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A. 424, 33 U. S. App. 543, 75 Fed. 424; The

On petition for rehearing. Neuburgh, 124 Fed. 954; The Rabboni, 53 The district judge, in reaching his conFed. 952; The Parthian, 5 C. C. A. 171, 5 clusions upon the question of contributory U. S. App. 314, 55 Fed. 426; The Mabel negligence, did not rely upon Davies v. Comeaux, 24 Fed. 490; The James M. Mann. Thompson, 12 Fed. 189; The Pegasus, 22 Among the authorities which were before Blatchf. 7, 19 Fed. 46; The David Dows, 16 the district court, and upon which it relied, Fed. 160; The Pennsylvania (The Pennsyl- was Cayzer v. Carron Co. L. R. 9 App. Cas. vania v. Troop) 19 Wall. 136, 22 L. ed. 151, 873, in which it was held that, even assum1 Conkling U. S. Adm. 373; Ladd v. Foster, ing that the Clan Sinclair had transgressed 31 Fed. 827; The Grace Girdler (Lockwood the rule, yet such transgression was not the v. The Grace Girdler) 7 Wall. 203, 19 L. ed. cause of the collision; that ordinary care on 116; Memphis & St. L. Packet Co. v. H. C. the part of the Margaret would have enabled Yaeger Transp. Co. 3 McCrary, 259, 10 Fed. her to avoid the collision, and that she alone 395; The Monticello, 15 Fed. 474; The Col was to blame. umbia, 27 Fed. 238; The Roman, 12 Fed. Cayzer v. Carron Co. L. R. 9 App. Cas. 219; Connolly v. Ross, 11 Fed. 342; The 873; The Nereus, 23 Fed. 448; The PennRichmond, 12 C. C. A. 1, 26 U. S. App. 183, land, 23 Fed. 551; The Britannia, 34 Fed. 63 Fed. 1020; The Anerly, 58 Fed. 794; The 546; The Titan, 44 Fed. 510; The SusqueMarion, 56 Fed. 271; Fristad v. The Pre- hanna, 35 Fed. 320. mier, 51 Fed. 766; The John Henry, 3 Ware, Persons having business on board of a ves264, Fed. Cas. No. 7,350.

sel do not commit a negligent act by perMessrs. William H. Looney and Ben- mitting themselves to be in the bight of a jamin Thompson, for appellee:

line, especially when their duties require The dredge owed libellant the duty of them to be there. prosecuting its work with reasonable skill, The Calista Hawes, 14 Fed. 493. care, and prudence to provide for his safety.

The Calista Hawes, 14 Fed. 493; The City Putnam, Circuit Judge, delivered the of Naples, 16 C. C. A. 421, 32 U. S. App. opinion of the court: 613, 69 Fed. 794 ; Low v. Grand Trunk R. This was a libel brought in the district Co. 72 Me. 313, 24 Am. Rep. 331; Gerrity v. court for the district of Maine against The Kate Cann, 2 Fed. 246.

Steam Dredge No. 1, a vessel engaged in He had a right to assume that the crew dredging, under a contract with the United would properly perform their duties, and, if States, in Cape Porpoise harbor, in the disthey were going to do anything out of the trict of Maine, for injuries to William Nel. ordinary course, or subject the bitt to any son, on the 4th day of September, 1900. unusual strain, that they would give him The substance of the allegations of the libel notice.

is that at the time of the injury Nelson was The Calista Hawes, 14 Fed. 493.

employed by the United States, aboard the In the common-law courts, contributory dredge, as an assistant inspector in regard negligence which will defeat the plaintiff's to improvements then being made at Cape right of recovery must be a concurring neg. Porpoise harbor; that, as part of his duties, ligence.

it was necessary for him to observe whether Gilbert v. Erie R. Co. 38 C. C. A. 408, the work was being executed in accordance 97 Fed. 747; Inland & Seaboard Coasting with the plans and specifications, and, as Co. v. Tolson, 139 U. S. 551, 35 L. ed. 270, 11 incidental thereto, to note the shifting of Sup. Ct. Rep. 653; Turnbull v. New Orleans the position of the dredge from time to & C. R. Co. 57 C. C. A. 151, 120 Fed. 783. time; that about 4 o'clock on the afternoon

Where the negligence is concurrent, or of the day in question, he was sitting on a both parties are at fault, courts of admi- double bitt for the purpose of observing a ralty will apportion the damages, or give change then being made; that the quarter or withhold them, in the exercise of a sound line used in moving the dredge came in over discretion, according to principles of equity the port quarter, was carried around the and justice, considering all the circum- forward part of the double bitt on which he stances of the case.

was sitting, and then inboard to a steam Olson v. Flarel, 34 Fed. 477; Anderson v. gypsy; that while the location of the dredge The Ashcbrooke, 44 Fed. 124; The Jax Mor. was thus being changed, either by reason of ris, 24 Fed. 860, Affirmed in 137 U. S. 1, 34 the heavy strain put on the quarter line by L. ed. 586, 11 Sup. Ct. Rep. 29; Heil v. the use of the steam gypsy, or by reason of Glanding, 42 Pa. 493, 82 Am. Dec. 537; the insecure condition or the insufficiency of Cayzer v. Carron Co. L. R. 9 App. Cas. 873; the bitt, the bitt suddenly broke off at the The Nereus, 23 Fed. 448; The E. A. Packer, deck, thereby causing the line to sweep over 20 Fed. 327; McCord v. The Tiber, 6 Biss. the front side of the deck, striking Nelson 409, Fed. Cas. No. 8,715.

and throwing him into a scow alongside;

that the injury was caused wholly by the the conditions in question; so that the issue negligence of the crew of the barge in sub- cannot be cut down to a mere contention as jecting the quarter line to an improper to the personal negligence of any single strain, and by reason of the weak and inse- member of the crew. The case, in this parcure condition the bitt; and that it was ticular, comes within the well-known prewithout negligence on the part of Nelson. sumptions which were applied by us in Burr We will refer again to such of these allega- v. Knickerbocker Steam Towage Co. 65 C. tions as are disputed and also are material. C. A. 554, 132 Fed. 248. Likewise we pass

The barge, while at work, was held in po- by, as not of substantial importance, all sition by spuds in the usual way; the out. criticisms arising from any suggestion that board end of the quarter line which was Nelson, at or about the time of the injury, used in moving her run out to an anchor, or was not actually engaged in his duties as some other permanent object, and it was inspector. Such duties required him to be kept taut to assist in holding the barge in quite constantly aboard the barge, and to position. The barge was moved by the use pass from time to time, in his discretion, of this and other lines. The inboard end of from one part of her deck to another. Of the quarter line was run over a gypsy head, course, there would be intervals when there operated by a steam engine of considerable would be no occasion for him to be actually power. Before putting the gypsy head in engaged in any immediate active duty; but gear, it was customary to raise the spuds, his presence aboard and about such parts of so that the dredge could be moved with the the deck as he might reasonably select, even assistance of the engine. On this occasion at those times, was proper, and entitled him the engine was started before the spuds were to protection. The law does not apply to this raised, with the gypsy head in gear, and the so fine a rule as to be impracticable. result was that the bitt broke off, as stated

Neither can it be said that the mere act in the libel.

of leaning against the bitt, or wholly sitting The answer alleges that the claimant of on it, was one of negligence. There is s the dredge is ignorant for what purpose evidence in the record that there was any Nelson was sitting on the bitt. It denies it reason, arising either from the condition of was necessary for him to sit there in the this particular vessel, or from the customdischarge of his duties. It denies that the ary course of events with reference to hapinjury was caused by the negligence of the penings in connection with bitts and lines, crew in subjecting the quarter line to an which would reasonably create any appreimproper strain, or by the weak and inse- hension that, in case of an unusual strain, cure condition of the bitt. It alleges that this bitt would give way instead of the line. Nelson was, at the crucial time, in a sitting It is common knowledge that it is customposition on the bitt, facing forward, with ary to lean against or sit on the windlass his feet and legs on the forward side of the or the bitt or the rail of a vessel; and yet bitt, and within the bight of the quarter each, especially the rail, under some circumline. Also, that the breaking of the bitt and stances, is subject to its own peculiar conthe consequent injury of the libellant were tingencies. In fact, it is difficult to say not caused by the negligence of any officer what part of a vessel is not at times so or any of the crew of the dredge, or of the subjected; and yet it remains to be shown owners thereof, but wholly by the negligence that a passenger, or other person rightfully of the libellant in assuming an unnecessary aboard a vessel, performing duties thereon, position on the dredge, and that he, as a is not entitled to be protected in any of man of long experience as a sailor and in these particular positions. For one, howspector, knew the dangers.

ever, to take a position in the bight of a It is not questioned that the bitt gave line, subject to a strain, is another matter: away, and that the cause of its giving away and to do this may well subject him to critiwas the starting of the engine while the cism as guilty of negligence if injury regypsy was in gear, and before the spuds sults to him. were raised. Much of the evidence and The facts, as understood by the learned many of the contentions of the parties relate judge of the district court, are so fully deto one Christiansen, one of the crew of the tailed in his opinion that we need not touch dredge, whose duty it was to take charge of on them further, except to a very limited exthe raising the spuds and to superintend tent. We have stated those parts of the case the lines. The dredge claims that he was where there are questions of mixed law and ignorant that the gypsy was in gear when fact, or where the topics are so far within the signal for moving was given, and also the common knowledge that we could appreignorant of the position of Nelson on the hend them clearly. As to the substantial bitt. But the work was in open daylight, questions of mere fact,--that is, as to negliunder circumstances where there was no dif- gence on the part of the libellant, so far as ficulty in perceiving and understanding all that is affected by the claim that he was

within the bight of the quarter line,--and | if it had been run in such a way as to as to the negligence of those whose duty receive the support of both uprights of the was to attend to the movements of the barge double bitt, braced as they were by the with reference to the strain put on the bitt cross-bar which we have described. Also and its giving way, the proofs are contra- other elements suggest themselves which dictory, and, moreover, not entirely clear. might well have been considered by the disThe learned judge of the district court trict court, but which are not clearly solved found that those who were at the time man- by the record; as, for example, the reasonaging the barge were guilty of negligence able probability that the power of the enas a matter of fact, and the effect of his gine of the barge was so great, and its acother finding is that the libellant had so tion was so sudden, and the quarter line itplaced himself within the bight of the line self so unyielding, that, whatever might be that he, also, was guilty of negligence. He the reasonable apprehension ordinarily, the also held that the negligence of those who reasonable apprehension in this particu. were maneuvering the barge supervened, solar case must have been that, where only a that, consequently, damages could not be di- single upright was availed of, as was the vided. We have carefully examined the rec- fact, the bitt would probably give way if ord, and, while there are unquestionably anything gave way. However all these things serious doubts on all the mere questions of may have been, we cannot, as we have alfact,- whether the libellant, and also ready said, satisfy ourselves that, if we whether those in charge of the barge, were should reverse the conclusions of the diseach guilty of negligence,-yet, under the trict court on these mere questions of fact, circumstances stated, we cannot determine we should reach any new conclusions which that any conclusion we might reach, differ- could be better supported than those of that ent from those reached by the district court, court. would be more satisfactory to ourselves, or It may be said that the district court did better supported by the record.

not positively find that the libellant was The allegations of the libel, in that it guilty of negligence in placing himself in the says that the sudden breaking of the bitt bight of the quarter line. It said that, in lean. caused the quarter line "to sweep over the ing upon an object within the bight of a port side of said deck with tremendous rope, he assumed a position of some danger; force, striking the libellant, and throwing that “as a reasonable man, he must have him” into the scow, gives strong support to known that in placing himself in such a pothe proposition that the libellant was within sition he took some chances ;" and that he the bight of the line, although it does not must be charged with the knowledge of the necessarily lead to that conclusion. On the ordinary risk incident thereto. The court also other hand, the proofs in the record that the observed that it must be remembered that the construction of the parts of the barge in- libellant was not aware that the gypsy was volved were of an improved character, and in gear, and that the hawser would be subthe common knowledge that the bitt would jected to the strain to which it was exposed reasonably have been expected to bear even as a consequence thereof; and that, there. the strain which was improperly put on it, fore, this was a risk of which he had no leaves an impression that the injury to the knowledge, and which he cannot be held in libellant was not a consequence for which law to have assumed. The court also adds the barge, within the contemplation of the later: "It is true that the libellant was law, could be held responsible merely be guilty of some negligence in sitting within cause the gypsy was put or left in gear un- the bight of the hawser." Notwithstanding seasonably. Yet, in this case, the bitt con the libellant was entitled to exercise a libsisted of a bedplate of nearly 5 feet in eral discretion as to what parts of the barge length, and of good width and thickness. he would visit, as we have already explained, The length of the bedplate was in line with yet certainly he could have had no occasion the keel of the barge. From this bedplate to put himself within the bight of the quarcame up two uprights, also in line with ter line; so that, taking all in all, the obthe keel of the vessel, and braced by a heavy servations of the district court must be held cross-bar extending from one upright to the to amount to a finding that Nelson was other. The line was run around the up-guilty of negligence in this respect. That right which was nearer the gypsy, so it failed this negligence was specially contributory to receive the support of both uprights, follows from the allegation of the libel that braced as they were by the cross-bar which Nelson was struck and thrown by the quarwe have described. The upright around ter line. That it was of a lesser degree than which the line was run gave way at its the negligence of the barge, if it was such, base. To the common comprehension this it is settled cannot be taken account of in would not have occurred; and, in lieu admiralty, unless the ratio was thereof, the line would have given way,' whelming as to render his negligence trivial.

so

over

The district court does not find such to be the animal. The case, however, to which we the fact, nor are we impressed that it was. call especial attention, is the one we have

The refusal to apportion the damages, and already referred to,—Tuff v. Warman,-dethe assessment of the whole on the dredge, cided in 1858, where a barge was run down are sought to be justified on the strength of by a steamer. It was shown that the barge the line of cases represented by Davies v. was negligent in not having a lookout. NevMann, 10 Mees. & W. 546, decided in 1842. ertheless, the steamer saw the barge, but As we have said, we must adopt the findings failed to port her helm, as she should have of the district court on questions of mere done. It being a common-law suit, the fact. They show that it was the duty of the steamer was charged with all damages, on dredge, in providing for the safety of all the ground that she continued in a course concerned, to take care that when the steam which would inflict an injury, and was was to be given the engine, the spuds therefore liable, although the plaintiff had should be raised before the gypsy was put no lookout. We will have occasion to refer in gear, and that the managers of the dredge to this case again in a pointed manner. committed this duty to Christiansen. The Davies v. Mann, as interpreted and applied findings, also show that if he had properly in England, is undoubtedly the law of Engattended to that duty, he would have land, as was declared in the House of Lords. thrown the gypsy out of gear, and would Radley v. London & N. W. R. Co. L. R. 1 have seen to it that it was kept out of gear App. Cas. 754, 759. The difficulty, however, until the spuds were raised. While the find- of applying Davies v. Mann, even in Engings were that Christiansen knew that Nel land at that late day (1876), is apparent son was in a negligent position, it does not from the fact that there, under the direcappear that he knew that the gypsy was in tions of the trial judge, a verdict was algear, or how it happened to be in gear. The lowed to be taken for the defendant, which, presumption that it was through Chris on appeal to the divisional court, was set tiansen's fault that it was in gear, but there aside. The decision of the divisional court is no presumption that he had in mind, at was reversed in the exchequer chamber by the time the whistle sounded, that such was such eminent justices as Blackburn, Mellor, the fact. In other words whatever neyli- Lush, Brett, afterwards Lord Esher, and gence Christiansen was charged with, he Archibald. An appeal was then taken to the was not charged with having allowed the en- House of Lords, which reversed the exgine to be started with a present apprecia- chequer chamber, and restored the judgtion of both facts,—that Nelson was sitting ment of the divisional court. Lord Blackon the bitt and that the gypsy was in gear. burn, who, pending the appeal, had taken a If he had had both facts present in his mind, seat in the House of Lords, overruled himhis conduct in allowing the whistle to be self, concurring with the other lords. In blown while the gypsy was in gear might that case Lord Penzance, who delivered the have been so reckless or perverse that it opinion, in which the other lords briefly conmight well be said to have been the sole curred, put Davies v. Blann in two different proximate cause of the injury which re- forms. One was (page 759) to the effect sulted. But, for various reasons, Davies v. that if the defendant, by the exercise of orMann cannot be held to apply.

dinary care, might have avoided the misDavies v. Mann must be taken in connec-chief, the plaintiff's negligence would not ex tion with Butterfield v. Forrester, 11 East, cuse him; and the other (page 760) de60, decided in 1809, and Tuff v. Warman, 5 scribed the plaintiff's negligence as "a preC. B. N. S. 573, decided in 1858. Of the vious negligence.” Therefore it was not a three, the last-named case must be regarded concurring, nor necessarily a contributing, as the leading one according to Pollock. negligence in any sense of either of those exTorts, 6th ed. 1901, 448, where it is said pressions. that those earlier than Tuff v. Warman are In view of these varying applications, the

material only as illustrations. In observation of Pollock on Torts, at page 449, Butterfield v. Forrester, Lord Ellenborough to the effect that Davies v. Mann has been said that the fact that a person was on the much discussed in America, though not alwrong side of the street would not authorize ways wisely so, seems hardly suitable. This another purposely to ride up against him. is very patent in the light of Sir Frederick This relates to mere perverseness. He also Pollock's further observations as to Davies said some other things, more in line with v. Mann. In connection with the discussion Davies v. Mann. In Davies v. Mann, a of this case, at page 451, he quotes with apdonkey left unlawfully in the highway was proval one whom he styles a “learned writrun down by the defendant, driving a pair er," although anonymous, who undertook to of horses. Lord Abinger said, in effect, that restate the rule of Davies v. Mann, as folthe plaintiff could recover, as the defendant | lows: "He who last has an opportunity of might, by proper ca re, have avoided injuring' avoiding the accident, notwithstanding the

now

negligence of the other is solely responsible.” | lision with a schooner at anchor. The The same "learned writer” also said that, schooner was at fault. Nevertheless, the “if the plaintiff could, by the exercise of opinion observes at page 134, 98 Fed., page ordinary care, have avoided the accident, he 671, 38 C. C. A., that, if the Providence had cannot recover.” He sums up the result of used proper precautions, the collision might both rules to be that the law looks to the have been avoided, or at least the conseproximate cause, and “holds that person lia-quences would not have been serious. Again ble who was, in the main, the cause of the the damages were divided. injury.” As practically applied in England, In The America (The America v. Camden it may, after all, be well doubted whether & A. R. Transp. Co.) 92 U. S. 432, 436, 23 this whole line of cases means anything L. ed. 724, 727. one vessel was a tug and more than to illustrate and emphasize the the other a ferryboat. The ferryboat struck distinction between causa causans, which the tug on the port bow. The court states the fundamental rules of the law regard, that the proofs were clear that each vessel and causa sine qua non, which they do not was seen by the other in ample season to regard.

have prevented the collision, and yet, not As indicated by Pollock, Davies v. Mann only the ferryboat which struck the tug, but is still the subject of discussion in America, the tug, also, was held to half the damages. except so far as it recognizes the rule of a l'he New York, 175 U. S. 187, 209, 44 L. ed. subsequent, disconnected negligence, or the 126, 135, 20 Sup. Ct. Rep. 67, is another very rule of causa causans, or that of perverse marked case. One steamer was in fault for ness or persistency, spoken of by Lord El- not stopping when the other steamer failed lenborough. It is in this light that the In- to answer her signals. Both steamers saw land & Seaboard Coasting Co. v. Tolson, 139 each other, and both were held guilty, and U. S. 551, 558, 559, 35 L. ed. 270, 272, 273, damages divided. One of the most striking 11 Sup. Ct. Rep. 653, is to the implied effect of all is Atlee v. Northwestern Packet .Co. that the negligence of the plaintiff is a de- 21 Wall. 389, 392, 395, 397, 398, 22 L. ed. fense unless the defendant had knowledge of 619, 620, 621, 622, in which the circumthe position. However, as the appeal at bar stances were even more extreme than any is in admiralty, it is not necessary for us to which could be deduced from Davies v. follow the intricacies of Davies v. Mann and Mann because in Davies v. Mann the object its history. We do not know that Davies v. unlawfully left in the public highway was a Mann, or any decisions of its kin, was ever donkey, only temporarily there, the presence cited in a maritime court. Attempts have of which might or might not be presumed to been made in England to apply this class of be known to travelers. In Atlee v. Northcases in admiralty, with contradictory and western Packet Co. the object unlawfully in unsatisfactory results. Marsden's Colli- the public highway—that is, in the riversions at Sea, 5th ed. pp. 16–22. Certain it was a pier of a permanent character, existis that there are decisions of the highest au-ing for so long a time that the court found thority in admiralty directly impugning that a skilful pilot was bound to know of it; Tuff v. Warman, and dividing the damages and yet Atlee, who constructed and mainunder the same substantial circumstances as tained the pier, as well as the steamer colthose of that case, and disregarding any ap- liding with it, were both held liable, and the plication of Davies v. Mann.

damages were apportioned equally between In the circuit court of appeals in the sec- them. A more positive case is Cushing v. ond circuit we find The James D. Leary, ap- The John Fraser (The James Gray v. The pearing in the district court in 110 Fed. John Fraser) 21 How. 184, 191, 16 L. ed. 685, and affirmed in 51 C. C. A. 620, 113106, 109, where the collision was with a vesFed. 1019, on the opinion of the district sel anchored in an improper place, without court. Both vessels involved were steamers, any light; but the other vessel was held in -The James D. Leary and The Evelyn. The fault for not sighting her, and damages were Evelyn was found at fault for coming to an equally divided. In every one of these cases chor east of the proper anchorage ground, as the circumstances were known to the party marked by buoys, but her anchor light was who was guilty of the final negligent act. A visible to the Leary from one to two miles. multitude of other admiralty decisions to The damages were divided. There is no mis- the same effect can be cited. Indeed, some of taking that this decision absolutely disre. them go so far as to make it clear that the garded any rule found in Tuff v. Warman or law of these tribunals is not strict with refin Davies v. Mann, although all the substan- erence even to subsequent, and somewhat intial circumstances were alike. The same dependent, disconnected negligences, as is must be said about The Providence, decided the common law. In view of these proposiby this court, and reported in 38 C. C. A. tions and decisions, we are not justified in 670, 98 Fed. 133, where a large Sound applying in an admiralty case any peculiar steamer coming into Fall river, was in col- rule which can be deduced, or ever has been

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