Adams v. Carey

Offutt, J., delivered the opinion of the Court. On January 10th, 1935, John Quincy Adams owned, and one Winder operated,, a ferry boat for the transportation of automobiles and passengers between Solomon’s Island in Calvert County and Millstone in St. Mary’s County, over the waters of the Patuxent River, in this state. In plying between those points, ordinarily, the boat was taken over a somewhat tortuous course, which ran across Drum Point Harbor, and near certain oyster ground which had been leased by the State to Bernard Lankford, who subleased a part of it to Norman C. Carey. This ground was located in an area of shallow water known as the “flats,” which extended to what was colloquially known as the “ups 'and downs,” where it abruptly shelved into the deeper waters of the channel.

A warning beacon is located at the edge of the ¹⁷⁷ deep water about 400 feet from a wharf at Solomon’s, referred to as the “steam boat wharf.” In making its “normal run” from Millstone Wharf to its dock at Solomon’s, the ferry boat crossed Drum Point Harbor, turned into Mill Creek, passed the steamboat wharf, and continued for a run of some six minutes to its dock. The ferry boat was about 65 feet long, about 20 feet wide on the bottom, drew about 6 feet of water, its propeller was about 36 inches wide, and it had a 60 horse power motor. Carey had planted, he said, at the time of the occurrence described below, about 315 bushels of oysters on the lot which he had leased from Lankford. At about 3 o’clock in the morning of January 10th, 1935, the ferry boat, in charge of Captain Winder, with a full crew, left the Millstone Wharf for Solomon’s Island.

The weather at that time was calm, there was little or no wind, the tide was coming in, and there was a heavy fog. Because of the fog, and the low visibility, Winder did not see the beacon as he passed it, miscalculated his course, and ran aground in the shallow water near Carey’s oyster ground. At the edge of the channel there was a post with “lattice work” on it, which the steamboat company planted as a guide for boats coming to its wharf. When Winder first saw that post, he reversed his engine, but was unable to stop the way of the boat before it ran aground.

When it ran aground one of the crew was in the bow as a lookout, another at the engine, and he was in the pilot house. After the boat ran aground, Winder tried to clear it by sending it alternately backward and forward, and eventually it did come free. But in the course of those maneuvers, the propeller churned up the sand, and the boat made holes in the bottom, so that as a result Carey’s oysters were covered with sand, and a portion of them destroyed. Thereafter Carey brought this action in the Circuit Court for St. Mary’s County against Adams to recover the value of the oysters destroyed, on the theory that their destruction was caused by the defendant’s negligence.

The trial resulted in a verdict and judgment ¹⁷⁸ for the plaintiff, and from that judgment the defendant ■ appealed. There was in the case evidence which tended to prove, in addition to the facts stated above, these facts, that the oysters were worth about sixty cents a bushel, that the holes made by the boat were about six or eight feet deep, and thirty or forty feet long, that the oysters were at times covered with sand when there was a very strong southeast wind, that there was no such wind that day, and that the propeller did not extend below the keel of the boat. At the conclusion of the whole case, the plaintiff offered one prayer which was granted, and the defendant seven, of which four were rejected and three conceded. These rulings are the subject of the first and only exception submitted by the record.

The defendant’s first prayer, a demurrer to the evidence in the usual form, denied the legal sufficiency of the evidence to show that the plaintiff’s loss was caused by any negligence on the part of the defendant. The plaintiff, on the contrary, asserted that the defendant was negligent in these respects: (1) In attempting to make the trip at all under the weather conditions; (2) in so operating the boat that it ran aground; and (3) in attempting to free the boat after it grounded by driving its propeller, instead of waiting for the tide to float the boat, or of procuring a tow to pull it off. In the order stated, the first question to be considered is whether negligence may be inferred from the fact that the ferry boat started on its trip from Millstone to Solomon’s at a time when, due to fog, the visibility was too low to permit those operating it to see objects marking the course, such as the beacon and the post with the lattice work. In dealing with that question, these facts, which are not in dispute, are relevant: The distance, between the two points is short, a part of the course is tortuous, while the boat was regularly employed in a ferry service, that trip was a special one, there were from twelve to twenty-five passengers on it, Capt, ¹⁷⁹ Winder, who was in charge of the boat, was the “regular captain,” and it may be inferred, familiar with the course.

These facts standing alone are not sufficient to support a finding that the defendant was negligent in attempting to make the trip from Millstone to Solomon’s Island under the weather conditions, although such conduct may be considered in determining whether, under the circumstances, the manner in which the ferry boat was managed was consistent with due care. It is said to be a general rule that: “Where in a river harbor, or narrow channel the weather is so thick that other vessels cannot be seen or heard in time to avoid them, or where the vessel cannot keep her course or know her position, she should not start on her journey, or, if under way, should come to anchor or land as soon as possible. * * *” 11 C. J. 1127. But in the United States, ferry boats are an exception to that rule, because as a matter of public necessity they cannot entirely stop making trips in a fog. Id.; Wright & Cobb Lighterage Co. v. New England Nav.

Co. (D. C.) 189 Fed. 809 (affirmed 204 Fed. 762 , 125 C. C. A. 129 ) ; The City of Lowell, 152 Fed. 593 , 81 C. C. A. 583 (reversed (D. C.) 139 Fed. 901 ); The Chicago (D. C.) 134 Fed. 1013 (reversed on other grounds 146 Fed. 979 , 77 C. C. A. 225 ); Hughes v. Pennsylvania R. Co. (D. C.) 93 Fed. 510 (affirmed 113 Fed. 925 , 51 C. C. A. 555 ); The Whitehall (D. C.) 68 Fed. 1022 ; The Orange (D. C.) 46 Fed. 408 ; The Exchange, 10 Blatchf. 168 , 8 Fed. Cas. p. 933, No. 4,593; The Hudson, 5 Ben. 206 , 12 Fed. Cas. p. 803, No. 6,829; Hoffman v. Brooklyn Union Ferry Co., 68 N. Y. 385 (affirming 4 Hun, 274 ). So it was held in Wright & Cobb Lighterage Co. v. New England Nav. Co., (D. C.) 189 Fed. 809, 814 , where a ferry boat collided in a dense fog with a car float moored to a pier in New York Harbor, that no fault could be attributed to the ferry boat merely because it operated in the fog, since public interest required that such boats make “their regular trips even in very thick fogs.” ¹⁸⁰ In Hoffman v. Union Ferry Co., 68 N. Y. 385, 394 , in considering the duty of the pilot of proceeding or laying to in a fog, the court said: “It is insisted by the appellant that the Baltic, as a ferry-boat, was exempt from this rule. I do not so understand the law.

The running of a ferry-boat upon her regular trips is important to the public, and her efforts to serve the public should be regarded with favor. Negligence would not readily, or except upon a clear showing, be imputed to her in endeavoring to make her trips in the dark, or through a fog, but she is not exempt from any of the positive rules which are applicable to all vessels except when especially exempted by statute. In The Sylph, supra [ 4 Blatchf. 24 , Fed. Cas. 13,711] Judge Nelson does not discriminate in favor of the ferry-boat. He dismissed the libel, because both vessels were navigating in a dense fog, but he expressly says, that had the other vessel been at anchor he would have charged the Sylph, which was held to be a ferry-boat, with the loss.

It may be, and it is not necessary to hold otherwise, that a ferry-boat would be justified in leaving her dock upon her regular trips, and moving cautiously in her usual course, when it would be improper and negligent for a vessel in other service to do so.” Considering the frequency with which fogs occur-in certain areas, and the serious interruption of water transportation which would result, if persons charged with the operation of a ferry service were required to suspend operations whenever a fog occurred, the mere act of continuing to operate the ferry under fog conditions should not be characterized as negligence per se, if it was operated prudently, cautiously, and carefully, with due regard to the safety of the passengers, and so as to avoid as far as possible injury or damage to the person or the property of others. Coming to the second point, the evidence shows that the boat proceeded at greatly reduced speed, that a constant lookout was maintained, that as soon as the post indicating the limit of the channel became visible the ¹⁸¹ engine was reversed, nor was there the slightest evidence of any want of care in the manner in which it was operated, unless the negligence may be inferred from the mere fact that it ran aground. But, assuming that it was not negligent to make the trip at all under the conditions, it is manifest that no such inference should be drawn. The fog and the tortuous character of the channel made such a mishap possible, notwithstanding every precaution short of laying to had been taken to avoid it.

The boat was plying over navigable waters, the master was under a duty to safeguard his passengers and to avoid collision with other craft navigating the same waters, and if, in the exercise of his right to navigate, he elected to go ahead, as safer than laying to, and his boat unavoidably, as the result of an accident unmixed with negligence, damaged private property lying under water adjacent to the usual and ordinary course, his conduct should not be characterized as negligence. So, it is stated in Farnham on Waters, sec. 33, in considering the liability of the owner of a vessel for damage to property on the water or along the shore. “But the shore and the structures located thereon are subject to the dangers incident to the right of navigation, such as the wash from the reasonable propelling of vessels in the stream, and the liability to receive injury by reason of their location from accidents resulting in moving craft along the waterway.” 24 R. C. L. 1236, 1237. (3) Finally, the appellee suggests that the action of the master of the vessel in attempting to free it from the sand bank by its own power was not only negligent, but that a natural consequence of it was to cover the oyster bed with sand, and to damage or destroy