17 L.Ed. 609
1 Wall. 43
December Term, 1863
APPEAL from a decree of the Circuit Court of the United States for the Southern District of New York in a cause of collision, the case being thus:
La Tourette & Butler, appellees in the case, were owners of the schooner William Clark, and filed their libel in the District Court of the United States for that district, alleging, among other things, that on the 26th of January, 1860, the schooner of the claimants, called the Commander-in-chief, while their schooner lay safely at anchor to the north and east of Little Egg Harbor, and about a half a mile from the New Jersey shore, came down, under full sail, and ran into her, cutting her through, abreast of the main chains. The allegation was, that the William Clark sank within fifteen minutes after the collision, and the claim was for a total loss both of the vessel and the cargo. The collision occurred about ten o'clock in the evening. The libellants alleged that it was a clear, moonlight night; that their schooner was properly anchored, and had a competent watch on deck, and a bright light set in the rigging, and that the collision occurred in consequence of the negligence, mismanagement and unseamanlike conduct of those in charge of the vessel of the respondents, and without any fault on the part of those in charge of their own vessel.
The answer of the claimants, in general terms, denied the material matters alleged in the libel. A separate denial of each article was interposed, and the substance of the defence was, that the collision, if it occurred at the time and place alleged in the libel, was occasioned through the fault of the officers and crew of the vessel of the libellants; the respondents alleging, in the general terms quoted, that the vessel of the libellants 'lay in an improper manner and in an improper place, without a light or other necessary precautions, and that the collision, so far as their vessel was concerned, was unavoidable.'
Testimony was taken by both parties. It showed that the schooner of the libellants, bound from Indian River, in Delaware, to the city of New York, anchored a mile or two to the northward of Little Egg Harbor light (a place where vessels frequently sail), in consequence of the severity of the cold, and because it was blowing so heavily that those in charge of her did not deem it safe to proceed on the voyage. It was proved, however, that the anchorage was not an improper one, and that a number of vessels were anchored still further in the general track, towards the south. The master of the Commander-in-chief swore it was a moonlight night-very cold. 'There was a vapor on the water. Anything above the vapor you could see a good way; but a vessel's hull you could not see beyond a short distance. You could see a light half a mile.' He then proceeded to state some facts from which the conclusion was inferrible that there was no light: but the proofs of the other side were full that there was a light, and that it was suspended in the rigging of the injured vessel, some twelve feet above the deck; and moreover, that the mate was on deck as a lookout.
After a full hearing, an interlocutory decree was entered in favor of the libellants and the cause referred to a commissioner to ascertain and compute the amount due to the libellants for the actual damages to the vessel and cargo occasioned by the collision. The commissioner having made and returned his report, by which he gave a specific sum as the value of the vessel, and an additional specific sum as the value of the cargo, the respondents filed nine exceptions to the report, as follows:
1. 'That the commissioner allowed improper and immaterial evidence to be put in by libellant;' the exception, however, not stating what the evidence was.
2. 'That he had no evidence to justify his report;' the exception not setting forth what evidence he did have.
3. 'That he reported more than the evidence warranted;' the exception stating nothing further.
4. That he had 'failed to report the principle of the decree.'
5. That he 'admitted evidence of witnesses as to the value of the vessel on the part of the libellant, who were not competent as to that fact, and whose evidence should have been rejected;' no names of witnesses being given, nor any specification of the reasons why they were incompetent; nor what they swore to; nor why their evidence should have been rejected.
6. That he 'reported the value of the cargo as part of the damage,' when the libellant is not entitled to recover therefor.
7. That the evidence showed the vessel to be of far less value than the report made it.
8. That the loss of the vessel was not the necessary or actual results of the injury to the vessel.
9. That the loss is shown to have been incurred by the fault of the libellant or his agents.
The court, after full argument, overruled these exceptions, including the sixth, and entered a final decree in favor of the libellants for the amounts reported. Appeal was then taken by the respondents to the Circuit Court, where the parties were again fully heard, and the decree of the District Court affirmed; whereupon the respondents appealed to this court, and now sought to reverse the last-named decree.
Mr. Haskett for the libellants: The answer is in some respects too indefinite. It does not specify as it ought to have done wherein the ship was lying improperly at anchor, if she was lying so at all. The exceptions, also, to the commissioner's report are for the most part far too indefinite. Certainly this is true as respects the first, second, third, fourth, and fifth exceptions. They would impose upon the judges of this court the labor of hunting in the most minute way, throughout the record, to see wherein the alleged error of the commissioner consisted; leaving them in the end to guess at it only. This is irregular. The sixth exception is without foundation in law. The evidence shows that the collision was through the fault of the respondents alone. If this is so, the libellants are entitled to damages for her cargo. The collision was the cause of the loss, and the owners of the vessel as common carriers are liable to the owners of the cargo. The Propeller Commerce, decided lately,  in this court, is in point.
Mr. Gillet, contra: The injured vessel was anchored, of a very cold night, in a great thoroughfare of navigation. Her light, if any light was on her, was in the rigging. There was a mist on the water, and the light was obscured. The case is one of misfortune at worst; for which the respondents are not liable.
The answer and first five exceptions are in sufficient form. The court has the whole record, in a printed shape, before them. Learned in law, and instructed by the evidence in the facts, they can readily see wherein the point of each exception lies.
The sixth exception is well founded. The libellants are not entitled to recover for the value of the cargo. They have neither averred or proved that it belonged to them, nor that they were carriers. The inference is fair that it was taken as freight for third persons. They do not even show that the claim for the loss of the cargo was assigned to them, nor that they became the insurers of it; nor that under the circumstances claimed by libellants in this case, they would be liable over to the shipper. It does not appear whether the libellants or shippers insured, or not; or if insured, whether they have abandoned to the underwriters, so that the claim, if valid, belongs to the latter. It is no answer to say that the libellants are liable to the shippers for it. This may, or may not be so, and depends more upon what is not, than what is to be found in the record. The libellants have no right to impose upon the claimants the chances of double payment for the same thing. They had it in their power to have placed this matter upon proper footing by filing the libel in behalf of themselves and for the benefit of the shippers, or in some other way made the shippers parties, so that a recovery would have enured to their advantage and concluded them, and would have left the proceeds, when collected, in the registry, for them. It is clear, if the libellants could not do this, and thus bind the shippers, they cannot bind them when not named or referred to in the libel; and if they could not thus bind them, they cannot recover for the value of the shippers' property. The case of the Propeller Commerce, cited on the other side, does not determine this question. That was a case of common carriers, and this is not. Whether the owners of the cargo were protected by the form of the proceedings, or concurred therein, is not stated. Ordinary shipments, like the present, are upon special agreement, and the freighter is not a common carrier. But even in case of common carriers, the owner of property retains his ownership and right to control and to sue for injury to it. 
Mr. Justice CLIFFORD, after stating the case, delivered the opinion of the court:
^1 1 Black, 574.
^2 New Jersey S. N. Co. v. Merchants' Bank, 6 Howard, 380, 381.
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