This action has been contested essentially upon two points. The respondents contend, first, that this dourt has no jurisdiction of cases of - collision occurring at the wharves and piers of the city; and secondly, that the master and bark are exonerated from responsibility, the vessel having been placed and left in that condition by a licensed pilot, who navigated her into the harbor and moored her. The collision causing the damage was a maritime trespass, committed upon tide waters, and as such is, upon general principles, within the jurisdiction of the admiralty. [Manro v. Almeida], 10 Wheat. [23 U. S.] 473. It takes cognizance of eases of collision within harbors, and upon rivers, infra corpus comi-tatus, where the tide ebbs and flows. Bulloch v. The Lamar [Case No. 2,129]. The doctrine has been declared in numerous cases in this court, and I am not aware of any accredited decision in the United States to the contrary; and no distinction is noted in the authorities restricting the jurisdiction over waters in harbors, not flowing into and out of slips, basins, &c. Laws of Oleron, art. 14; Moxon v. The Fanny [Case No. 9,895]; De Lovio v. Boit [Id. 3,776]; Hale v. Washington Ins. Co. [Id. 5,916]; Bulloch v. The Lamar [supra]; Abb. Shipp. 99, note. Canizares v. The Santissima Trinidad [Case No. 2,383]. I shall accordingly pronounce in favor of the jurisdiction in this case.
Upon the second point there is no foundation for the idea that the authority or responsibility of the master or owners of the vessel was any way lessened by the act of the pilot in mooring her. That of the owners would have remained entire had the collision happened when the vessel was tinder way under ,the direction of the pilot, although the command of the master and his personal responsibility may, perhaps, be suspended for the time. Abb. Shipp. 161, note; Jac. Sea Laws, 125; Curt. Merch. Seam. 195, 196, notes; [Bussy v. Donaldson] 4 Dall. [4 U. S.] 206; 9 Wend. 1. But after the vessel was brought safely into port, the authority and responsibility of the master were fully reinstated, and the acts of the pilot in selecting her berth and arranging her moorings must be regarded as directed or adopted by the master. By parity of reason his liability should be the same whilst the pilot is navigating the vessel, when he is not compelled by law to take a pilot. Curt. Meroli. Seam. 196, note. I think, accordingly, that it is no matter of defence in this case that the bark was moored by the particular orders of the pilot. No law or port regulation has been shown subjecting the master to the authority of the pilot in respect to the position or fastenings of his vessel after she is brought into port, and consequently the master, equally with his owners, is responsible for damages occasioned through ignorance, negligence or want of due precaution in the pilot in this service.
Although, in the course of the hearing, it was conceded on the part of the claimant and respondent, the evidence had established the fact that the fastenings of the bark were insufficient, and not according to the custom of the port, and the court accordingly stopped the libellants giving further proof to that point, yet, on the argument, it was insisted that the damage was caused by vis major, a sudden and extraordinary tempest, which, in addition to the necessary strain and pressure upon the vessel, had raised masses of boards from the dock and driven them against, the 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 avoidance of that branch of the defence that the gale commenced early the preceding evening, and augmented throughout the night in violence; and accordingly the master was warned in due season of the necessity of active precautions in securing his ship. He neglected strengthening her fastenings for
The libellants seek also to sustain their action upon the alleged promise of the respondent to pay the damages. The respondent denies making such promise, and also the authority of this court to take cognizance of verbal contracts of indemnity made after a loss or injury had occurred, if indisputably proved. I do not discuss the question of jurisdiction on this point, because, in my opinion, there is no sufficient proof that the respondent made the alleged agreement. He is a foreigner, who speaks English very imperfectly. The promise set up is no more than the impression gathered by the master and some of the crew of the steamer, from his reply to a statement made by the master of the steamboat, at a time of considerable agitation and excitement on both sides. If the declaration was admitted, and the respondent might be regarded acting with reasonable composure at the time, I think the testimony entirely too vague and conjectural to be accepted as proof that he clearly comprehended what had been said to him, or that his reply to it was correctly understood. The decree will be against the vessel for the expenses of repairing the steamboat, no allowance being made for the loss of the trip, and it must be referred to a commissioner to estimate and report the damages pursuant to these directions.