De Harde v. Bark Magdalena , 24 La. Ann. 267 ( 1872 )

W XL y, J.

The plaintiff sues the bark Magdalena, master and owners, for the damage done his ship, the Constantia, by a collision between it and the hark Magdalena. Citation was only served on the master; tho owners are therefore not before the court. The bark was .attacked and subsequently released on bond.

The defense is the general denial and the averment that at the time •of the collision the bark was under the control of the Harbormaster •of New Orleans, and that the damage was not occasioned by any fault, negligence or unskillfulness on the part of the officers or crew. The court rejected plaintiff’s demand and he has appealed.

The collision, it seems, occurred while the Constantia was lying at the levee, in this city, a short distance astern the Magdalena. The harbormaster began to move the Magdalena to another position when her head line parted, and her bow swinging around came in collision witli the Constantia, causing the damage complained of. This case is •similar to that of Young v. The Princess Royal, 22 An. 388, upon which the defendant relies. As was said in that case, we will remark that the State courts can not enforce an admiralty lien given by law for the recovery of damages for a maritime tort; and an attachment will not lie where the claim is for damages ex delicto.

But it was perfectly competent for the plaintiff to institute a personal action against the master and owners for whatever damage he may have suffered by the tort; and this suit may be so treated.

From the evidence we are satisfied that the damage occurred by the fault of the harbormaster, who commanded the vessel at the time, the master not being on board when the collision occurred. Whether the owners are responsible or not for tbe negligence or fault of the harbormaster which occasioned the collision, we can not in this case decide, because tho owners are not before the court. We have no difficulty, however, in deciding that the master is not responsible to the plaintiff for the damage, because he was not on board the vessel at the time of the collision. One agent ought not to be held responsible for the fault of another, although the principal or owner of the vessel may be responsible for the fault of either.

If the law at this place makes it the duty of the harbormaster to take personal command of the vessel in causing it to be moved from one position to another at the levee, it may be that the owner is responsible for the fault of the harbormaster, on the theory that the latter is his agent, selected for that purpose by the law, to which the owner voluntarily assented when he sent his vessel to this port. This question, as heiore remarked, can not be determined now, as the owners of the vessel are not before the court.

Judgment affirmed.

’ Rehearing refused.