LIABILITY AS BETWEEN VESSEL AND INDEPENDENT CONTRACTOR

104. The vessel is not liable for injuries caused by independent contractors, but would be for injuries caused by its lack of ordinary care in furnishing proper tackle, if the contract of loading or discharging requires it to allow the use of its tackle.

Frequently, when charterers are loading a ship, the charter party provides that the steamer is to furnish use of tackle and engines. In such case, if the stevedore is an employé, and not an independent contractor, the ship is responsible for injuries caused by lack of reasonable care in selecting suitable appliances.59

But suppose that the ship makes such a contract with the charterer to allow the use of its tackle, and the stevedore is an independent contractor, selecting his own men. Suppose that in such case, while the stevedore is working with the ship's tackle, one of his men is injured by a defect in that tackle. The ship would not then be responsible if reasonable care had been used in the selection and upkeep of its appliances, and if they were reasonably sufficient for the work for which they were designed; but the responsibility, if any, would be upon the stevedore for subjecting it to an unusual strain or for other improper use.

But the ship would be responsible for an injury due to defects arising from lack of ordinary care in the above particulars.60

The English decisions are much narrower than the American. In Heaven v. Pender, a dock company erected a

61

§ 104. 59 Elton, 83 Fed. 519, 31 C. C. A. 496.

60 Beechdene (D. C.) 121 Fed. 593; Student, 243 Fed. 807, 156 C. C. A. 319; Frazier v. Luckenbach (D. C.) 248 Fed. 1011; McDonough v. International Navigation Co. (D. C.) 249 Fed. 248; Colon, 249 Fed. 460, 161 C. C. A. 418.

61 9 Q. B. D. 302. See, also, Earl v. Lubbock, [1905] 1 K. B. 253.

staging around a ship under a contract with the shipowner. A man employed by the shipowner to paint the ship fell, in consequence of the giving way of this staging. He sued the dock company. Justices Field and Cave, of the Queen's Bench, held that there was no privity between him and the dock company, and that he could not recover. The case was taken to the Court of Appeals, where this decision was reversed, and he was allowed to recover.

But later in CALEDONIAN RY. CO. v. MULHOLLAND 2 this case was much limited, and placed on the ground that the party was impliedly invited to come on its premises by the dry dock company, and to use this staging, and that it was in its condition a trap, thus bringing the case under another well-known principle of the law of torts.

CALEDONIAN RY. CO. v. MULHOLLAND is interesting as bearing out this distinction. There a railway company contracted with a gas company to deliver coal at a certain point. Two coal cars were delivered at that point to another company, which received them for the gas company. While in charge of the second company, one of its servants was killed, owing to the fact that the brakes were out of order, and could not stop the cars. His administrator sued the first company on account of this defect in their cars, but the House of Lords held that the first company owed him no duty, and that he could not recover.

DOCTRINE OF IMPUTED NEGLIGENCE

105. Negligence on the part of a vessel is not now imputable to a person injured while on board the vessel, but who is not connected with its management or navigation.

The doctrine of imputed negligence, by which a person on one ship or vehicle, though not identified with its man62 [1898] A. C. 216.

agement or navigation, is chargeable with the negligence of his own vehicle, and cannot, in case of such negligence, proceed against the other vessel if also negligent, has been repudiated by the modern authorities. As the law now stands, a person injured on a vessel in collision can proceed against either or both as either or both are negligent.**

MISCELLANEOUS MARINE TORTS

106. Admiralty has jurisdiction of any tort on navigable waters which creates a cause of action.

A common instance of this is assault. Under admiralty rule 16 there is no remedy in rem against the ship for such assaults, but there would be against the owner if the assault was made by any of the crew within the course of his employment, and there certainly would be against the man who makes the assault.64

§ 105. 63 New York, P. & N. R. Co. v. Cooper, 85 Va. 939, 9 S. E. 321; LITTLE v. HACKETT, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652; Bernina, 13 A. C. 1; Contino v. Wilmington Steamboat Co. (D. C.) 226 Fed. 991.

§ 106. 64 Chamberlain v. Chandler, 3 Mason, 242, Fed. Cas. No. 2,575; Plummer v. Webb, 1 Ware, 69, Fed. Cas. No. 11,234; Steele v. Thacher, 1 Ware, 85, Fed. Cas. No. 13,348; Turbett v. Dunlevy, Fed. Cas. No. 14,241; Miami (D. C.) 78 Fed. 818; Id., 93 Fed. 218, 35 C. C. A. 281. Whether the master, in assaulting a person aboard ship, is acting in the course of his employment-or, in other words, whether the vessel or her owner is responsible for a willful or intentional assault-depends on the ordinary principles of the law of torts. As is well known, it was for a long time the doctrine of the courts that such an act was not within the course of the servant's employment, and that the master was not liable therefor, except in cases of carriers and innkeepers. Recent decisions have much modified this doctrine, but it is hardly within the purview of this treatise to discuss it elaborately. In the last-cited case the court held that such an assault of the master upon a stowaway aboard a ship was not within his employment, and did not render the vessel or owner liable. See, on the general subject, the recent

But, though a physical wrong done by the master of the ship is an assault, in the sense of admiralty rule 16, for which the injured party cannot proceed in rem, this principle does not apply to his dog. Accordingly, where a pilot who was rightfully on board was bitten by a dog in the cabin where he had been assigned, the court allowed him to proceed in rem against the vessel."

The right of a parent to sue for an abduction of his son is an instance of such a marine tort."

So the right of a husband to sue for injuries sustained by his wife on navigable waters.67

So a suit for the illegal seizure of a vessel.68

Until quite recently locality has been assumed by the American decisions as the sole criterion in passing upon the question whether a tort is maritime or not. But in Campbell v. H. Hackfeld & Co." the Circuit Court of Appeals for the Ninth Circuit attempted to add another qualification.

It was a suit for personal injuries by an employé of a stevedoring company against his employer for negligence during the unloading of a vessel in the port of Honolulu. No negligence of the ship or any of its crew was involved. It was decided that in order to constitute a maritime tort, it must not only occur on navigable waters, but must also

English cases of Hanson v. Waller, [1901] 1 Q. B. 390, and Sanderson v. Collins, [1904] 1 K. B. 628.

65 Lord Derby (C. C.) 17 Fed. 265. In 2 Seld. Select Pleas in Adm. (Introduction, lxxxii), in 1642, "the master of the Success sues the master of the Sunflower for injuries to Richard Child, one of his crew, by a 'certaine wilde beaste called a munkey, ape, or baboone' which he kept for his pleasure, 'or some other respect' but unchained, so that it escaped, and 'without any provocation or cause given him by the said Richard Child' seized upon and bit him severely." 66 Tillmore v. Moore (D. C.) 4 Fed. 231.

67 New York & Long Branch Steamboat Co. v. Johnson, 195 Fed.. 740, 115 C. C. A. 540, 42 L. R. A. (N. S.) 640.

63 Ex parte Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed, 1087; Carolina (D. C.) 66 Fed. 1013.

69 125 Fed. 696, 62 C. C. A. 274.

have some relation to a vessel or its owners, and that the sole fact that it occurred on the vessel did not make it maritime where the parties involved in the controversy were not parties for whom the vessel was not responsible.

This was followed in the St. David 70 without discussion of the principle involved.

But in Imbrovek v. Hamburg-American Steam Packet Co. Judge Rose, sitting in the District Court of Maryland, in a case precisely similar, sustained the jurisdiction of the court as based on locality, regardless of relationship to the vessel, and also because stevedoring was essentially maritime in character. His decision was affirmed, both by the Circuit Court of Appeals and the Supreme Court, though the latter court, while holding that stevedoring was essentially maritime, did not absolutely commit itself to the proposition that locality alone, whether connected with a ship or not, is sufficient to make a tort maritime.

The American authorities are reviewed in the different opinions in this case. But the main authority on which the judges relied in Campbell v. H. Hackfeld & Co. was the English case of Queen v. Judge.72

It was an application to a common-law court for a mandamus to compel an admiralty court to take jurisdiction of a suit against a compulsory pilot for damages due to his negligence in a collision. (In England neither vessel nor owner was then liable for the negligence of a compulsory pilot.) The court denied the writ, partly on the ground that no precedent could be found for such a suit, and partly on the ground that there were several precedents against it, saying that it made no difference whether it was a case of

70 (D. C.) 209 Fed. 985.

71 (D. C.) 190 Fed. 229; Atlantic Transport Co. v. Imbrovek, 193 Fed. 1019, 113 C. C. A. 398 (affirmed without opinion); 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157 (under name of Atlantic Transport Co. of West Virginia v. Imbrovek).

72 [1892] 1 Q. B. 273.