270 F. 525 | 1st Cir. | 1921
These cross-libels in admiralty grew out of the stranding and sinking in the Cape Cod Canal of the steamer Chisholm on July 16, 1916. The Canal Company contends that the accident was due to a break in the pintle which held the lower part of the ship’s rudder in place. The ship’s owner contends that the accident was caused by the negligence of the canal officials in taking the ship into the canal on a full moon flood tide running about 4 knots an hour, without a tug. In the court below the owner prevailed; the Canal Company was held liable for a total loss of $321,740.87, besides costs. Both cases are here ou appeal, on a record' of some 800 pages. In the view we take of the cases the controlling facts may he briefly stated:
The Chisholm was an old coal freighter, built in 1884, about 216 feet long, 37 feet wide, drawing about 18 feet loaded, with a normal speed of about 8 knots. She had a bluff how, straight sides, heavy bilges, a flat bottom, with a rather short and sharp run to the stern. Her rudder hung supported from the deck, aud was held in place at the lower end by a pintle running through a projecting skeg. Such vessels, so equipped, are common. She arrived loaded at Wing’s Neck, the western entrance of the approach to the canal, about 5 p. m., July 16, anchored and signaled for a pilot. Pilot Rochester, in the employ of the Canal Company, was sent to take her through the canal. Rochester had been a United States licensed pilot for inland waters for 35 years, and was the most experienced pilot in the employ of the company. He had taken the Chisholm through, loaded, in the same direction, 45 days before. He had also several times piloted the Dever-eaux, a sister ship of practically the same build. Both ships had handled well. He had never had an accident. He regarded the condition of the tide as proper for the passage of the Chisholm. Pie — and practically all the other witnesses agree with him — stated that a favoring tide is better aud safer than a head tide. They also agree that a slack tide is better than either a head or a favoring tide. The weather was pleasant, with a gentle southwest wind. Everything was most favorable for the passage, excepting that the tide was, because of the full moon, running with somewhat more than its average strength. But such tides occur twice each month. The pilot took charge, and the Chisholm proceeded towards the Buzzards Bay entrance of the canal with Rochester and Capt. Pierce on the bridge. Rochester gave the orders; Pierce repeated them through a hole in the bridge to the steers
“On all the evidence I find and rule that the Canal Company was negligent in attempting to take the Chisholm through the canal at the time in question without the help of tugs and is solely at fault for her loss.”
The gist of this finding is that a vessel of that type should not be taken into the canal with a favoring 4-knot tide without the use of tugs. Whether, apart from the failure to use tugs, the court below intended to find negligence, is not entirely clear.
(1) That the accident was not due to the usual and inevitable dangers of using such a waterway, assumed by all vessels.
(2) That the accident was not due to defective steering gqar.
(4) That the use of a tug would have so obviously lessened the danger of passage as to make it negligence not to use a tug. It is not enough to conclude, on conflicting expert evidence, that a tug would have been a safeguard. The finding must be of such a consensus of opinion among competent and prudent men as to the use of a tug under such conditions as to make it negligence not to use a tug.
Manifestly a chain of evidence is no stronger than its weakest link.
The court below, on this conflicting evidence, concluded that a tug would have been of material assistance in preventing such an accident, as occurred. How such assisting tug should in that court’s view have been used is not quite clear.
“Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the. situation, or doing what such a person under the existing circumstances would not have done.” Railroad Co. v. Jones, 95 U. S. 439, 441, 24 L. Ed. 506.
This conclusion on this part of the case makes it unnecessary for us to determine whether the responsibility for not using a tug was solely that of the pilot, or was as matter of law, or as matter of fact, or both, assumed or shared by the captain. But we do not overlook the authorities which indicate that, under conditions not radically different from those presented by this record, the responsibility as to the use of a' tug rests upon or is shared by the captain, and does not rest solely upon the pilot. A regulation of the Canal Company was to the effect that the pilot should explain to the captain that tugs were available at no extra expense, so that the captain might, if he chose, ask for a tug. As above noted, when the Chisholm was coming up from Wing’s Neck, Capt. Pierce and Pilot Rochester talked concerning the use of a tug, and agreed, at any rate tacitly, that such use was not necessary or desirable; Plainly, Capt. Pierce knew more about the steering qualities of his ship than the pilot could know. Although less familiar with the canal and its currents than the pilot, he had been through it twice. It might well be contended that the captain was in as good a position as the pilot to judge of the behavior of his ship in a favoring tidal current in a narrow waterway, and as to whether a tug would help or hinder in its passage.
In Marsden’s Collisions at Sea (7th Ed.) 208, it is said:
“The responsibility for the employment of a tng in ordinary cases rests with the master, whether the ship is in charge of a pilot or not.”
Compare The Julia, Lush. 224, 226; Boston, Cape Cod & N. Y. Canal Co. v. White Oak Transportation Co. (C. C. A.) 265 Fed. 538, 544; The Oregon, 158 U. S. 186, 15 Sup. Ct. 804, 39 L. Ed 943.
WeTefer to this question concerning the responsibility of the captain and of the pilot as to the use of a tug simply in order to make it clear that we limit our present decision to finding- as a fact that, under the circumstances of this case, the Canal Company is not chargeable with negligence in not causing a tug to accompany the Chisholm on this attempted passage through the canal.
The fact that tlie New York boats and other vessels much larger than the Chisholm had been using the canal with apparent satisfaction and safety, that the Chisholm and her sister ship, the Devereaux, had been through several times without the. slightest difficulty, were facts upon which the canal officials had a right to rely as a basis for their judgment as to conditions under which the canal was safe for operation. Careful examination of the evidence as to the experience that the canal officials had had up to the time of this accident of the effect of the currents upon the safety of vessels passing through the canal at all states of tides — and without waiting for any particular condition of the tide — forces our minds to the conclusion that it was not negligence for the canal officials to admit the Chisholm at the time in question.
Compare Cleveland v. N. J. S. Co., 125 N. Y. 299, 26 N. E. 327; Hubbell v. Yonkers, 104 N. Y. 434, 10 N. E. 858, 58 Am. Rep. 522; Beltz v. Yonkers. 148 N. Y. 67. 42 N. E. 401; Marx v. Ontario Beach Co. 211 N. Y. 33, 105 N. E. 97.
The conclusion of the learned District judge that a man of ordinary prudence would not have permitted the Chisholm to go through the canal with a full moon flood tide seems to rest in large part upon the testimony of Superintendent Geer. Geer testified in substance that, when he received by telephone word that a freighter was at Wing’s Neck, he supposed it was the Mohawk, a much smaller vessel than the Chisholm, and that, if he had known that it was the Chisholm, he would not have allowed her in the canal at that state of the tide. But this evidence of Geer was much discredited. At the time of the trial lie was no longer in the Canal Company’s employ. It dearly appeared on bis own cross-examination that immediately after the accident he stated, and also reported to his employers, that, in his opinion, the accident was caused by the breaking of the pintle; that he never, until just before the time of the trial, had stated to any one his theory that the Chisholm ought not to have been allowed in the canal at that state of the tide. The District Judge commented upon the criticism of Geer’s testimony, but stated that he impressed him “as being a truthful witness.”
We recognize fully the importance and validity of the rule that great weight is to be attached to the finding of the trial judge on all questions involving the credibility of witnesses. But, giving full effect to this rule, we remain, on all the evidence, unconvinced that reasonable and prudent men would, in the light of the experience had with
While we are not prepared to hold that the court below was in error in finding that the Canal Company had not sustained the burden of showing that the accident was caused by the break in the pintle, and that the shipowner knew, or ought to have known, of its defective condition, we are unable to reach any confident conclusion tnat such was not the cause of the accident. The truth is that this record affords no basis for any dogmatic or confident finding as to the real cause of this accident. But it is impossible to free the mind from suspicion that the unprecedented and otherwise almost inexplicable failure of the Chisholm at this particular time to obey her helm may have been due to trouble then developed in her steering gear. There is no evidence of any cross-current or eddy to account for the sheer. There is no satisfactory explanation of why the vessel behaved in this unaccountable fashion, unless there was trouble — at this moment or just before developed — in her steering gear. It is true that there is evidence that vessels like the Chisholm did not, as the District Court found, handle “as sharply, nor as well, as those having finer lines, and need greater depth under the keel in order to steer well.” But it is also true that both the Chisholm and her sister ship had made several trips through that canal and had been found to steer well, and that no witness offers any convincing and satisfactory explanation of why, on this occasion, this vessel absolutely refused to obey her helm.
As noted ahove, to sustain a finding against the Canal Company, the owner must support the burden of showing that defective steering gear, whether known or unknown, was not the proximate cause of the accident. We think that burden has not been sustained.
The conclusions we have reached on these points made it unnecessary to discuss whether the accident might not be held due to the usual and unavoidable dangers assumed by all vessels in using such a waterway.
To conclude, we think neither libelant has sustained the burden of proving its case against its libelee. The result is that both libels should be dismissed, without costs, both in this court and in the court below.
.In each case, the decree of the District Court is vacated, and the case is remanded to that court, with directions to enter a decree dismissing the libel without costs; neither party recovers costs of appeal.