6 T. R. 411, has been relied on. In that case the defendant was agent and manager of an infant’s estate, appointed by the court of chancery. As such, he employed the workmen who worked a colliery belonging to the infant’s estate. From the negligence of the workmen, the plaintiff had sustained an injury, but the court held the defendant was not liable. Lord Kenyon said that the action must be brought against the hand committing the injury, or against the owner for whom the act was done. This case, I apprehend, is" not analogous in its circumstances, though the principles laid down may be applicable. The defendant in that case hired and dismissed the workmen at his pleasure, and employed a bailiff under him to superintend the work. He took no personal concern in the business, and was not present when the injury was done. The relation of master and servant did not exist between the defendant and those workmen who were employed by him; he was the mere agent of the owner. The work was not done for his benefit, and he had personally no concern in the profits of the labor; nor did he direct the particular act from which the injuryproceeded; and again there was nothing in his situation analogous to that of master of a vessel. The principle may be of extensive application, that the action must be brought against the hand committing the in*13jury, or the owner for whom the act was done. It was remarked by Lawrence, justice, that had the defendant particularly ordered the acts to be done from which the injury proceeded, that would have varied the case. There the defendant employed the workmen. So also the captain of a vesssel usually employs the mariners and appoints his subordinate officers. The defendant in that case had nothing to do personally with the management of the colliery. Not so with the master of a vessel; it is his particular business to superintend the navigation of his vessel and direct its course.
The circumstances of the appointment of the officers seems to have been considered important in the case of Nicholson v. Mounsey & Symes, 15 East, 383, which was an action against both defendant for negligence in the management of their vessel, by 'reason of which the defendants’ vessel ran foul of and destroyed the plaintiff’s ship. The defendant Mounsey was captain, and the defendant Symes first lieutenant, of a sloop of war. All the officers of the sloop were appointed by the commissioners of the admiralty, and not by the captain of the vessel. Symes was the commanding officer of the watch, and upon deck when the injury was done. Mounsey was not upon deck, nor required by his duty to be there at the time. It was not pretended that negligence was personally imputable to Mounsey, unless he was responsible as captain of the ship. On the part of the plaintiff it was argued that the captain of a ship of war was answerable in the same manner as the captain of a merchant ship, who is answerable for the misconduct of his crew in the management of the ship, by which any one sustains damage. On the part of the defendant Mounsey, it was contended that the principle upon which masters are liable for the acts of their servants was not applicable—that principle is, that the servants are appointed and employed by the masters, who should be careful to employ none but such as are persons of competent skill and due diligence. Lord Ellenborough, in giving the decision of the court, held that the captain of the sloop of war was not master in the ordinary acceptation of the term. He had no power of appointing the officers or crew on board, and he was no volunteer in that particular station, merely by having origin*14ally entered into the naval service. He had no power of appointment or dismissal over those under him. The captain and lieutenant were both appointed by the same authority, and both had their appropriate duties to perform ; both were servants of one common master, but there was no consent by the one to the act of the other. The case of Webb v. Drake, cited by Abbott, arguendo 15 East, 387, was referred to on the argument, in which the captain of a public vessel had been held responsible for the act of his lieutenant in running down another, though the captain was at the time asleep in his cabin; but it appeared in that case that the captain had given the orders for the particular tack to be made in the course of which the vessel had been run down, although before the injury he had gone below. In that case» however, the jury found a verdict for the defendant, and the direction of the judge as to the liability of the captain never came before the court. This same case was referred to very briefly in Bowcher v. Noidstrom, 1 Taunt. 569, where it seemed to be taken for granted that the captain was liable, and in which case the court seemed to acknowledge the principle that the master was liable for the conduct of a pilot on board his vessel; but as that was an action of trespass, and the captain had done no act, they directed a nonsuit.
The only case in this court which is at all analogous is the the case of Foot & Reynolds v. Wiswall, 14 Johns. R. 304. That was an action against the- defendant, as captain-of the steam-boat Paragon, for running foul of the plaintiffs’ sloop. The cause was tried before the recorder of New-York in the common pleas of that city. The recorder charged the jury that the defendant was prima facie liable for the injury, and that it lay upon him to shew that it did not arise from negligence on the part of those who navigated the steam-boat. The question of negligence he submitted to the jury, saying that if the plaintiffs’ vessel might with proper care have been avoided, then the plaintiffs were entitled to their verdict; for the circumstance of there being no light on board the sloop in such case would be no excuse for the defendant : but if there was no want of care on the part of the defendant, then the charge of negligence would apply to the plaintiffs, there being no light on board of the sloop. The jury found a ver*15diet for the defendant. The plaintiffs brought a writ of error on the ground that the question of negligence was a question of law. The court said that the question of negligence was a mixed question, (the facts are to be found by the jury; and whether those facts will in judgment of law warrant the charge of negligence, is matter of law,) but that the case had been fairly submitted to the jury and they affirmed the judgment. In that case it appeared that the captain was not the immediate agent, being below when the collision took place. It was said on the argument that the defendant was guilty of negligence in navigating his boat in a dark night, which was answered that the plaintiffs were equally guilty by navigating their sloop. It is to be remarked that no question was raised as to the liability of the captain, provided those persons vrfao managed the steam-boat at the time were guilty of negligence 5 neither was there any thing said about the manner of his appointment or that of his crew, whether the hands or pilots were employed by the owners or by the captain.
Were this an action against the master of a vessel engaged in the merchant service, it seems to be conceded by all the cases that he would be liable. In such cases, the master is re-responsible for the diligence of all to whom is entrusted the management of the vessel. On the other hand, were the action against the captain of a ship of war, the case of Nicholson v. Mounsey proves that the captain is not responsible for the negligence of the other officers. For this exemption two reasons seem to be assigned: one is, that the captain and his officers are all appointed by the same authority, and the captain cannot appoint or remove his inferior officers; the other reason is, that the captain is not a volunteer in the station where he is found. He is obliged, from the office which he holds, to take command of any vessel to which he may be assigned, with such other officers and crews as he may find there, and make the best of them. A steam-boat for the transportation of passengers with their baggage, and for carrying small freight, is a merchant vessel; and though the pilots are appointed by the owners, and not by the captain, yet the captain is a volunteer in that service, in the language of Lord Ellenborough. The steam-boat service is not like the naval *16service of a nation. No captain is bound to engage as such ; jje has a choice whether he will serve such persons as the owners choose to put on board as officers. He knows the responsibility of master of a vessel, and if he is unwilling to • be responsible for the negligence of the subordinate officers, he is under no compulsion to serve there himself. If he accepts the office of master of the vessel, he does so with the knowledge of the responsibility which as such he incurs. If the owner of a merchant ship were to stipulate with the master that he should take certain persons for his mates, that, I apprehend, would not alter his responsibility to third persons, however it might affect his responsibility to the owner.
On the whole, I am of opinion that the fact of the pilot being chosen by the owners does not alter the law as to the captain’s responsibility. Suppose the owners should contract, not only with the pilots, but with all the hands on board, through the agency of some other person besides the captian, as they probably do, would the captain therefore become entirely irresponsible 1 and must any one whose vessel has been run down, where a totally irresponsible person was at the wheel, bring his suit against a common sailor ? The owners of a vessel may not be known ; they may be residents of a foreign country. It would be adding insult to injury to say to a man, whose property had been destroyed, that he has his remedy against a common sailor, or the owners who perhaps live in Europe. My opinion is, that, the master of a steam-boat is liable like the master of a merchant ship; and that the circumstance of the pilot’s being appointed by the owners does not discharge that liability, so far as third persons are concerned. Having come to this conclusion, it is unnecessary to inquire whether the verdict was against evidence.
New trial granted; costs to abide the event.