Summary
finding that vessel failed to rebut presumption of fault by proving "inevitable accident" when it failed to present evidence that mechanical defect was latent or that the vessel was properly maintained and inspected
Summary of this case from City of Chicago v. M/V MorganOpinion
Nos. 298-302.
June 10, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.
Libels by the Cranberry Creek Coal Company against the Red Star Towing Transportation Company and another, and by Hobart Loughlin and Thomas J. Howard, owner of the barges Rita Howard and Harry Howard, Sinram Bros., Inc., owner of the barge Irvington, and the Red Star Towing Transportation Company, as owner of the coal boat Wessels, against steam tug New York Marine No. 2, New York Marine Company. From an interlocutory decree of the District Court in favor of the Cranberry Creek Coal Company, the Red Star Towing Transportation Company appeals, and, from decrees dismissing their libels in the four other cases, the libelants appeal. Decrees dismissing libels reversed and causes remanded, and interlocutory decrees for libelants rendered.
The Cranberry Creek Coal Company was the owner of a cargo of coal laden in May, 1925, upon the barge, Wessels, owned by the Red Star Towing Transportation Company, to be carried from Perth Amboy, N.Y., to Great Neck, Long Island. The Wessels, along with nine other barges, was taken in tow by a tug of the New York Marine Company at Perth Amboy; the flotilla being made up in three tiers of three barges each, with a single barge in the fourth tier tailing onto the port barge of the third tier. The Wessels was the port barge of the hawser tier, and the Harry Howard the starboard, owned by another libelant, Thomas J. Howard. Just behind the Harry Howard in the second tier was another barge of Howard's, the Rita Howard. On her port hand, and therefore the middle barge of the second tier, was the Liberty, owned by the libelant, Loughlin, and astern of her; the middle boat of the third tier was the Irvington, owned by Sinram Bros., the remaining libelant.
All went well until the flotilla reached a coal pier below Elizabethport in the Arthur Kill, when the tug became disabled; the head of her high pressure cylinder cracking and leaving her helpless. She at once blew for help, and her master called upon one, and as he maintained upon all, the bargees to make ready their anchors. Later he gave the order to let go, and the Harry Howard obeyed. This anchor was not enough to hold the whole flotilla and it drifted up the Kill on the flood tide, colliding with a dock at Elizabethport. The barges of all the libelants were injured, the Wessels so badly that she sank.
The Cranberry Creek Coal Company sued the Wessels and her owners under the contract of carriage, and the New York Marine Company under the towage contract; the barge owners severally sued the Marine Company under the towage contract. The District Court dismissed all the libels against the tug and gave a decree against the Wessels upon the libel of the Cranberry Creek Coal Company.
The precise cause of the accident was as follows: The piston packing was put on top of the piston and held in place by a plate on its upper face. The piston and plate were connected by six threaded studs or bolts fastened in the head and extending through holes in the plate. Nuts were then screwed down upon the studs, the packing being thus pressed between the piston and the plate. One of the studs broke for some unknown reason, and the nut with part of the bolt slipped to one side of the plate, so that the clearance between its top and the cylinder head was not enough. As the piston rose, the nut struck the head, and cracked it, allowing the steam to escape.
The tug had been built in 1900, and there was no evidence that the original studs had ever been replaced; this had certainly not been done since 1922. She had, however, been in dry dock a month before the accident, when the cylinder head and plate had been taken off, and the packing renewed. After the plate was reset upon the new packing, the nuts were screwed home hard and cotter pins put in place. It did not appear that at that time there had been any examination of the studs, either by testing the metal or looking for cracks or the like. Although the nut and stud were put in evidence, no effort was made to explain the break, or to say what should be the life of such studs.
Barry, Wainwright, Thacher Symmers, of New York City (Earle Farwell, of New York City, of counsel), for the Wessels.
William J. Mahar, of New York City, for the Liberty and the Cranberry Creek Coal Co.
Macklin, Brown, Lenahan Speer, of New York City (J. Dudley Eggleston, of New York City, of counsel), for the Harry Howard, the Rita Howard, and the Irvington.
Burlingham, Veeder, Fearey, Clark Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for the tug.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
As in collision, so in towing, a vessel does not, of course, become liable for all damage arising from her navigation or unfitness; she is not an insurer, and the injured party must establish some fault through neglect or affirmative misconduct. But there are situations in which the law does not put the duty upon the sufferer to make proof at the outset; either because the facts are especially within the owner's knowledge, or, as in the case of collisions with an anchored vessel, because usually there must be some fault, it is thought just to require the owner to explain, and if he does not, to charge him. A failure of machinery or gear is within this class of cases and the owner's duty is often spoken of as the defense of "inevitable accident." Strictly, it is no defense at all, but a true presumption; that is to say, a duty laid upon him to supply proof which casts him if he fails.
This duty extends not only to disclosing what happened, but what was done to avoid, and what would have been necessary to prevent it. After he has done so, no doubt the burden remains upon the injured party to show that the necessary care was not beyond what the law exacts, but the owner is in no position to demand consideration of that question until he has made his proof. We have enforced this rule under a variety of circumstances (The J. Rich Steers (C.C.A.) 288 F. 319; In Re Reichert Towing Line (C.C.A.) 251 F. 214; The Westchester (C.C.A.) 254 F. 576; The Columbia (C.C.A.) 255 F. 515); and it is not at all peculiar to us (The Olympia, 61 F. 120, 122, 123 (C.C.A. 6); The City of Camden, 292 F. 93 (C.C.A. 3); The Merchant Prince, [1892] Prob. Div. 179 (C.A.). It makes no difference whether the case involves a collision, towage, or, for example, the local statute against dumping refuse in New York Harbor.
In the case at bar the respondent showed nothing at all as to what it had done to provide a seaworthy stud. The tug was 25 years old at the time, and, so far as appeared, the stud may have been in continuous use all the time. When she was overhauled shortly before the break, nothing was done to ascertain that it was still serviceable. Whether metal degenerates with age under such circumstances we cannot tell, nor how often such a member should be examined and replaced. The reason for the break we are left to guess by inspection. It was quite immaterial that the nuts were screwed home; that would have been important only if they had worked loose. The proof stopped precisely at the critical point; it showed what the defect was, but not what was necessary to detect and provide against it. The liability was therefore established.
On the other hand, the failure of the barges to let go their anchors might have been a true defense. This could not, indeed, apply to the Harry Howard, which did what she could, nor to the Liberty and the Irvington, which were the middle barges in the second and third tiers and could not let go their anchors, unless they cut adrift, which they were neither called upon to do, nor justified in doing without orders. It was important only as to the Rita Howard and the Wessels. As to the first the argument is that the bargee should have heaved her anchor over the starboard rail so as to clear the Harry Howard, made fast close ahead. As we think that no adequate orders were given in any case, and as that is an answer both as to her and to the Wessels, we pass the possibility that she could have let go her anchor in this fashion.
That some order was given is proved by the conduct of the Harry Howard, and is indeed conceded. When the tug first became helpless her master went aft and, as he says, shouted to the bargees in general to get their anchors ready. The bargee of the Harry Howard did so, but those on the Wessels and the Rita Howard did not understand that the order was for them, and indeed the tug's master was not clear as to just what he did say, though apparently he saw all the bargees who had been aroused by the accident. He then went forward to blow his whistle and later returned aft two or three times, at one of which he gave a similarly indefinite order to let go. His confusion was such that he failed to drop even his own anchor, though in some way he managed to make off to starboard and escape injury.
It must at any rate have been clear to him that the order, if given to all the bargees, or to those in the hawser tier, had not been so understood. Near to half an hour passed between the accident and the collision, during which there was nothing to do but blow distress signals and drop anchor. Had the time been short, had the weather been bad or the distance great, we could see a possible excuse, but why it was impossible on a quiet day to communicate over a distance less than two hundred feet is not explained. At least the defense was not made out.
The tug argues, however, that the bargees should have known enough themselves to drop anchor. Certainly this was untrue of the Rita Howard, whose position made such action difficult and possibly dangerous. More can be said for the fault of the Wessels, but in our judgment not enough. The tow was still under the tug's command, and the bargees were bound to follow her orders. The Margaret, 94 U.S. 494, 496, 24 L. Ed. 146; The Inca, 148 F. 363, 365 (C.C.A. 5). The Wessels' bargee might have divined the master's purpose or he might not. It was at least conceivable that he meant to swing the flotilla to starboard through the drag of the Harry Howard's anchor, and his own if he let it go. In any event the bargee was not called upon to act independently until the tug had plainly surrendered control, and the relation between them had thus ended. Bargees are at best a feckless folk, not to be intrusted with initiative while the tug is in charge. Indeed, it is not at all clear that two anchors would have held better than one, though that we do not press.
The Cranberry Creek Company in its libel joined the Wessels in rem and her owner and the Marine Company in personam. The value of the tug is apparently enough to answer the claims of all the libelants; and, as the Wessels would in any case be only secondarily liable, the suit as to her becomes moot. The question involved turns upon whether the Harter Act applies to a vessel navigating between Perth Amboy, N.J., and Great Neck, Long Island, a question of some importance, which we do not wish to decide, unless it becomes necessary. At the present time it is not, and we shall therefore dismiss the libel against the Wessels and her owner without prejudice to its revival in the District Court, should the value of the tug prove inadequate to meet all the claims.
The decrees dismissing the libels against the Marine Company and granting relief against the Wessels and her owner are reversed, and the causes are remanded. The Cranberry Creek Company will take an interlocutory decree against the Marine Company; its libel against the Wessels and her owner will be dismissed without prejudice to its revival in the District Court, should the value of the tug prove inadequate to meet all the claims. The libelant Loughlin will take an interlocutory decree in personam against the Marine Company. The other libelants will take interlocutory decrees against the tug in rem and the Marine Company in personam.