# Thorp v. Hammond

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United States Supreme Court
79 U.S. 408
Thorp v. Hammond
APPEAL from the Circuit Court for the Southern District of New York, in a libel in personam, for a collision between vessels at sea. The case was thus:
By an act of Congress of March 3d, 1851, it is enacted—
'Section 3. That the liability of the owners of any vessel for any loss, damage, or injury by collision, occasioned without the privity of such owners, shall in no case exceed the amount or value of the interest of such owners respectively in such vessel and her freight then pending.
'Section 5. That the charterer of any ship or vessel, in case he or they shall man, victual, and navigate such vessel at his or their own expense, shall be deemed the owner of such vessel, within the meaning of this act; and such ship or vessel, when so chartered, shall be liable in the same manner as if navigated by the owners thereof.'
With this statute in force, three schooners-the Capes, the Huntley, and the Brothers-were sailing towards New York, along the New Jersey coast, not far from Sandy Hook. There was nothing special in the ownership of the first and last named of the vessels. The Huntley, however, was owned by one S. S. Hammond and eight others as general owners, Hammond alone sailing her; he doing this on shares, hiring, paying, and victualling his own crew; paying half the port charges, retaining half the net freight afterwards, and paying to the general owners the remaining half.
The collision, which was the cause of this suit, occurred on a winter morning of 1860. All three vessels were heavily laden, and were sailing close-hauled, having the wind about north-northwest, blowing fresh and fitfully. The general direction of their courses was about the same. The vessels were near each other, the Capes in advance, and perhaps somewhat the most out toward sea, the Huntley next, and the Brothers last and nearest to the shore. After sailing thus from eight in the morning until after nine, the wind having veered more northwardly, all the schooners tacked toward the northeast, thus standing off shore. When the Huntley tacked to stand out she lowered her mainsail in
order to take in reefs, but the Capes and the Brothers continued to carry the same sail they had carried before. In consequence of this the Brothers passed the Huntley, though on the leeward side, at the distance of about one hundred yards, running at the speed of seven or eight knots, while the speed of the Huntley, carrying her foresail and jib and falling to the leeward, was only four or five. All the vessels ran on the off-shore tack some fifteen or twenty minutes, which carried them about two miles out to sea. The Capes then went about and stood in shore on her starboard tack, the Brothers following very soon after. Whether the Brothers had beaten out her tack when she thus came about was not clear upon the evidence, though the weight of testimony perhaps tended to show that she had. However this fact was, before the Brothers could gather headway after tacking, the Huntley-running freely on the off-shore tack, four or five knots an hour, foresail and jib set-ran into her, head on, striking her abaft the main rigging, and causing her to sink in about half an hour. The diagrams on p. 409 will perhaps better illustrate positions at different times.
At the time of the collision, all hands on board of the Huntley were engaged in reefing the mainsail. When the Brothers tacked to stand in shore, the Huntley was astern of her, not less than five or six hundred yards, the Huntley being slightly to the windward. There was no look-out on the Huntley; no one on board of her saw the Brothers when she tacked, or when she was in stays, or noticed her at all after her tacking until it was too late to avoid the collision. Though hailed from the Brothers, and told to keep off, no attention was given to the hail, and the evidence left no doubt that had those in charge of the Huntley been watchful, had they seen the Brothers when she went about, it would have been entirely in their power, by porting their helm, to pass under the Brothers' stern.
The owner of the Brothers (Thorp) hereupon filed a libel in the District Court of New York in personam, against Hammond and the eight others, general owners of the Huntley, averring that the Brothers had been negligently run into and sunk by the Huntley, in consequence of the mismanagement of those on board the Huntley and in charge of her. The libel, which averred nothing about the ownership of the Huntley, except that she 'was owned by and in possession of the respondents,' claimed $12,000 damages, as the value of the Brothers.
The owners of the Huntley set up as defence:
I. That they were, in fact, only her general owners, and that she was commanded, sailed, and exclusively managed by Hammond, under an agreement made between him and them; that he was to have entire control and management of her as charterer on and for his own account; that he was the owner pro hac vice at the time of the collision, and, under the act of Congress of March 3d, 1851, alone responsible for the catastrophe.
II. That the entire value of the Huntley did not exceed $5000, and that her freight was but $424.
III. That on the merits the Brothers was in fault herself.
1. In not beating out her tack.
2. In improperly turning about when the Capes turned about, whereby, with a slight variation of her helm, she could have easily passed under the stern of the Capes.
3. In that when the Brothers turned about on the inshore tack, and whose direction was across the Huntley's bow, the Brothers knew that the Huntley's crew were engaged in reefing her mainsail, by reason of which she was in a crippled condition, and that, in disregard of the rights and condition of the Huntley, the Brothers had placed herself in such a position as to render a collision inevitable. The respondents brought witnesses to show that it was a custom of the sea not to have a lookout in the daytime, and that it was the duty of all vessels to keep out of the way of a reefing vessel. But their evidence was contradicted by the libellants.
The District Court dismissed the libel. That court considered that as Hammond, a part owner, was on board, and had charge of the vessel at the time of the collision; as he had the exclusive possession and control of her, and manned, victualled, and navigated her at his own expense, he was to be deemed a charterer, within the meaning of the act of Congress, of March 3d, 1851, which exempted the owners from personal liability. And that as Hammond, the captain, was sued merely as a part owner, and not as the charterer, wrong-doer, or active cause of the disaster, and as his liability was placed, by the libel, on the same ground as that of the other owners, the suit necessarily stood or fell as to all the respondents. The court therefore thought the statute a bar to the suit in this form, and dismissed the libel. This decree being affirmed by the Circuit Court, the case was brought here on appeal.
Mr. McMahon, for the appellants:
I. As respects the effect of the act of Congress of March 3d, 1851:
1st. Hammond is not to be regarded as charterer, or owner pro hac vice; for he did not navigate the Brothers at his own expense. Earnings were divided.
2d. It is not to be tolerated, even under the act of Congress, that a person-the accredited and presumptive agent of the general owners-whether part owner or not, who navigates a vessel ostensibly as her master, shall screen his general owners from liability for torts, under pretence that he was in a position as to them that would relieve them of their general liability.
3d. In admiralty, parties who are injured by a collision have been allowed to maintain their libel in rem, and also their libel in personam, against different vessels and different persons doing the injury complained of. In these actions some defendants have been discharged, and others held liable. Our case needs less than this.
II. As to merits. The case is clear against the respondents. The alleged custom on which the defence rests is disproved, and would have been bad if proved.
Mr. R. H. Huntley, contra:
I. The libellants cannot recover, because they have sued the general owners of the colliding vessels in personam; whereas the vessel was not in their employ, was not managed or controlled by them, was not victualled or manned by them, and was not sailed by their agent, nor by a person in their employ. This is doubtless so on principles of common and admiralty law; but is made undeniably true by the act of Congress.
Although Hammond, the charterer, is made a party to the suit, yet he is so made as one of several owners, and not as charterer or special owner. He is not sued because he had charge of the vessel, or because he controlled her, but because he happened to have an interest in her as a general owner. Now as a general owner he is, under the act of Congress, not liable; and as a special owner he is not sued. No recovery can therefore be had against him in this libel.
As to the suggestion that the respondent, Hammond, should be held solely liable in this action, it is sufficient to say that the libellants have not asked that such liability be decreed in either of the courts below; no amendment has been suggested by them, and they are here upon the same pleadings on which they originally based their claim.
II. As to the merits. As we understand the evidence, the Brothers had not beaten out her tack. If this is so she was clearly the cause of the collision. She should have gone on; she would not have struck the Capes, but would have gone astern of her; neither would she have come across our bows, which she did. The Brothers was under full sail and perfectly manageable, while the Huntley was under head sails only, and was reefing. In such position she was crippled, and was to be considered and treated as a favored vessel.
No special lookout is kept in daylight on a little schooner, or while reefing. This we think our witnesses show. The helmsman and every man on deck is a lookout. The Huntley was reefing her mainsail, and this act required all her men. The Brothers knew both facts.
Mr. Justice STRONG delivered the opinion of the court.

## Notes

* ↑ The Druid. Newton. 1 W. Robinson. 399.
* ↑ Newell v. Norton and ship, 3 Wallace, 266; Smith v. The Creole and Sampson, 2 Wallace, Jr., 485.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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