United States v. Port of Portland

HUNT, Circuit Judge

(after stating the facts as above). We must overrule appellee’s contention that jurisdiction is lacking in admiralty in personam against the port of Portland, upon the doctrine of governmental immunity for municipal acts done in furtherance of govemmentally directed duties. Under the rule of Workman v. New York, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314, followed by this court in The Thielbek, 241 Fed. 209, 154 C. C. A. 571, a municipal corporation, being suable for the negligence of its employes and the faults of its ships, is subject to the process of a court of admiralty,, and, if an attempt were made by local law to intrench upon the admiralty jurisdiction of the courts of the United States, it could not be sustained.

Libelant’s theory in pursuing a remedy in tort, not in contract, is, we think, tenable. In The John G. Stevens, 170 U. S. 113, 18 Sup. Ct. 544, 42 L. Ed. 969, the Supreme Court reviewed many conflicting decisions of the District Courts, and held that a suit by tbe owner of a tow against her tug, as the offender, to recover for an injury to the tow by the negligence of the tug, is a suit ex delicto, and not ex contractu. While the proceeding in that case was held to be one in rem, the claim by the tow against the tug for damages by collision with a third ship was regarded as standing upon the same ground as a claim of the third vessel for damages against the tug.

But the present case resolves itself within narrow bounds. The pilot had control of the movement. He was not employed by compulsion ; nor was he an employé of the port of Portland. He was placed in control by the master of the Keats, who, with a crew, remained on board, and it was the duty of the tug to obey the pilot’s directions. Of course, if the pilot gave an order which was obviously regardless of approaching danger, and the master of the tug saw, or should have seen, that execution of the order meant danger, then the tug could be held at fault for not, of her own motion, changing her course. Surrender to a clearly improper order would not relieve the tug. In re Civilta and Restless, 103 U. S. 699, 26 L. Ed. 599; The Procida (D. C.) 243 Fed. 251; The E. G. Murray (C. C. A.) 278 Fed. 895.

It would likewise be the duty of the master to advise the pilot of any facts which would assist him in the movement of the ship. The master, however, could not navigate the ship, for the very purpose of taking the pilot was to put the ship under the control of one specially informed concerning the tides, currents, channels, and other conditions of the harbor. The Tactician, Court of Appeals Cases (Eng.) 10 Ann. Cas. 378; The Duke of Manchester, 4 N. of C. E. & M. Courts, 575. It might be, too, that a tug, although an independent contractor, could be held liable for the consequences of a collision by reason of the negligence of her own servants, upon the ground that all who participate in a wrongful act, whether as principals or agents or servants, are jointly and severally liable for. the consequences. Such a case was The Express, 52 Fed. 890, 3 C. C. A. 342. But there is no averment in the libel before us which takes the case out of the general rule laid down in Sturgis v. Boyer, 24 How. 110, 16 L. Ed. 591, followed in The Edgar Baxter, Fed. Cas. No. 4,278, and In re Walsh, 136 Fed. 557, 69 C. C. A. 267, and in The Stella (C. C. A.) 278 Fed. 939, that where a tug is employed by the master or owners of the tow as the mere motive power from one point to another, and both vessels are exclusively under the control, direction, and management of a pilot not compulsorily employed by the master, fault will not be imputed to the tug, provided, always, the tug is properly equipped and seaworthy. See, also, The Clarence Blakeslee, 243 Fed. 365, 155 C. C. A. 145.

The mere fact that the tow was injured raises no presumption of fault on the part of the tug. We find no ground upon which to hold that a cause of action exists against the owner of the tug. Holding that the orders sustaining the exceptions and dismissing the libel were, correct, the decree will be affirmed.

Affirmed.