Summary
In Robins Dry Dock v. Navigazione Libera, 2 Cir., 32 F.2d 209, we held a master at fault who had done nothing for over four minutes during which the ship's engine had gone forward after the engine room had assented to a backing signal.
Summary of this case from Union Shipping Trading Co. v. United StatesOpinion
No. 204.
April 8, 1929.
Appeal from the District Court of the United States for the Southern District of New York.
Action by the Robins Dry Dock Repair Company against the Navigazione Libera Triestina, S.A. From the judgment, plaintiff appeals. Reversed.
On January 21, 1926, the Moran Towing Transportation Company, with two tugs, was engaged in assisting the defendant's steamer Brenta II to move from a slip in the Erie Basin about 150 feet from the gate of a dry dock of the plaintiff, and then out into the stream, where she was to be turned over to the Sandy Hook pilot. To do this, the Brenta had to be taken out stern first until her bow would clear the slip, and then half turned to head her into Red Hook Channel. One of the tugs took a line from the Brenta's bow on the starboard side, and the other a line from the starboard quarter, so as to be able to pull astern. Meanwhile, the captain of one of the tugs, Healey, who was in charge of the operation for the towing company, subject to the orders of the captain of the ship, went to the bridge of the steamer. On the bridge with him were the Brenta's captain, a mate, a quartermaster, and a Sandy Hook pilot.
The evidence of Healey, somewhat corroborated by that of the pilot and not contradicted by any witness, was that the captain gave orders to let go the ship; that he (Healey) ordered the stern tug to pull astern, and at the same time signaled the ship's engine room by telegraph from the bridge for half speed astern. The signal to the engine room was given by moving a lever on the bridge, which set a dial in the engine room at the order given. The order was usually acknowledged by moving a signal lever in the engine room to the position indicated, and that set a dial on the bridge to correspond with the one in the engine room. Healey testified without contradiction that his signal was correctly acknowledged from the engine room. That the ship then began to move forward, instead of backward, and that Healey gave orders for full speed astern, was also undisputed. The ship kept moving ahead, the bow line to the tug parted, and in from 4½ to 5 minutes the bow of the steamer struck, and damaged the gate of the plaintiff's dry dock. The ship then backed away and proceeded out to sea.
At the trial the defendant introduced no evidence after the plaintiff rested. It did not dispute the amount of the damage, but claimed that, if there was any negligence, it was on the part of Healey and the towing company, and that the defendant was free from fault.
The plaintiff excepted to the refusal of the court to charge, as requested, that if Healey gave the order to put the engines astern, and the ship went ahead, the plaintiff was entitled to a verdict, and that the captain of the Brenta was not removed from command of the ship by the presence of Healey on the bridge. The plaintiff also excepted to the refusal of the court to permit comment to the jury on the failure of the defendant to produce as witnesses the engineer, captain, and mate of the Brenta. On cross-examination of Healey, the defendant, against the objection and exception of the plaintiff, was permitted to show that about two years previously, when he was the pilot in charge of the steamer Clam, it was in collision with the steamship Corvus, and that he attempted to excuse that collision by blaming the ship's engines.
Crowell Rouse, of New York City (Harold Harper, E. Curtis Rouse, and Murray F. Johnson, all of New York City, of counsel), for appellant.
Loomis Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The plaintiff had the burden to prove actionable negligence on the part of the defendant, and was not entitled to a verdict simply by showing that the ship went ahead after Healey gave an order to put the engines astern. There was no quick movement and immediate collision after the order was given. About five minutes were available in which to stop the ship. His order and the subsequent movement of the ship were important things to be considered on the question of negligence, but the request made the liability of the defendant dependent upon these two things alone, regardless of the conduct of the ship's captain, the actual cause of the forward movement of the ship and of the failure to stop, or anything else.
The request to charge that the captain was not removed from command by Healey's presence on the bridge should have been granted. Assuming, as the defendant claims, that Healey was in charge of the ship as the representative of an independent contractor, we have undisputed evidence that the ship went the wrong way and in a direction which endangered the plaintiff's property for a period of from 4½ to 5 minutes. It cannot be thought that the captain on the bridge during all of this time was wholly without responsibility, or so divested of his authority by the presence of Healey that he was under no duty whatever to try to correct the movement of his ship. Quite the contrary is true, and this whether the pilot in charge was a voluntary or compulsory one, for the master does not completely surrender his authority in either event. Jure v. United Fruit Co. (C.C.A.) 6 F.2d 6. The liability of the defendant in this respect is not directly related to Healey's conduct, but to the captain's. That he knew, or should have known, what the ship was doing, is self-evident. Unless its forward movement was arrested, an accident was inevitable. Knowing this, it was his duty to take whatever effective measures he had at his disposal to avert the impending collision. He could have displaced the pilot, if necessary. Baxter v. Camp (The Marcellus) 66 U.S. (1 Black) 414, 17 L. Ed. 217; The China, 74 U.S. (7 Wall.) 53, 19 L. Ed. 67; Jure v. United Fruit Co., supra; Charente S.S. Co. v. United States (C.C.A.) 12 F.2d 412.
There was nothing to show that the members of the Brenta's crew, not called as witnesses by the defendant, were still in its employ, and, whether they were or not, the rule applicable to a party who fails to call witnesses exclusively in its control does not apply to a defendant who introduces no evidence at all. A defendant, if so advised, may well let the case go to the jury on the weakness of the evidence presented by a plaintiff, who has the burden of proof, without being taken to task for failure to call certain witnesses, or have any adverse inference drawn which would not follow from an entire failure to refute the evidence introduced. In this regard a party who introduces no evidence, and has witnesses exclusively within its control, stands the same as a party who introduces no evidence and has no such witnesses. McDuffee's Adm'x v. Boston Maine R. Co., 81 Vt. 52, 69 A. 124, 130 Am. St. Rep. 1019; 22 C.J. 112.
The examination of Healey to show that at some previous time, wholly unrelated to this accident, the steamer Clam, with him in charge, was in collision with the Corvus, had no tendency whatever to prove any of the issues on this trial. It was prejudicial, in that it tended to create an impression in the minds of the jury that Healey was apt to have trouble, and was then prone to find in a claimed failure of a ship's engines a ready excuse for whatever fault was found with him. The slight and uncertain bearing evidence of one's conduct at one time, whether prudent or negligent, has on the question of his prudence or negligence on some subsequent unconnected occasion, is so well recognized that any possible probative force it may have has to give way before the danger of injustice, which would accompany the multiplication and confusion of issues resulting from its introduction. Maguire v. Middlesex R. Co., 115 Mass. 239; Laufer v. Bridgeport Traction Co., 68 Conn. 475, 486, 37 A. 379 (37 L.R.A. 533); Delaware, L. W.R. Co. v. Converse, 139 U.S. 469, 11 S. Ct. 569, 35 L. Ed. 213. Since the evidence was on a collateral issue, his answers were not admissible to lay the foundation for his impeachment. Niebyski v. Welcome, 93 Vt. 418, 108 A. 341.
Judgment reversed.