Beers v. Board of Health ( 1883 )

The opinion of the Court was delivered by

Manning, J.

The plaintiff sues the Board of Health, and the individual members thereof, to recover $3,598 as damages for injury to a cargo of fruit caused by fumigating the vessel at the quarantine station.

The schooner came from Port Antonio, Jamaica, where she took in this cargo of bananas in March, 1878, and arrived at the quarantine station April 3d. There was no yellow fever at that Port when she left, and no disease of any kind on the schooner then, or duriug the voyage, or at her arrival. The master of the schooner had a clear bill of health. The Governor had not issued his proclamation declaring any place infected. Yellow fever has never prevailed at Port Antonio. One case only is reported there, brought from elsewhere.

On the arrival of the schooner at the quarantine station the resident physician telegraphed the President of the Board of Health for instructions. It seems he was already under orders to fumigate vessels, since lie stated to the President that the master insisted that fumigation would ruin his cargo, burning sulphur being the article used. Dr. Choppin telegraphed in reply ordering the fumigation, adding “fumes of sulphur do not injure fruit. Put carbolic acid carefully in bilge, but do not sprinkle it over fruit.”

This order was obeyed, and the fruit was blackened. The cargo, valued at $4,375, sold for $839.50

The order was made by the President of the Board without its sanction, though his action was afterwards approved by the Board, one member only dissenting, and the plaintiff contends that this makes it the act of the Board, for the consequences of which the Board and each member thereof is responsible.

We do not think this sanction of the Board retroaets, and makes them responsible for the trespass of the President. The illegal act, if it were illegal, had been already committed, and they did not make themselves co-trespassers by a subsequent approval of it.

The defendant contends that the act was not illegal, but on the contrary was authorized under the power conferred specially upon the Board by the Act of 1876, whereby authority is given it to “disinfect, fumigate, and purify any vessel from ports in which yellow fever usually prevails, or from ports where other contagious or infectious diseases are reported to exist.” Sess. Acts, p. 110. The hindrance to the application of this law is the absence of that condition, the existence , of which must form the basis aud the justification of the Board’s action. Yellow fever does not usually prevail in this Port Antonio, and no other contagious or infectious diseases were reported to exist there.

The power must therefore be derived from some other source, and we can find none unless it be in that clause of the law reorganizing the Board of Health, which authorizes it to establish quarantine stations upon any of the approaches to New Orleans, whenever in its dis-' cretion they may be necessary to protect the health of the City or the State, and to make all needful regulations for the management and police of these stations, and also provides a penalty for any master of a vessel who shall refuse to allow the quarantine officer to disinfect or fumigate his vessel. Sess. Acts 1877, Sec. 7, p. 119.

The Board had authorized its President to act in cases of emergency, and to report his action to the Board when it met. Under that authorization the President ordered the fumigation of this vessel without consulting the Board, and his action as already stated was approved. The physicians who were examined as witnesses say that yellow fever is endemic in the West India Islands, and that Jamaica is in the yellow fever zone, that is, that it is likely to appear there at any time, but there seems to be no doubt that it was not there when this schooner left. Certainly it was not at Port Antonio.

It looks like an arbitrary act to have ordered the fumigation of a vessel with a clear bill of health, coming from a port where there was and had been no sickness, before the proclamation of any port whatever as infected, and with a cargo, the marketable value of which would be destroyed by fumigation. Ignorance of the fact that it would destroy the cargo does not excuse the act, and although we feel that considerations of public policy are entitled to great weight, and the need to uphold the authorities in efforts to secure the public health presses with peculiar force upon us here, we should not be inclined to disallow a claim for damages so well founded as this is, had not the plaintiff refused to do or permit to be done what would have saved his cargo.

The health officer, on receiving Dr. Choppin’s order to fumigate the schooner, suggested to the master to unload his cargo on the customhouse wharf at the quarantine station, and offered assistance to help the crew unload. This was done because the master persisted in saying that the fruit would be ruined, and an opportunity was thus given him to avoid the injury and loss.which he apprehended. He asked who would pay for this unloading, and on being told he must pay the expense refused to do it, although he was convinced the fumigation would destroy tlie saleable quality of his caigo. There were 1,750 bunches of bananas. What time it would have taken to unload, fumigate the vessel, and reload does not appear. The actual detention was a little over six hours. The expense could not have been very considerable, but whether little or much, could have been preferred as a claim for reimbursement.

The plaintiff resists this conclusion, arguing that it was rather the duty of the defendant to cease the continuance of his wrongs than the plaintiff’s to give up acknowledged rights, citing Sutherland to that effect, and a Statute of Congress forbidding under penalty any vessel unloading before coming to the place for the discharge of cargo.

The Act of Congress might as well be held to apply to the partial discharge of cargo to lighten the ship at sea in a storm, as to a discharge for disinfection under quarantine or health laws, and the author cited continues the quotation from the Michigan Court in this wise:

“ If a man tortiously injure the roof of my dwelling, and I obstinately leave it in that condition, and having the opportunity, refuse or neglect to repair, until the furniture and bedding in the house are injured or destroyed by the rains, I cannot recover of him for this injury to my furniture and bedding, which I might have avoided by timely repairs. And if a man comes to my field where my cattle are grazing and turn them out into the street and turn his own cattle in, thus ousting me from the possession, and claiming and holding exclusive possession against me, I cannot leave my cattle to starve on the street and charge him with their full value ; * * * but I can recover only such damages as I have suffered, beyond what I might have avoided, by reasonable diligence.”

The principle which we here apply is stated succinctly by the same author thus:

u If the plaintiff omit to use his opportunities and does not reasonably exert himself to lessen the damages, which may result from the defendant’s act, he is not entitled to compensation for the injury which he might and ought to have prevented, except to the extent of proper compensation for such measures or acts of prevention as the case required and wei;e within Ms knowledge and power.” 2 Sutherland on Damages, 238. See also Levy vs. Car. Canal Co., 34 An. 180; Tardos vs. Jackson R. R. Co., not yet reported.

Judgment affirmed.