PANAMA R. CO. v. NAPIER SHIPPING CO.

The main question in this case is one of fact, and turns upon the point whether the accident to the Stroma was caused by the negligence of the respondent, or that of the libelant.

1. It is claimed that, upon this hearing, we are limited to the question of damages, for the reason that the writ of certiorari was issued after the decrees of the district and circuit courts dismissing the libel upon the merits had been reversed, the case remanded to the circuit court to assess the damages, a final decree of the circuit court for $38,861.86, and a second appeal to the court of appeals, which had pronounced an opinion affirming the decree of the circuit court, although no formal decree seems to have been entered at the time the writ of certiorari was issued. While this writ begins with a recital that 'there is now pending' in the circuit court of appeals 'a suit in which,' etc., we think it is giving it too narrow a construction to hold that it was intended to bring before this court only the question of damages, then pending before the circuit court of appeals, particularly in view of the fact that the petition for the writ of certiorari set forth the facts of the case, and claimed that upon those facts the libel should have been dismissed, making no claim whatever that error had been committed in the assessment of damages. A difference of opinion existed in the court below upon the question of liability, and the writ was granted to review the whole case as on appeal from the second decree of the circuit court, which was contrary to its first decree, and was entered in obedience to the direction of the court of appeals.

If, under such circumstances, this court were powerless to examine the whole case upon certiorari, we should then be compelled to issue it before final decree, whereas, as was recently said in the case of The Conqueror, 17 Sup. Ct. 510, it is and generally should be issued only after a final decree. The case of The Lady Pike, 96 U. S. 461, is not in point. In that case there had been an appeal from a decree dismissing the libel, which was reversed by this court, and the cause remanded for an assessment of damages. A second appeal was taken from such assessment, and it was held that the re-examination of the case could not extend to anything decided here upon the first appeal. So, in Ames v. Quimby, 106 U. S. 342, 1 Sup. Ct. 116, it was held that after a new trial had been had, pursuant to the mandate of this court, and a second judgment rendered, no errors other than those committed after the mandate was received below can be considered here. To the same effect are Roberts v. Cooper, 20 How. 467; Supervisors, v. Kennicott, 94 U. S. 498; Clark v. Keith, 106 U. S. 464, 1 Sup. Ct. 568; and Chaffin v. Taylor, 116 U. S. 567, 6 Sup. Ct. 518. But, while the court of appeals may have been limited on the second appeal to questions arising upon on the amount of damages, no such limitation applies to this court, when, in the exercise of its supervisory jurisdiction, it issues a writ of certiorari to bring up the whole record. Upon such writ the entire case is before us for examination.

2. There is no difficulty about the jurisdiction of a court of admiralty in this case. So far as concerns the subject-matter of the libel, it is covered by the case of Philadelphia, etc., R. Co. v. Philadelphia, etc., Towboat Co., 23 How. 209, in which it was held that that jurisdiction of a court of admiralty extended to an injury received by a vessel by running upon certain piles which had been negligently left in the bed of the Susquehannah river at Havre de Grace. See, also, Atlee v. Packet Co., 21 Wall. 389, and 2 Brown, Civ. & Adm. Law, 203.

The fact that the cause of action arose in the waters of a foreign port is immaterial. While in some cases it is said that a court of admiralty had jurisdiction of all torts arising upon the high seas, or upon the navigable waters of the United States (The Commerce, 1 Black, 574; Holmes v. Railroad Co., 5 Fed. 77; The Clatsop Chief, 8 Fed. 167), the connection in which those words are found indicate that they were not used restrictively; and the law is entirely well settled both in England and in ths country that torts originating within the waters of a foreign power may be the subject of a suit in a domestic court. The authorities upon this subject are fully reviewed in an exhaustive opinion by the late Judge Emmons in the case of The Avon, Brown, Adm. 170, Fed. Cas. No. 680, wherein jurisdiction was taken of a collision occurring upon the Welland Canal, in Canada. To the same effect are Smith v. Condry, 1 How. 28; The Ticonderoga, Swab. 215; The Griefswald, Id. 430; The Diana, Lush. 539; The Courier, Id. 451; The Halley, L. R. 2 Adm. & Ecc. 3, L. R. 2 P. C. 193; The Mali Ivo, L. R. 2 Adm. & Ecc. 356; The M. Moxham, 1 Prob. Div. 43, 107.

Indeed, large numbers of collisions arise upon the Canadian side of the St. Clair, Detroit, and St. Lawrence rivers, which would not be cognizable in our courts, if the general proposition claimed by the appellant were true, since, by the treaty between this country and Great Britain, the boundary line is located in or near the center of the river.

Had both parties to the libel been foreigners, it might have been within the discretion of the court to decline jurisdiction of the case, though the better opinion is that, even under those circumstances, the court will take cognizance of torts to which both parties are foreigners; at least in the absence of a protest from a foreign consul. The Maggie Hammond, 9 Wall. 435; The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860; The Courier, Lush. 541; The Havana, 1 Spr. 402, Fed. Cas. No. 6,226; The Invincible, 2 Gall. 29, Fed. Cas. No. 7,054; The Johann Frederick, 1 W. Rob. Adm. 35; The Charkieh, L. R. 4 Adm. & Ecc. 120; The Vivar, 2 Prob. Div. 29; The Anne Johanne, 2 Stu. Adm. 43; Thomassen v. Whitwell, 9 Ben. 113, Fed. Cas. No. 13,928; Chubb v. Packet Co., 39 Fed. 431.

3. Was there any negligence on the part of the respondent, or, to state it more accurately, was there any negligence with respect to the libelant, or of which it was entitled to complain?

The owners of the Stroma were represented at Colon by one Andrews, who was acting as the agent for William Warriner, the regular agent of the West India & Pacific Steamship Company, and the consignee at Colon of the Stroma. Learning that the steamer was about to arrive, Andrews wrote to Mr. Abello, the harbor master of the port, and the freight agent of the Panama Company, asking him that a berth be assigned to the Stroma, which was expected to arrive in a day or two. In reply, Mr. Abello came to him in person, and, as Abello says, told him the West Indian, also expected, could go to No. 1 wharf, but that he had no berth for the Stroma. Mr. Andrews suggested to him that the seaward end of the north side of No. 2 wharf might be a suitable place, and Abello assented to his putting her there. Andrews admits that he had seen the dredge sink in the slip, put claims that, 'at the time it sunk, it was lying close to No. 1 wharf, to which it had been moored,' the distance between the two wharves being about 150 feet. As his office was opposite Abello's, and but a short distance from the dock, he must have known that a diver had been engaged in the work of raising the sunken dredge, although he testifies that he could not say that he saw the diver at work, and did not remember being informed that the dredge was broken into pieces, which were scattered about in several places in the slip. He could hardly have failed to observe that no vessel had been moored on that side of the slip since the dredge snak. He denies that the had seen any of the buoys which had been placed to mark the position of the sunken dredge, and says that he took it for granted that the railroad company, having had a diver at work on the sunken dredge for several days, knew whether this berth was safe or not; that he relied upon their knowledge for a safe berth, and supposed that the wreck was on the north side of the slip, where he saw the dredge sink. It appears, however, that operations for raising the wreck had been progressing for about three weeks prior to the arrival of the Stroma.

The steamer arrived at about 8 o'clock in the morning of December 31st, was met by a boat sent out by the agent of the company to direct her to the dock, and was ordered by the man in charge to go to pier No. 2, and find a berth on the north side of the wharf. As the steamer approached, the company's flag was displayed from the corner of the wharf, indicating the position she should take. As she neared the wharf, Andrews spoke to the officer in charge, reminding him of the dredge being there, pointing him in the direction, and then called out to the captain, 'Hug in close to the wharf, and you will clear the wreck.' The testimony of the supercargo of the Stroma was that, as the steamer swung along parallel with the pier, Andrews called out to the captain 'to be very careful in backing up the dock, and not permit the stern of the ship to swing out into the dock, as there was a sunken dredge somewhere up the dock that it might run foul of'; and that similar instructions were given by Mr. Commager, an employ e of the railroad company, who was standing on the dock awaiting her arrival.

This testimony is corroborated by Commager himself, who swears that, when he went down to meet the steamer, he reminded Andrews of the danger, saying, 'I suppose you have not forgotten about that dredge,' pointing out its position, and that Andrews did not answer him, but spoke to some officer of the boat, calling out and reminding him of the dredge being there. This testimony is also corroborated by that of the witness Muller, also an employ e of the railroad company, who heard the conversation with Commager. It would appear that at this time the buoys whihc had been placed to mark the position of the wreck were still visible; at least four witnesses swore to that effect, and there was practically nothing to contradict them. But, as they do not seem to have been at all conspicuous, we do not think that negligence can be imputed to any one for not observing them.

Had the respondent undertaken, through its agent, to provide a berth for the Stroma, and see that she was properly moored, it would probably have been responsible for this accident; but it appears that Abello, the company's agent, on being appplied to for a berth, merely assented to a suggestion made by Andrews, that the Stroma was a small steamer, and that he could very easily put her on the north side of No. 2 pier, on the other side of the obstruction (meaning thereby the seaward end of the wharf), to which Andrews replied that, 'if you will do that, there will be no objection to your doing so.' He further says that, in the same interview, Andrews told him that he had seem the dredge sink; that he had been on the wharf when she had sunk in the morning; and that he had witnessed her going down. Not only had Andrews undertaken himself to bring the ship to a berth, but he admits it to have been the custom of the place for the railroad company to leave the putting of the ship at the berth entirely under the management of the agent of the ship. Under such circumstances, it is clear that Andrews, knowing that the dredge was sunk somewhere in the slip, should have made further inquiries as to its exact location, since from their conversation, and from what Abello knew of Andrews' knowledge, he had a right to assume that Andrews had informed himself of the danger of the Stroma lying there, and of the spot where the dredge was sunk; or, at least, that he would look for the buoys and ascertain for himself.

In all the cases in which wharfingers have been held for casualties of this kind, the vessel has approached the slip in ignorance of the real condition of the bottom, and the respondent has been held liable upon the theory that it was his duty to furnish a safe berth.

This test is manifestly inapplicable where the agent of the vessel is already acquainted with the danger, and assumes the responsibility of providing her with a safe berth. In this case there was no misrepresentation or concealment, and, if Abello did not point out the precise location of the dredge, it was evidently because he supposed, and had a right to suppose, that Andrews knew it already, or would make further inquiries if he deemed it necessary. It is altogether probable that both parties assumed that the Stroma, being a small steamer, drawing only 13 feet of water, when there were 22 feet of clear water above the deck of the dredge, could safely lie inside, if not immediately over, the dredge, and that both overlooked the existence of the spindle; but, if Andrews was apprised of the danger which the Stroma might incur by lying there, it is scarcely just to impose a liability upon the respondent for the consequences of the spindle, the existence of which did not appear to have been known either to Andrews or to Abello, and which, if known, neither party had considered of sufficient importance to specially provide against. It would doubtless have been more prudent for Abello to have informed Andrews fully and explicitly of the danger he was incurring, but we think that, under the circumstances, he discharged his legal obligation.

As the diver, who was sent down to locate and buoy the dredge, never discovered the spindle, owing to the extreme turbidness of the water, it is difficult to see how negligence can be imputed to the respondent for not having warned the master of the steamer specially against it. Indeed, so little appears to have been known about it that, when a consultation was called, after the accident occurred, at which Mr. Andrews and Mr. Dennis, an associate superintendent of the respondent, took part, no one of them was able to surmise what had caused the disaster, the general opinion seeming to be that the Stroma had settled upon a pile, or a piece of machinery dropped by a Spanish steamer. No one suspected that the dredge had caused the damage, until the diver and surveyors, on the following day, reported the fact. If, as we have already found, Mr. Andrews was either apprised of, or put upon inquiry as to, all the acts with regard to the location of the sunken dredge, respondent cannot be chargeable with negligence because it did not warn him specially against the spindle, since it had not been informed of its existence by the diver, who does not seem to have been guilty of any negligence in not discovering it, and for whose negligence it is at least doubtful whether respondent would have been liable.

Inasmuch as we are of opinion that the circuit court of appeals was in error in holding the respondent liable, the decree of the circuit court of July 7, 1891, must be affirmed, and the cause remanded to that court, with directions to dismiss the libel.