John Spry Lumber Co. v. The Steam-barge C. H. Green , 76 Mich. 320 ( 1889 )

Champlin, J.

This proceeding was commenced in the court below under chapter 385 of Howell’s Statutes, entitled “ Collection of Demands against Water-craft,” to enforce a lien claimed to be created by the statute against the steam-barge C. H. Green for damages for a tort alleged to have-been committed by the steam-barge in running into and breaking a boom of pine logs belonging to complainant, which boom was at the time in St. Mary’s .river, causing damage to the John Spry Lumber Company to the amount of $15,000, which damages, it was alleged, were occasioned solely by the negligence, misconduct, unskillfulness, and carelessness of the master and persons navigating said steam-barge C. H, Green,- and not by or through the fault, negligence, or misconduct t>n the part of said John Spry Lumber Company, its agents or employés.

Upon the complaint a warrant was issued against the steam-barge, as provided by section 4 of the act, by virtue of which the sheriff was commanded to seize the steam-barge, her tackle, apparel, etc., to—

“ Answer any and all liens there shall be established against it, according to law, and to detain the same in custody until the further order of the court.”

Under this warrant the vessel was seized and held until, having been bonded under sections 14 and 15, she was released under a writ of restitution pursuant to section 17. There was also a summons issued under section 10 of the act, which was served upon the master of the vessel.

Answer was filed, denying the jurisdiction of the court. It also denied any collision with a boom, as alleged; averred that if any collision occurred it was with a raft of saw-logs which the complainant left negligently and carelessly afloat in the navigable waters of the river, in an exposed condition, and was not within any boom belonging to said complainant, and was not within the lines of any dock owned by complainant ; but, on the contrary, said raft of logs with which said eteam-barge came in contact, if any collision occurred, was afloat and adrift a great distance, to wit, 100 feet, from the dock of the complainant, out in the navigable waters of St. Mary’s river, and that, had said raft of logs or timber been near to, or within the boom limits of, complainant’s said dock, 110 damage of any kind would have been caused either to said logs or timber of said complainant.

At the trial in the court below, after the testimony was dosed, respondents moved to dismiss the complaint and proceedings thereunder for want of jurisdiction. This motion was denied, and a decree was rendered in favor of the complainant for $3,500, with costs, from which decree respondents appealed.

Since the cause came into this Court both sides have taken additional testimony.¹ It appears from the testimony that •on October 3, 188?, the propeller C. H. Green, laden with 1,165 tons of iron ore, a vessel off the United States, enrolled ,and licensed for the coasting-trade, and engaged in the business of commerce and navigation between ports of different states, being properly officered and manned, and being in all respects seaworthy and fit for the voyage which she had ¡undertaken, was bound from Marquette, Michigan, to Ashtabula, Ohio. She is a vessel of 72! tons. Her draft was from 15 to 15-J feet. She had in tow the schooners or barges Eosa-Sonsmith, drawing 14 feet, 8 inches, and the Mattie Bell, •drawing 14 feet, 10 inches, attached by lines astern, in the usual manner. The cargo of each schooner was about 1,300 tons of iron ore. The entire length of the tow was about 1,560 feet.

She reached the ship canal at the Sault Ste. Marie about two o’clock in the morning of October 3. The canal was •crowded with vessels. Asevere storm commenced'early in' the day, and continued until night. The wind was from the north-west, and at the United States signal station it registered a velocity of from 40 to 59 miles an hour. In the river below the lock’ the wind was described as a stiff breeze, but not of the velocity indicated by the signal service. By reason cf the difficulty in navigating the St. Mary’s river below the locks, it was not usual to proceed down the river at night, and vessels bound down usually laid up until morning.

The Green and. her tow were locked through the canal about 6 o’clock P. M., and passed down the river opposite the John Spry Lumber Company’s dock, and rounded to; and, after her tow had come about, and was strengthened and headed up stream, the head barge or schooner Sonsmith dropped her anchor, the Green intending to drop alongside and make fast to her, as is usually done under such circumstances, the stern schooner still holding onto her line with the Sonsmith.

The place where the anchor was dropped was about 600-feet from, and nearly opposite to, the dock of the John Spry Lumber Company. This dock is 749 feet in length, and extends into the water of the river about 450 feet from the shore line, and from 1,000 to 1,500 feet from the steam-boat-channel iáíthe middle of the river. The dock was constructed of wooden piles, which were driven into the bed of the river in rows, forming the water-front of the wharf. Upon these rows of piles rested timbers, which formed a cap for the piles, and this cap was bolted into the head of the-piles by iron drift-bolts, so that the front row of the piles-was connected with the second row, driven several feet back or inside of the outer row. Upon the caps running from the-front to the back row of piles was placed a long timber, which extended along the face of the front of the dock, resting upon the caps. This was bolted with iron bolts to the caps over the piles, so that the outer row of thé piles was-held in place and in an upright position by the cap and stringer. The cap timber prevented the piles from being shoved inward or pulled outward, and the top timber stayed them, and prevented them from being moved from one side-to the other.

Along the face of the dock, and fastened to the front row, and near the edge of the water, was a stringer or guard-rail. This was formed of round pieces of timber, from 8 to 12 inches in diameter, and firmly drift-bolted into each pile, and projecting out beyond the face of the dock.

The booming grounds of complainant were between the-dock and the shore, and extended east several hundred feet, and were formed by several clumps of piles, six or seven in number, being driven at intervals on a line with the outer line of the dock, and from the eastern extremity to the shore. This portion of the boom is called the “ store-boom,” and -that portion between the dock and the shore is called the “ mill-boom,” from which the logs are supplied to the company’s saw-mill upon the shore. The boom timbers which inclosed the store-boom were not permanently fastened to the piles, but were so arranged that they could be removed at pleasure.

At the lower or eastern end of the store-boom a clump of piles were driven about fifty feet from the shore, and a boom-stick was fastened to these piles, extending to the shore. The logs were brought to the store-boom in what are called sack or bag rafts. These rafts are balloon-shaped, and are formed by inclosing loose logs with boom-sticks, and in that shape are transported by being towed by tugs to the desired place.

The accident occurred on Monday, the third day of October. On the Saturday preceding, a sack raft containing ■about one and one-half million feet of saw-logs was brought up from the booming grounds below the store-boom, a distance of about one-third of a mile, and made fast to the Becond clump of piles of the store-boom below or east of the flock, and was permitted to remain moored to these piles until Monday morning. At this time there were no boom-sticks connecting or fastened to the several clumps of piles of the store-boom, except the one before mentioned from the shore to the first clump at the foot of the store-boom. The •sack raft lay outside of the line of piles of the store-boom, and extended a considerable distance below it.

On Monday morning Capt. Long of the tug Lark went to the lower end of the raft, and pushed it around towards the shore, and made the boom-stick inclosing it fast to the clump of piles nearest the shore. He then cut the inner boom-sticks on the raft next to the lower end of the boom, so as to permit the logs to escape and float into the store-boom. He then made fast his tug to the upper end of the raft, let loose from the piles where it was moored, and drew the outer boora-sticks which inclosed the logs np the river, thus forcing the logs into the store-boom. He made the boom-sticks fast to a pile in the front side of the dock at about four o’clock iu the afternoon. The fastening of the boom to this pile was-not intended to be permanent, but as the logs were passed into the mill-boom and sawed, and room thus made at the upper end of the boom, this upper end of this boom-stick would be towed further up and made fast again, thus forcing more logs into the store-boom and retaining them there.

The condition' of the boom at the time of the collision was as follows: The upper end of the boom timber was fastened by a chain to piles in the dock, and the boom timbers thence extended down' the river outside of the piles driven to make the store-boom, and extending further out into the river as the line proceeded east, and passing around the east end a distance of some 30 feet from the piles driven for the store-boom.

The C. H. Green, after her tow had anchored, started towards the dock with her tow-line still fast to the Sonsmith. The wind was blowing down the river, and she struck the boom-stick, where it was about 20 feet from the dock, with such force that one of the piles to which it was fastened was-torn out entirely, and another was pulled over so that the chain slipped off, thus releasing the boom-sticks, which floated down the river, and permitted the logs to escape-The structure formed by the boom timbers, it will be seen, did not, at the time of the collision, form a raft, but had been changed into a boom, in which the logs were held for storage.

The first question to be determined is whether, under the facts above stated, this was a maritime tort, over which the federal courts alone have jurisdiction. Locality, by all the authorities, .is the test in cases of tort by which to determine whether the wrongful act is one of admiralty cognizance. The Commerce, 1 Black, 579; Leathers v. Blessing, 105 U. S. 626; The Plymouth, 3 Wall. 36; Railroad Co. v. Tow-boat Co., 23 How. 209; Rock Island Bridge, 6 Wall. 213.

It was said in the case of The Commerce, 1 Black, 580:

“ Whether a wrongful act, committed upon the person or property of another, was of a character to be denominated a marine tort, and consequently to be regarded as the proper foundation of a suit cognizable in the admiralty, undoubtedly depends upon the locality where the wrongful act was committed, as already explained. But marine torts are in the nature of trespasses upon the person or upon personal property, and they may be prosecuted in personam in any district where the offending party resides, or in rem where-ever the offending thing is found to be within the jurisdiction of' the court.”

And the case of Railroad Co. v. Tow-boat Co., 23 How. 209, is authority, holding that the definition of the term “torts,” when used in reference to admiralty jurisdiction, is not confined to wrongs or injuries committed by direct force, but that it includes, also, wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by an action on the case.

The contention of the complainant in this Court is that the trespass committed was upon its real estate, and consisted in breaking its dock, and pulling out the piles that supported it, thus causing the chain which held the boom to become loosed, and that the loss of the logs was the direct result of this injury to its real estate.

Counsel for complainant cite and rely upon the case of Johnson v. Elevator Co., 119 U. S. 388 (7 Sup. Ct. Rep. 251), as decisive of the point taken against the jurisdiction of the court. That case arose under a statute of the state of Illinois quite similar to our own, for an injury done to an elevator by a vessel in navigating the Chicago river. The> jib-boom of the vessel penetrated the wall of the elevator, whereby a large quantity of corn stored therein ran out and was lost in the river. The position was taken that the federal court in admiralty alone had jurisdiction of a tort of that kind. Mr. Justice Blatchford, speaking for the Court, ■said:

“Under the decisions of this Court in The Plymouth, 3 Wall. 20, and in Ex parte Insurance Co., 118 U. S. 610 (7 Sup. Ct. Rep. 25), at the present term, it must be held that the cause of'action in this case was not a maritime tort of which a district court of the United States, as a court of admiralty, would have jurisdiction; and that the remedy ■belonged wholly to a court of common law, the substance and consummation of the wrong having taken place on land, and not on navigable water, and the cause of action not having been complete on such water. This being so, no reason ■exists why the remedy for the wrong should not be pursued in the state court, according to the statutory method prescribed by the law of the state, even though that law gives a lien on the vessel. The cases in which state statutes have been held void by this Court, to the extent in which they authorized suits in rem against vessels, because they gave to the state courts admiralty jurisdiction, were only cases where the causes of action were cognizable in the admiralty. Necessarily no other cases could be embraced. The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 555; The Belfast, 7 Wall. 624.”

After reviewing the petition, and showing that the proceedings were really in personam, he says:

“ There being no lien on the tug, by the maritime law, for the injury on land inflicted in this case, the state could create such a lien therefor as it deemed expedient, and could enact reasonable rules for its enforcement, not amounting to a regulation of commerce.”

Our statute provides that upon filing the complaint the ■clerk of the court shall issue a warrant to the sheriff of the county under the seal of the court, returnable not less than 14 nor more than 30 days from its date, containing a brief ■statement of the claim filed, commanding him to seize and safely keep such water-craft, her tackle, apparel, and furniture, to answer all such liens as shall be established against it according to law, and to make return of his proceedings under such warrant within 10 days after seizure; and the clerk is also required to issue a summons to the owner or master of such craft, containing a similar statement, and returnable, as aforesaid, at the same time as'the warrant, which said warrant and summons shall be served at least 14 days before the return-day thereof.

The statute also provides for notice, and for intervening creditors, and also for the bonding of the vessel by the master or any person interested at any time before judgment or decree of sale; and in case the bond is executed, a writ of restitution is to be issued, and the vessel is thenceforth discharged from all liens. If judgment or decree passes for complainant after the vessel is discharged, it is to be entered against the principal and sureties in the bond, but in no case shall the judgment exceed the penalty of the bond; and it is provided—

“ That the subsequent proceedings shall be the same as now provided by law in personal actions in the circuit courts.”

In all these respects our statute is substantially the same ns that of the state of Illinois. The vessel having been bonded, the lien is discharged, and the proceedings are in personam.

The case at bar is not an exact parallel with that of Johnson v. Elevator Co. The trespass in the latter case was beyond question an injury to real estate. Here the injury complained of was to the boom, and the question is presented whether the boom was real estate at the time of the injury. The point involved is one of considerable doubt. In solving it we must look to the surrounding circumstances, the situation, and use to which the real estate was applied. The complainant was the owner of a saw-mill, with all the necessary outfit and appurtenances for the manufacture of saw-logs into lumber.

The testimony shows that the logs which were to be manufactured at the mill were put into the booms, as above described, and it is clear to any person that the operations of the mill could not be carried on without the use of these booms in which to store and hold the logs. The dock upon which the lumber was piled, and from which it was shipped to market, was also necessary to the operation of the saw-mill. Had the John Spry Lumber Company made a general grant of this saw-mill, the dock and booms used in the operation of the mill would have passed to the grantee, under the ancient and well-recognized rule that, where the grant is a general one, whatever belongs to the thing granted, as a constituent part or element, passes thereby. 1 Shep. Touch. 96.

And in Farrar v. Stackpole, 6 Me. 154, it was held that the grant of a saw-mill with privileges and appurtenances passes the machinery used in it, and would include a mill-chain, dogs, and bars, therein, by which the logs are drawn therein and secured for sawing; and generally whatever things are fitted and prepared to be used with real estate, and have been applied thereto, pass with the realty to which they have thus become accessory. So in the case of The City of Erie v. Canfield, 27 Mich. 479, where the brig collided with a boom located in the navigable waters of the Manistee river, whereby the boom was broken, and the saw logs therein were released, scattered, and damaged and lost, the question of jurisdiction was raised in a proceeding under this act. This Court held that the tort consisted in an injury to a structure which pertained to the adjacent land just as much as a wharf or a building erected thereon would have done, and a wrongful injury to it would not be a marine injury, and could not be redressed in a court of admiralty.

In People’s Ice Co. v. The Excelsior, 43 Mich. 336 (5 N. W. Rep. 398), which was a proceeding under this law, the injury complained of was the destruction of the ice formed on the premises of complainant within its boom at Belle Isle. No injury was done to the boom, but the damage was done by running the vessel rapidly up and down the Detroit river close to the boom, so that the swell thereby created broke up the ice field. Here the subject injured was floating upon the water, and the Court held that the complaint set up a cause of damage very clearly within the statute.

In applying the test of jurisdiction, namely, the locality of the tort, we must ascertain the locality of the thing injured,- and not of the offending instrument by which the injury is done.

The facts of this case locate the thing injured as a boom inclosing about one and one-half million feet of saw-logs, attached at both ends to the realty, and, in itself, considering its nature and use at the time of the injury, a part of the real estate to which it was attached. A boom consists not only of the timbers by which the commodity boomed is inclosed, but also of the piers, piles, or other thing by which it is held in place. The piles to which the boom-stick was secured at the eastern extremity were a part of the boom, as also were the piles in the dock to which the other extremity of the boom-stick was fastened. It cannot be questioned that these piles were real estate, and that the injury to them, if wrongfully done, would constitute a trespass upon real property. The proof is conclusive that the part of the boom consisting of the piles to which the chain was attached was wrenched from its position, one pile pulled entirely out, and the other over, and in consequence the boom became broken and the logs escaped, being carried down the river by the force o.f the current.

Under the facts of this case, and the decisions above refer? red to, we must hold that the circuit court had jurisdiction.

The next question to be determined is whether, the damages arising from the injuries done occurred through the negligence or misconduct of the master of the vessel. Upon this question the testimony is conflicting, and additional testimony has been taken since the case was decided in the court below. The John Spry Lumber Company’s dock was not a public dock, although vessels frequently stopped there for passengers and freight. The dock, however, was mainly used for shipping lumber manufactured at the sawmill, and was frequently used to moor rafts of logs to, which were to be sawed at the mill. There was plenty of navigable water in front of the dock, and between it and the Canada side of the river, and the boom, as it existed at the time of the collision, was not an impediment to the navigation of the river, and extended no further out into the river than was reasonable under the circumstances, and must be held to have been rightfully there.

It is claimed by the owners of the C. H. Green that, after the leading tow, which was the Sonsmith, had rounded to and ■dropped her anchor, the C. H. Green endeavored to drop ■down alongside the Sonsmith and make, fast to her for the night. In doing so, the tow-line was not cast off from either vessel, and the owners claim that on account of the force of the wind and the current the C. H. Green was unable to accomplish her object; that the wind and current were' on her starboard bow, and, both being too strong for her to overcome, the head of the propeller was by reason thereof ■swung to the port or towards the dock, in such manner as to make it necessary for her to start ahead; that this was done with her wheel hard aport; that after straightening up as much as possible she again attempted to back down alongside the Sonsmith, but the wind and current, still being on her starboard bow, were so strong that she sagged against the raft which lay alongside the dock, and that it was impossible for her to avoid coming in contact with the raft; that the angle at which she headed towards the dock was about 45 degrees.

All that the law requires of the master is the exercise of • ordinary care and ordinary skill under iñie circumstances, and the burden of proof of showing the failure to exercise ordinary care and skill is upon the party alleging it. The prepondéranos of the evidence shows that it was not yet dark when the C. H. Green approached the dock; that both the-dock and boom of logs could be plainly seen from the propeller.

The particular negligence and failure to exercise ordinary-skill, as shown by the testimony and relied upon by complainant, is in bringing his tow around too near to the dock of complainant, being within three lengths of the propeller from the dock; that the master had determined before leaving the canal lock to round to, and fasten to the Sonsmith for the night, and, having determined upon this, and knowing the unusual force of the wind and of the current, he should have kept more to the Canadian shore, in order to have-plenty of sea-room to bring the tows around, and permit the-propeller to back down in safety; that he might, under the circumstances, expect to encounter difficulty from the unusual force of the wind, and should have acted accordingly, but,, instead of exercising due caution in this regard, he brought-his tow to anchor within 600 feet of complainant’s dock, and experienced the difficulty which he ought to have anticipated.

But the greatest negligence shown by the testimony consisted of this: After he found himself in the situation described by himself, with his wheel hard aport, and the-power of his rudder overcome by the wind and current upon his starboard bow, swinging the propeller down the river, he-still held onto the tow-line, which was 400 feet long, and nearly three inches in diameter, which slacked into the water, and operated as an efficient aid to the wind and current in overcoming the effect of the propeller’s rudder. The Sonsmith being anchored abreast of the lower part of the dock, the propeller, when she backed down, was opposite, or nearly so, the upper end of the boom, and as she swung, and was carried down somewhat by the current and wind, must have approached the dock at nearly right angles.

It could not well be otherwise than that, as the propeller backed down opposite the Sonsmith, this 400 feet of tow-line, resting, in a great measure, upon the bottom of the river, would operate to hoid the stern of the propeller up against the wind and current, and prevent her from being maneuvered so as to bring her stern into the wind with the same facility as she could have been had the tow-line been cut off. No considerations of convenience in starting in the morning should have been permitted to influence the master of the propeller to hold on to the tow-line under the circumstances in which he was placed. We think he did not exercise that ordinary care and skill which was required of him by the circumstances in which he was placed.

Upon the question of damages we see no reason from the testimony to disturb the judgment of the court below, and the judgment will be affirmed, with costs.

The other Justices concurred.

1 Act No. 151, Laws of 1887, gives the Supreme Court, power, at any time, to call upon the parties to any suit in law or equity, or any witnesses thereto, to testify orally in open court, etc.