Griswold v. Sharpe

California Supreme Court Jan 15, 1852Published

Before: Heydenfelt

AI Brief

AI-generated · verify before citing

Holding. The court affirmed the lower court's judgment regarding liability for a vessel collision but reversed the lower court's refusal to dissolve an attachment, holding that the attachment was a gross abuse of process because the underlying claim did not arise from contract.

Issues

Whether the appellate court should review the facts of a case tried without a jury where there is conflicting evidence.
Whether the owner of a vessel is liable for damages caused by an improper berth selected by a pilot.
Whether an attachment is a proper remedy in a case not arising upon contract.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“It has been heretofore decided, that where there was any conflict in the evidence, the appellate Court would not review the facts of a case.”

“The process of attachment is the creature of statute. It is a remedy only given in cases of indebtedness arising upon contract; and in this case, the resort to it was a gross abuse of that process”

Synopsis

This was an appeal from the District Court of the Fourth Judicial District.

The respondents filed their complaint in the District Court, averring themselves owners of the American Barque Carib, — Moore, master; that on the 22d of November, 1850, said barque was properly moored in the harbour of San Francisco, in the berth assigned by the harbour master, and in accordance with the harbour regulations; and was in good condition, and well provided, &e.;—that, on said 22d day of November, the British Ship Edward, whereof the appellant Sharpe, was owner, and the appellant Boyd, was master—anchored within a cable’s length of the Carib, contrary to law and the said regulations; and on the turn of the tide, the Edward came in contact with the Carib, doing damage, &c.; that the Carib then hailed the Edward, requesting the latter to shift her moorings, and keep clear of the Carib; which the Edward might have done, but refused or neglected; that on the 27th of November, both vessels retaining the same moorings, the Edward again swung in contact with the Carib, doing damage, &c.,—(describing the injuries;)—that the collision was caused by the fault of the master and crew of the Edward, in neglecting to shift her moorings, and keep clear of the Carib, as they might and ought to have done; and that the respondents had sustained damages to the amount of $5000, which sum was then justly due, without any legal set-offs; that the appellants were non-residents, and, as the respondents were informed and believed, intended removing the Edward out of the State; and praying judgment for the damages, and costs; and for a writ of attachment against the Edward, and all other property, &e., of the appellants; and for general relief. Moore made affidavit to the truth of the complaint; and that the appellants were indebted to the respondents in the sum of $4,499 50, over and above all legal set-offs, and that the demand arose upon a contract express and implied. The respondents having filed an undertaking as required by statute, a writ of attachment was issued, and levied on the Edward, her apparel, &c. The respondents subsequently amended their complaint, averring a survey of the damages by the Port Wardens, who estimated them at §4,499 50, and a promise and refusal by the appellants to pay the damages so assessed.

A motion to set aside the attachment was overruled. The appellants answered, first, denying the complaint generally. Second, that at the time of the collision, the Edward was properly moored in the berth to which she had been taken by the proper pilot; and that the collision was not caused by the fault of the Edward, but by the fault of the Carib, which was deserted by the master and seamen, and left in charge of the cook. Third, that after the collision, Moore, as master of the Carib, and Boyd, as master of the Edward, mutually executed arbitration bonds, submitting the matters in the complaint to the award of certain persons named, who, on the 6th of December, 1850, made and delivered their final award in writing, under their hands and seals, (but the award is not set out,) and averring a readiness, &c., to perform on the part of the appellants, and a refusal, &c., on the part of Moore.

Justice Heydenfelt delivered the opinion of the Court. This case was tried by the judge below without a jury. The main point on which the appellants rely for reversing the judgment, is based upon the ground that the judgment of the Court is not Warranted by the evidence. It has been heretofore decided, that where there was any conflict in the evidence, the appellate Court would not review the facts of a case. Hoppe v. Robb. We not only affirm that decision, but will also decline to review the facts of a case unless the assignment of errors shews that the Court below refused an application for a new trial, made on the ground that the verdict was contrary to the evidence;—and that only because the statute gives an appeal from the refusal of a new trial. In all cases where the judge below tries the facts of a case, the proper mode of reserving the questions of law arising upon the facts, is to ask the Court to decide the law as counsel may desire; and upon a refusal, to have it noted in the bill of exceptions.

In this case, even if the facts as shewn by the record were properly before us for revision, we could not disturb the judgment. We affirm the principle insisted on by the ■ appellant, [24]that in a case of collision, the plaintiff must be faultless. We also concede that the regulations instituted by the harbour master under the authority of the statute, are of binding efficacy, and form part of the law of the state. But, nevertheless, we think it sufficiently appears from the evidence, that the neglect of the plaintiffs to observe the rule which required his jib and flying jib booms to be rigged in, was not the cause of the collision. It may have increased the injury; and we must presume that it was so considered by the Court below in assessing the damages, especially as the record does not shew the contrary.

When a vessel is properly in charge of a licensed pilot, the owner is not liable for damages which may ensue from the negligence or misconduct of the pilot. Under our statute, however, the responsibility of taking a position, or berth, for a vessel in port, rests upon the master of the vessel, or upon the harbour master; and therefore the owner is not exempt from liability for injuries committed by taking an improper berth, although such berth may have been selected by the pilot who brought the vessel into port.

There remains but one other point to consider. It seems that,' pending the proceedings in this cause, an attachment was sued out by the plaintiffs below, which was levied on the property of the defendants. A motion was made to dissolve the attachment, which was refused by the Court below; and this refusal is assigned as error. The process of attachment is the creature of statute. It is a remedy only given in cases of indebtedness arising upon contract; and in this case, the resort to it was a gross abuse of that process, and this court must extend to it the remedy which the District Court refused.

Griswold v. Sharpe

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief