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THORP V. HAMMOND, 79 U. S. 408 (1870)

U.S. Supreme Court

Thorp v. Hammond, 79 U.S. 12 Wall. 408 408 (1870)

Thorp v. Hammond

79 U.S. (12 Wall.) 408


1. When a vessel is sailing in close proximity to other vessels, the fact that her hands are engaged in reefing her mainsail is no sufficient excuse for failure to keep a lookout or to take such precautions as are needful to avoid collisions.

2. One of several general owners who sails a vessel on shares, under an arrangement between himself and the other owners whereby he in effect has become the charterer, hiring his own crew, paying and victual ling them, paying half the port charges, retaining half the net freight after the port charges are taken out, and paying the other half to the general owners, is to be considered the owner "pro hac vice," and as such is liable personally for a tortious collision with another vessel.

3. Though sued jointly with the other general owners in a libel which does not describe him as owner pro hac vice, a decree may be made against him alone.

By an Act of Congress of March 3, 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

Page 79 U. S. 409

shares, hiring, paying, and victual ling 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

Page 79 U. S. 410

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. 79 U. S. 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 lookout 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

Page 79 U. S. 411

of the respondents," claimed $12,000 damages, as the value of the Brothers.

The owners of the Huntley set up as defense:

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 3, 1851, alone responsible for the catastrophe.

II. That the entire value of the Huntley did not exceed $5,000, 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, victualed, and navigated her at his own expense, he was to be deemed a charterer within the meaning of the act of Congress of March 3, 1851, which exempted the owners from personal liability. And that as Hammond, the captain,

Page 79 U. S. 412

was sued merely as a part owner, and not as the charterer, wrongdoer, 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.

Page 79 U. S. 413

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