
    DENNIS’S CASE. George R. Dennis v. The United States.
    
      On Demurrer.
    
    
      A collision occurs between the schooner of the claimant and an armed vessel of the defendants, wherein the def endant's vessel is culpable.
    
    The Court of Claims lias not jurisdiction of a case of marine tort.
    Mr. G. W. P. Smith for claimant.
    The Assistant Solicitor for defendant:
    The claim asserted in the petition in this case is one of tort, and at the* common law the remedy of the claimant would be by action of trespass on the case. He cannot give this court jurisdiction by waiving the tort, and bring assumpsit as upon an implied contract.
    
    The principle involved in this case was decided by this court at its October term, 1863, in the case of Pitcher v. The United States, Court of Claims Rep., vol. 1, p. 7, and affirmed in the case of Joseph Noch v. The United States, idem, p. 71, decided at the same term. In both of these cases compensation was claimed for the unauthorized 'use by the government of certain inventions, for which each of the claimants had letters patent from the United States, and the court held that it had not jurisdiction.
    The same principle must prevail here. Congress has appointed a special tribunal for the adjudication of all cases of admiralty or maritime jurisdiction; and cases of collision between vessels navigating waters where the tide ebbs and flows, as well as upon the inland lakes, are exclusively cognizable before such tribunal. De Lovis v. Boit, 2 Gall., 398; Gloucester Ins. Co. v. Younger, 2 Curt. C. C., 322; Philadelphia and Iiavre De Grace Steam Tow-boat Co. v. P., W. and B. R. R. Co., 5 Am. L. R., 280.
    It may, however, be insisted that, inasmuch as the vessel charged as being at fault was a vessel owned and employed by the United States, therefore no proceedings in admiralty could be instituted against said vessel. It is undoubtedly true that the claimant could not have proceeded against the vessel, but he might have proceeded against the master'. Here it is alleged that the collision resulted from the failure of the government ship to have the required signals. The failure to do this must be regarded as negligence on the part of the master: For such negligence the master, and not the United States, is responsible, and for this the claimant, by the statutes to which reference has been made, has a complete remedy in the district courts.
    Therefore, it is submitted—
    1st. That in the claimant’s cause of action resulting from a marine tort, he must find the remedy for the wrongs of which he complains in the United States district courts as courts of admiralty.
    2d. That the claimant cannot give this court jurisdiction of this case by a waiver of the tort, and making the facts and circumstances of this case the basis of an implied contract.
    3d. That inasmuch as the petition shows that the collision was the result of negligence on the part of the master of the United States vessel, the master of said vessel, and not the United States, is responsible therefor.
   Loring, J.:

This case comes before the court upon a motion to dismiss it for want of jurisdiction. The petition sets forth—

“That the petitioner, George E. Dennis, on or about the second day of September, in the year eighteen hundred and sixty-four, was the sole owner of the schooner William J. Dennis, of Deal’s island,, in the State of Maryland, of about twenty tons 'burden, a maritime vessel duly licensed by the United States to carry on the coasting trade, and was actually engaged navigating the Chesapeake bay within the flux and reflux of the tide.

“ That on or about the second day of September, eighteen hundred and sixty-four, about the hour of two of the clock at night, the said schooner was proceeding on a voyage from Annamessex river, a river making in from the Chesapeake bay, to Baltimore, having on board jive hundred and twenty-six bushels of oats, two hundred bushels of wheat, one hundred and seventy-two bushels of corn, /ninety bushels of peaches, two tons of cast and wrought iron, one hundred and twenty-five grain-bags, and sixty-five peach-packing boxes, all the property of your petitioner.

“ That while proceeding on her said voyage, at the said time, on the said Chesapeake bay, off, or near, the mouth of the Little Choptank river; and off, or near, James’s Point, on said bay, the wind being south-southwest, and the said schooner with the sails drawing-. with a free wind, those on board the said schooner discovered the steamer General 'Meigs, otherwise called the T. L. Cannon, proceeding on a voyage down the Chesapeake bay, to a point unknown to this petitioner; that when so discovered, the said steamer was about four hundred yards from the said schooner, coming with great rapidity down upon her; that there was no means which the said schooner could have adopted to have avoided a collision with the said steamer; the said schooner hugging the eastern shoals of said bay as closely as safety allowed; and that the said steamer took no steps, and those on board took no steps, and those on board made no effort,-to prevent such collision on their part. On account thereof thesaid steamer struck the said schooner on the larboard quarter about the centre of the after berth, between the taffrail and the main shroud, cutting her down to the light-water mark of the said schooner, and so injured her as that she immediately sunk and capsized.

“ That before, and at the time of the said collision, it was very dark, and the said schooner had all the lights and signals required by the act of Congress; hut your petitioner is informed, and verily believes, that no lookout was kept on board of the said steamer on or about the time of the collision, and that the said steamer had not such signals and lights as by law she was required to have; that the said steamer was, at the time of said collision, the property of the United States, was armed as a government vessel, and was then proceeding on government business ; and your petitioner is, therefore, advised that he has no remedy for the recovery of the damages incurred by said collision, except by application to this court.

“ That after said collision occurred, every effort was made to save the said schooner and her cargo; that her cargo was worth, two thousand, Jive hundred dollars, and became nearly a total loss; and the said schooner was brought to the shore and repaired at great expense, to wit, at the expense of two hundred and fifty dollars.”

■It is objected on the part of the United States by the Assistant Solicitor that the case alleged is of a marine tort of which this court has not jurisdiction. We think the objection well taken, and it is ordered that the petition be dismissed.  