negligence cases in Pennsylvania. However, a doctrine closely approaching it has been adopted by the courts in that jurisdiction. For instance, if an automobile proceeding along the street suddenly leaves the cartway, runs up on the pavement, and strikes a pedestrian, a prima facie case of negligence on the part of the driver is thereby established, without showing more; and the duty of explaining the happening or furnishing some justifying excuse is cast upon the driver, because he has permitted something to happen which does not happen in the ordinary course of events.
Thus in the instant case the duty of the watchmen was to watch. The detained seamen could only have left the ship through the forecastle door (unless they hewed their way through the hull of the ship -- a contingency too remote to receive consideration here). If they left through that door, the watchmen should have seen them. There were only two possibilities: either the watchmen did not see the detained seamen leave, or, seeing them, made no effort to detain them. In either event, there was an improper performance of duty on the part of the watchmen, a lack of necessary and proper care, a breach of performance under the contract. The fact of the escape without any adequate explanation offered therefor by the watchmen makes this plain.
I therefore find that the libellant, Ring, improperly and inadequately performed the services for which she was to be paid.
The next question is whether, by reason thereof, the libellant becomes liable for the amount of the fine ($2,000). In my opinion, she does.
Damages to which an injured party is entitled are those which would naturally or reasonably flow from the breach
: In applying this rule, or elucidating it, it is also held that the party injured is entitled to those damages which the other party could or should foresee, as damages which would probably ensue from the particular breach.
At times it is difficult to determine whether the party liable could foresee a particular item of damage. In the case at bar, there is no such difficulty. The libellant Ring knew that the six seamen were under an order of detainer, and that a fine of one thousand dollars would be incurred for each seaman who escaped: (R-10). The testimony is:
"Q. And you knew from the beginning when you first started to furnish your watchmen that in the event any of these detained seamen should escape that the vessel would be liable to a fine of $1,000, didn't you? A. That is customary, yes.
"Q. And the purpose of sending your watchmen was to see that none of these detained men escaped? A. The men were to do their best to keep them on board, but not guarantee to keep them on board."
The Restatement of the Laws of Constracts, § 330, in discussing a situation such as existed here, states: "In awarding damages, compensation is given for only those injuries that the defendant had reason to foresee as a probable result of his breach when the contract was made. If the injury is one that follows the breach in the usual course of events, there is sufficient reason for the defendant to foresee it; otherwise, it must be shown specifically that the defendant had reason to know the facts and to foresee the injury."
Applying this language, it may be said that of course it was shown here that the libellant Ring not only had reason to know the facts and to foresee the injury, she actually did know the facts and did foresee the injury, as she admitted.
The damage here claimed by the vessel (i.e., the amount of the fines), is in the nature of special damages, in which field of the law it is all the more necessary to invoke the doctrine of foreseeability. As already indicated, I am convinced that this special damage is one for which the libellant is liable. See the definitions of Special Damages collected in the notes to 17 C.J. 715, § 42; 25 C.J.S., Damages, § 2.
I therefore find that the libellant Ring is liable to the claimant and cross-libellant for fines.
However, the fines have not been paid. There is some possibility that the fines may be reduced upon application, perhaps altogether avoided. There is no doubt in my mind, however, that at present, the situation is that the claimant is liable for their payment. If the claimant escapes any part or all of the fines, the libellant should be subrogated to any benefit thereby accruing to the claimant. Suitable provision may be made in the decree to provide for such possibilities. Such provision should include an order upon the claimant to initiate and pursue any possible proceeding looking towards remission or reduction of the fines or, in the alternative, permit the libellant to do so.
The libellant has also argued that she is not liable for the fines because the claimant carries insurance against fines. That argument cannot prevail. The only effect of the insurance, so far as the libellant is concerned, is that the insurance company would be subrogated to the vessel's claim against the libellant for the amount of the fines.
The liability for the fines is fixed by statute, in section 20 of the Act of May 26, 1924, 8 U.S.C.A. § 167. Even though the fines have not yet been paid, nevertheless the libellant is liable therefor: Buckbee v. P. Hohenadel, Jr., Company, 7 Cir., 224 F. 14, L.R.A.1916C, 1001, Ann.Cas.1918B, 88.
The respondent concedes that the libellant is entitled to payment for the services of the watchmen.
The libellant's right to payment is well-settled.
"The measure of damages in the case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfillment of the contract would have prevented or the breach of it has entailed. In other words, the person injured is, so far as it is possible to do so by a monetary award, to be placed in the position he would have been in had the contract been performed. * * *" 25 C.J.S., Damages, § 74.
In accordance with the above, I find, therefore, that the respondent owes the libellant Ring $1,750.10; and the libellant Ring owes the respondent $2,000. The arithmetical result is that the libellant Ring owes the vessel $249.90: she retains, however, a right of subrogation or credit to any remission or reduction of the fine.
Let a proper decree be submitted.