Summary
In Du Bois Sons Co. v. P.R.R. Co., 47 F.2d 172 (C.C.A. 2) the bargee had not asked to be put where the tug put him; it was the tug which chose what in the circumstances was a foul berth.
Summary of this case from Sinram v. Pennsylvania R. Co.Opinion
Nos. 125, 145, 146.
January 5, 1931.
Appeal from the District Court of the United States for the Southern District of New York.
Libels by the Henry Du Bois Sons Company against the steam tug Mercer, her engines, etc., claimed by the Pennsylvania Railroad Company, and against George Walling, and by the Peerless Coal Company against the steam tugs P.R.R. No. 32 and the Mercer, their engines, etc., claimed by the Pennsylvania Railroad Company, wherein the barge Margaret G, her tackle, etc., was impleaded, and by George Walling against the steam tugs P.R.R. No. 32 and the Mercer, claimed by the Pennsylvania Railroad Company. From the decrees, the claimant in the first case and libelants in the last two cases appeal.
Affirmed as to the first case, and decrees in the other two cases reversed.
On the afternoon of August 27, 1927, the steam tug P.R.R. No. 32 had in tow seven loaded coalboats bound from South Amboy to New York. Of these, the Margaret G, owned by George Walling and laden with a cargo of coal belonging to the Peerless Coal Company, was one. The tug Mercer was assisting the tow. For reasons not now material, the tow was tied up at the Arlington Pier just beyond the B. O. bridge in the Arthur Kill that night. The next morning the tow was picked up by the tug Overbrook which, assisted by the Mercer, started with it to its destination. The Margaret G was and had been leaking and running her one pump located in the bow. Upon being informed that the water was gaining on her pump, the tug Mercer took her out of the tow and moored her at the east side of the Du Bois Pier at Mariner's Harbor, Staten Island. Her bow was grounded on a ledge. She was between the Du Bois Dredge No. 4 then stationed off the pier end and the pier. A bowline was run to the pier and a sternline to the dredge. It was Sunday morning. A short distance away was a municipal pier where the bottom was gently sloping, and where the Margaret G might have been moored.
The Margaret G lay there until 9 o'clock that night with her pump running. Her stern was then low. About that time the engineer of the Du Bois which was lying north of the No. 4 dredge, had some talk with the captain of the Margaret G. This engineer was the only witness in the case. He testified that when he got up Sunday morning about 9 o'clock the Margaret G was moored at the pier. After his talk with her captain about 9 in the evening, he went to bed. He was awakened by the watchman about an hour later, and then the Margaret G had entirely disappeared. Her captain was floating on some hatches and was rescued. Before the Margaret G sank, the swo spuds on the bucket end of the dredge were down and intact. Afterwards, the bottom of one of the spuds was sticking out from the dredge and the top of the spud had smashed the house in and taken away part of the upper part of the hull. The bottom where the Margaret G was moored was steeply sloping from the ledge on which her bow was grounded and the water at least fourteen feet deep at low tide.
Several days later the Margaret G was pumped out and raised. She was then "quite a ways over the dredge out in the Kill von Kull."
The Peerless Coal Company, as owner of the cargo, sued the tugs P.R.R. No. 32 and Mercer and their owner the Pennsylvania Railroad Company. The Margaret G was impleaded. George Walling, as owner of the Margaret G, sued the two tugs and their owner. Henry Du Bois Sons Company, as owner of the dredge, sued George Walling, the Mercer, and the Pennsylvania Railroad Company, its owner. In the District Court, Henry Du Bois Sons Company had a decree for its damages against the Mercer, and its libel against George Walling was dismissed. The Pennsylvania Railroad Company, as claimant, appealed. The libel of George Walling was dismissed with costs to the owner, and claimant of the two tugs and Walling appealed.
William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for libelant-appellee.
Single Single, of New York City (Wm. J. Mahar, of New York City, of counsel), for libelants-appellants.
Burlingham, Veeder, Fearey, Clark Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for appellee Pennsylvania R. Co.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
Although the evidence is rather meager, the conclusion is inescapable that the Margaret G did, when she sank, slide out under the dredge, and, by hitting the spud, do the damage occasioned the dredge. The Mercer tied her up Sunday morning. We may assume that her leaking condition made this necessary, but, of course, there was no immediate danger of her then sinking, and the Mercer had ample time to fulfill whatever may have been its duty to give her a safe berth. That she would probably sink if left to her own devices may be taken for granted, since that was why the Mercer moored her. Without knowing or taking any steps to ascertain the nature of the bottom, the Mercer left the Margaret G to sink or float as the event might develop without any aid from the tug whatever.
When the Mercer took her out of the tow to moor because of her leaking condition, the tug was bound to exercise the skill and care a prudent navigator would employ in like circumstances, for the bailment continued until the service contracted for was performed or performance excused. Doherty v. Penn R. Co. (C.C.A.) 269 F. 959; The W.H. Baldwin (C.C.A.) 271 F. 411; Maryland Transportation Co. v. Dempsey (C.C.A.) 279 F. 94. The duty the Mercer owed the Margaret G was not fulfilled by tying her up and leaving her to sink unless reasonable care would not have prevented her sinking at all. So, before we need consider the choice of a berth, we may well inquire whether the Mercer was justified in abandoning the coal boat at any berth.
Certainly, abandonment to sink at the pier, before all reasonable efforts to keep her afloat were exhausted, was a breach of duty imposed by law, The Joseph F. Clinton (C.C.A.) 250 F. 977, and the burden is on the tug to show that no reasonable effort on her part would have kept the coal boat afloat, Appeal of Cahill (C.C.A.) 124 F. 63. As to that the record is silent. We know, however, that water was gaining on the coal boat's pump. This plainly indicated her sinking unless aid was obtained. We know her pump was in the bow, and, of course, grounding her bow had no effect to prevent whatever surplus water came in from running aft, no matter where the leak was located. This would put it beyond the reach of the pump, and the stern would inevitably get lower and lower. We know that she remained afloat for over twelve hours. Had the Mercer stood by and used her syphon, it cannot be taken for granted that the Margaret G would have gone down, and so it was incumbent upon the tug, the sinking having been proved, to prove that it was not caused by her negligence.
It is true that there is no evidence that the Margaret G was seaworthy when taken in tow or to show what caused the leaking or just when it began. If it be assumed for the argument, however, that she was unseaworthy when the voyage began, the tug is, nevertheless, liable for any loss attributable solely to its failure to exercise due care to save the boat and cargo from that damage which it could have prevented by taking reasonable and prudent action to protect the boat and cargo from sinking from whatever cause. McCormick v. Jarrett (D.C.) 37 F. 380. See The M.J. Cummings (D.C.) 18 F. 178; The Jonty Jenks (D.C.) 54 F. 1021. Nor was it shown that the captain of the Margaret G could have obtained assistance after being moored and abandoned or failed to do all within his power to prevent sinking. On the evidence, the Mercer is responsible for all the damage caused solely by the sinking of the coal boat.
Henry Du Bois Sons Co. v. Tug Mercer, etc., affirmed. Peerless Coal Co., Inc., v. Tugs, etc., reversed. Walling v. Tugs, etc., reversed.