Leonard v. Board of Engineers , 10 Ala. 52 ( 1846 )

ORMOND, J.

The statute, (Clay’s Dig. 138, $ 10, 11,) upon which this action is founded, was designed to insure the presence of a competent engineer, for the management of the engines of steam boats, and we think it is clearly the meaning of the act, that every boat should have on board during a voyage, a first, or principal engineer, certified as such by the board of engineers. The distinction made in the statute, between first, and second engineers, by the 13th section, is without meaning or object, unless this construction is put upon it, as the design of the act was not to furnish a scale by which the wages of these persons was to be graduated, but to ascertain their qualifications, by an examination by the board of engineers, and thus to secure the public against damage from incompetent engineers. The act, however, does imply, that if a first engineer is employed, his assistant may be of inferior qualifications, but under his supervision, capable of aiding in the management of the engine.

The penalty is incurred by the Captain, or owner, of the boat, and whoever is in command of the boat, when the law is violated, is liable as-Captain. The defendant, it appears, was the master of the boat, employed by the owners, and engaged one Walker, to take the command of the boat for the trip to Montgomery, and back to Mobile, and it was during this period, that the liability was incurred. This is a penalty incurred for the violation of a statute, and we are clear in the opinion, that no one can be subject to it, unless he is in fact the master of the boat, at the time the penalty is alledged to have been incurred. Walker was to all intents the Captain of the boat, during this voyage, having the char ge of the vessel, and in that capacity, having power to charge those engaged in running the boat by his acts, as such ; much more must he be considered as the Captain of the boat, so as to be subject to this penalty, which is for the violation of a duty, imposed upon him as an individual. The public have no means of knowing who is the master of the boat, but by the fact that one assumes the command of it, and cannot know the secret engagements of the parties. Whoever therefore, in fact commands the boat during a voyage, when a penalty is incurred by this act, is the proper person to be sued.

It is not necessary to incur a forfeiture under this act, that the meditated voyage should be actually performed. It is sufficient if it be commenced, and- the boat be actually run without a licensed engineer on board, employed to manage the engine. The penalty it is true, is for each voyage so made, but that was only intended to guard against the recovery of more than one penalty for a voyage, or trip. The danger to those in the boat, from the want of the necessary skill in the engineer, was the object the statute had in view, and that begins when the voyage commences, and is as perilous to those who travel a part of the way, as to those who go the entire voyage. Besides, the want of skill in the engineer might be the cause of breaking up the voyage, and preventing its termination.

We have said, there must be a licensed engineer on board, -employed to manage the vessel, at the commencement of the voyage ; should he be disabled frem attending to his duties during the trip, we think it would be a sufficient reason for permitting the second engineer to manage the vessel; but When, as in this case, the principal engineer was taken sick before the commencement of the voyage, it was the duty of the master to supply his place.

Let the judgment be reversed and the cause remanded.