Opinion
December 27, 1928.
Carter Phillips, of New York City (Robert Phillips, of New York City, of counsel), for libelant Marine Lighterage Corporation.
Haight, Smith, Griffin Deming, of New York City (Henry M. Hewitt and James McKown, Jr., both of New York City, of counsel), for libelant Eastern Steamship Lines.
Charles H. Tuttle, U.S. Atty., of New York City (A.M. Menkel, of New York City, of counsel), for the United States.
Hunt, Hill Betts, of New York City (John W. Crandall, of New York City, of counsel), for respondent A.H. Bull Co.
Wm. F. Purdy, of New York City (T.A. McDonald, of New York City, of counsel), for Red Ash Towing Line and tugs Red Ash No. 1 and No. 3.
Foley Martin, of New York City (J.A. Martin, of New York City, of counsel), for tug Revere.
Burlingham, Veeder, Masten Fearey, of New York City (Paul Tison, of New York City, of counsel), for Rowland Liesegang.
In Admiralty. Libels by the Marine Lighterage Corporation, as owner of the lighter M.L.C. No. 41, and by the Eastern Steamship Lines, Inc., as owner of the barge O.D. No. 51, against the United States, as owner of the steamship West Nohno, and A.H. Bull Co., Inc., in which Rowland Liesegang, Inc., was impleaded. Libels dismissed as against A.H. Bull Co., and decrees against the United States granted.
Upon trial of these libels the steamship West Nohno was held solely at fault for the collision, in which the libelants' lighters were damaged. Whether the resulting liability is to be borne by the United States, as owner, or by A.H. Bull Co., Inc., as managing agent, is the only question reserved for decision.
When the collision occurred, and prior thereto, the navigation of the ship was in sole charge of a compulsory pilot, for whose selection the agent was in no way responsible. There was no fault in the execution of the pilot's orders, either by the crew of the ship or by the assisting tugs. For his careless navigation A.H. Bull Co., Inc., is not liable on any theory of agency. Homer Ramsdell Co. v. La Compagnie Générale Transatlantique, 182 U.S. 406, 21 S. Ct. 831, 45 L. Ed. 1155. Liability arises only in rem against the ship. Ralli v. Troop, 157 U.S. 386, 402, 15 S. Ct. 657 ( 39 L. Ed. 742); The China, 7 Wall. 53, 19 L. Ed. 67. Nor is there any liability to indemnify the owner against the consequences of the pilot's fault, unless by agreement, the agent has assumed such liability. The Hathor (D.C.) 167 F. 194; Crisp v. U.S. Australasia S.S. Co. (D.C.) 124 F. 748. The agency agreement here in question imposes no such liability upon A.H. Bull Co., Inc.
Accordingly I am constrained to conclude that A.H. Bull Co., Inc., is under no liability either to the libelants or to the United States. The question of the agent's liability for the carelessness of navigators, selected by it pursuant to the agency agreement, left undecided in New York Cuba Mail S.S. Co. v. United States (C.C.A.) 12 F.2d 348, does not arise, and therefore cannot be considered.
The two libels are dismissed as against A.H. Bull Co., Inc. Since libelants have elected to proceed under the Suits in Admiralty Act (46 USCA §§ 741-752) in accordance with the principles of libels in rem, they may take decrees against the United States for recovery of their damages, to be determined upon reference.