At the moment this opinion is to be pronounced the court has learned the deplorable loss of the barque and her master and mate, in the recent tempest off our coast. Still it is necessary to render the decree demanded by the pleadings and proofs in the case.
In the afternoon of the 15th of December last, the barque, a Swedish vessel, arrived in this port and was moored by the pilot who brought her in, at pier No. 2, North river. She was secured fore and aft, by a % inch chain, and the great preponderance of evidence is, as was admitted by the counsel for the claimant and respondent, that she was not secured, in her position on that side of the harbor, and at that season of the year, according to the usage of the port, in the amount and sufficiency of her fastenings-An unusually heavjr gale of wind from the northwest, set in early that evening and continued through the night, and at five o’clock the next morning, when the master and crew were taking measures to apply more fastenings further to secure her, the forward chain parted, and the barque was
Tbe action bas been contested essentially Upon two points of objections in law: First, that tbis court bas no jurisdiction of cases arising at tbe wharves and piers of tbe city; and, secondly, that tbe master and barque are exonerated from responsibility, sbe having been placed and left in that condition by the pilot who moored her.
1. Tbe collision causing tbe damage was a maritime trespass committed upon tide waters, and as such within tbe jurisdiction of admiralty courts. [Manro v. Almeida] 10 Wheat. [23 U. S.] 473. And no distinction is taken in the authorities limiting such jurisdiction to waters not flowing into piers in a port. Laws Oleron, art 14; 2 Pet Adm. 313 [Moxon v. The Fanny, Case No. 9,895]; 2 Gall. 400 [De Lovio v. Boit, Case No. 3,776]; Bullock v. Tbe Lamar [Id. 2,129]; 5 Law Rep. 200 [Hale v. Washington Ins. Co., Id. 5,916]; 2 Abb. Shipp. 99, note; Bee, 51 [Martins v. Ballard, Case No. 9,175.] Admiralty courts take cognizance of cases of collision w'ithin harbors and upon rivers where tbe tide ebbs and flows, although within the body of a country. 8 Law Rep. 275 [Bullock v. The Lamar, Case No. 2,129], Wayne, J. Tbe doctrine has been declared in numerous cases in tbis court, and I am not aware of any accredited decision in tbe United States to tbe contrary. MSS. vol. 5, 77; Id. 8, p. 6 [Cases Nos. 17,242a and 1,672], 6 How. I shall accordingly pronounce in favor of tbe jurisdiction in tbis case.
2. There is no foundation for tbe idea that tbe authority or responsibility of tbe master or owners of tbe vessel was any way lessened by tbe act of tbe pilot in mooring her. That of tbe owners would have remained entire, bad tbe collision happened when tbe vessel was under way under the direction of tbe master, although the command of the master, and his personal responsibility, may perhaps be suspended for tbe time the pilot has charge. Abb. Shipp. 161, note; Jac. Sea Laws, 125; Curt. Merch. Seam. 195. 196, notes; [Jackson v. Winchester], 4 Dall. [4 U. S.] 206; 9 Wend. 1. But after tbe vessel was brought safely into port, tbe authority and responsibility of the master were fully restored, and the acts of tbe pilot in arranging or fixing her moorings must be regarded as directed or adopted by the master. So upon tbe authorities, it would whilst tbe pilot is navigating tbe vessel, unless the law compelled the master to take a pilot. Curt. Merch. Seam. 196, note. I think, accordinglj', it is no matter of de-fence in tbis case that the barque was moored under the directions of the pilot. No law or port regulation has been shown compelling the master to submit to tbe directions of the pilot in respect to the fastenings of bis vessel, and the owners and master consequently are responsible for damages occasioned through negligence or want of due precaution in tbis respect.
Although in tbe course of the hearing it was conceded on the part of the claimant and respondent that tbe evidence had established tbe fact that tbe fastenings of the barque were insufficient and not according to the custom of the port, and tbe court accordingly stopped the libellants giving further proof to that point, yet on the argument it was urged that tbe damage was caused by vis major, a sudden and extraordinary tempest, which in addition to the necessary strain and pressure upon tbe vessel, bad raised masses of boards from the dock, and driven them against tbe rigging, thereby forming a bulwark which exposed her still more to the violence of the gale, and caused her fastenings to give way. It is sufficient in reply to that branch of the defence, to advert to the proof that the gale commenced early the preceding evening and continued throughout the night with increasing violence, and accordingly the master was warned in due season of the necessity of precaution in respect to his ship. He neglected increasing her fastenings for twelve hours, leaving her in almost a hurricane with only a single and small chain to secure her. Had the disaster occurred in a sudden squall striking the vessel without premonition the defence would be countenanced by a more urgent equity to favor it, but it was negligence to trust his vessel through the night under a tempestuous wind, the wind straining her oft the wharf secured with no more than a single and slender chain, which would have been the slightest degree of fastening to be used in the most sheltered position and calmest of weather.
The libellant seeks also to sustain their action against the respondent upon his alleged promise to pay the damages. I do not discuss the question whether such a promise could be enforced in this court, because in my judgment, there is a failure of proof to establish it. He is a foreigner speaking English very imperfectly, and the alleged promise is what was understood by the captain and some of the crew of the steamboat to have been said by the respondent in reply to a statement to him by the captain of the steamboat If it be admitted the conversation was under circumstances in which the respondent might be regarded as acting with reasonable composure of mind and so as to be bound by his declarations, I think the testimony entirely too vague to show that he really comprehended what had been said to him, or that his answer was properly understood.
The decree will be against the vessel for the' expenses of repairing the steamboat,
[For subsequent proceedings in this case, see The Lotty, Case No. 8,524.]