11 F. 342 | S.D.N.Y. | 1882
This is an action in personam, brought to recover damages by the libellant, as owner of the canal-boat Edith, by reason of her being sunk while temporarily moored at Port Morris during a. severe storm on March 9, 1877. (¡
The respondents are the owners of a line of steam-tugs. The libellant, in company with the owner of another canal-boat, called upon the' agent of the respondents a few days previous and entered into an oral contract with him whereby the respondents agreed to tow the-Edith and the other canal-boat from Jersey City, where they were then lyiqg, to New Haven, on Long Island sound, for $35 each, and to call and take them in tow that afternoon or the following morning. Nothing was said about stopping at Port Morris on the way.. The next day, between 6 and 7 o’clock a. m., the steam-tug -Howell, owned by the respondents, took the Edith, with two or three other canal-boats, in tow from Jersey City, and proceeded up the East.
Early in the morning oi the 9th a severe storm set in from the south-east, and the wind blew at 7 a. m. at the rate of 42 miles per hour. Port Morris is an unsafe harbor in a storm from this quarter, ranging over about four or five points of the compass from about E. S. E. to S. S. E., being exposed to the sweep of the wind in that direction over from one to two miles of water, with but little to check the waves that would roll up from that expanse. In a gale from any other quarter it is regarded as a safe harbor. In the severe southeast gale of the 9th a heavy sea was driven upon the port bows of the canal-boats as they lay moored at the bulk-head, which washed over their decks and caused all to take in more or less water.
The Edith was loaded with about 300 tons of coal, down to within 18 to 20 inches of the water line. She had also, as did several of the other boats, coal upon her deck aft to balance the weight of coal loaded on her “stable” forward. Being the outer boat of the forward tier, she was in the most exposed position. As the gale increased she was dropped astern by her captain, with the aid of persons on board of the other boats along-side of the two boats in the third tier, which was tho least exposed situation which could be procured without the aid of a tug. But as the storm continued to increase her
The captain and owner of the Edith, who lived on board with his wife, did all he could to save the boat from sinking, with the help of others of the tow. 'He was up by 4 a. m., and when the water began to wash over her he nailed canvas over all the pump holes, nailed down the hatch covers, and, with his wife, protected the cabin windows by such means as were at command. There was no other means of help at hand, nor any place where, without the help of the tug, the boat could have been removed so as to be in less peril. The three tugs of the respondents, which brought the boats up to Port Morris, had all returned to New York, and stayed there during the gale.
It was a point in controversy upon the trial whether the tugs had left the canal-boats at Port Morris two days, or only one, before the morning of the storm. All the libellant’s witnesses alleged that it was two days; the respondents’, that it was but one. In the libel and answer the gale-was stated to be on the tenth of March. The signal service records, however, show clearly that it was on the morning of the 9th. A corresponding correction of one day has, therefore, to be made in the dates assigned in the pleadings, and in almost all the testimony on the subject. The answer, in effect, admits that the boats were towed from Jersey City to Port Morris two days before the gale, and such appears to be the preponderance of evidence. Upon the morning of the 7th the wind was south-west, —a moderate breeze, — and so remained until the evening. At 9 p. m. the wind was from the north-east, and so remained, a light breeze, until 4:47 in the afternoon of the 8th, when it shifted to the south-east, 16 miles per hour.” At 9 p. m. of the 8t.h it was an easterly gale, 30 miles per hour. At the signal service station in New York cautionary signals were hoisted on the 7th, at 9:47 a. m., and lowered at 7:15 p. m. They were hoisted again on March 8th, at 10:35 a. m., and were continued until 10 a. m. of March 10th. At Cow bay, about
Upon the foregoing facts both parties are chargeable with negligence which directly contributed to the loss.
The Edith was not only overloaded, but also improperly loaded for a voyage from New York to New Haven, upon the sound. Capt. Kerran, of the Howell, testified that she was fit to go on the sound only in the calmest weather. The towage of such boats upon the sound is at best a hazardous business; they can be towed safely only through the exercise of groat care and caution, by taking advantage of calm weather and stopping when necessary at intermediate harbors. Such canal-boats are neither designed nor fitted for general navigation upon the sound, where, if deeply loaded, they are liable, notwithstanding the utmost prudence, to be caught by winds which may suddenly raise a sea sufficient to swamp them. The Edith, in this instance, was loaded within 18 or 20 inches of the water level, and therefore fit only for the comparatively calm waters of canals and rivers, and in no sense seaworthy for the contingencies likely to be met in a voyage to New Haven. In addition to this, she was a little deeper by the head, and the storage of coal far forward in her “stable,” where cargo was not designed to be loaded, was only balanced by a quantity of coal on deck aft, liable to be washed overboard; and when this happened the further consequent sinking of her bows greatly added to her peril. This was, in fact, the precise and immediate cause of her sinking in the storm of the morning of the 9th.
Whatever may be the liabilities of the respondents in other respects, the libellant is responsible for this overloading and improper loading; and where it is shown, as in this case, that it was one of the factors which directly contributed to the loss, he must be hold chargeable with negligence, whatever maybe the faults of others. The fact that some of the other boats of this tow wore also laden nearly as deeply and had coal upon their decks, or the fact that boats so laden
In the case of Mason v. The Steam-tug Murtaugh, 3 Fed. Rep. 404, and in Williams v. The Steam-tug William Cox, Id. 645, it was held by my predecessor that the owners of tugs are chargeable with negligence in undertaking the towage of vessels upon trips for which their unfitness is obvious; and that due protection of life and property requires that in such eases both parties shall be chargeable with the loss. And this rule has been recently affirmed upon appeal by the experienced judge of this circuit. The William Cox, 9 Fed. Rep. 672. In those cases the tugs were held liable for undertaking to cross New York bay in rough water with barges less deeply laden than the Edith, although in those cases the barges had open decks. But the contingencies of a voyage upon the sound render a trip to New Haven with barges loaded like the Edith still more hazardous. When the loss of a boat was reported in New York on the morning of the 9tli, the captain of the Ackerman said he knew it must be the Edith, and he testified that her overloading had been a subject of comment on the way up to Port Morris. It does not lie, therefore, in the mouths of the respondents, at least, to question the hazard to the Edith in the situation at Port Morris. No amount of care and good judgment are sufficient to insure a safe journey for a craft so ill adapted for such a trip. Loss of life and of the property of those engaged in this kind of navigation is but too frequent. While this case was upon trial such a loss occurred; while writing this decision still another is reported. Humanity, as well as the protection of property, demands that the rule above referred to shall be applied unhesitatingly in all cases where boats are received for such towage in a condition obviously unfit to encounter the known hazards of the voyage.
The respondents in this case are still further chargeable with negligence for leaving the tow unguarded, and without the protection of any tug at hand to render aid in case of need, in a situation like
Although according to the evidence nothing was said about stopping at Port Morris when towage was engaged, I think the proof of custom is sufficient to warrant the tow being taken in sections through Hell Gate to Port Morris, and there made up for the rest of the trip. It could scarcely have been supposed by the libellant that his boat, and the other boat for which towage was at the same time engaged, were to he taken through to New Haven by themselves. They are chargeable, therefore, with notice of the custom proved, and must have expected to conform to it. But while this eustom warrants a sufficient stop to get together and make up the whole tow designed to be forwarded, it does not warrant any detention beyond a reasonable time for that purpose. It certainly does not warrant the temporary abandonment of the tow to its chances in a situation known to ho unsafe in one quarter, nor a return to New York to soek other boats for the same journey, and to wait there till they may he ready to proceed, while the tow is left unattended and helpless.
The weight of the evidence in this case is that the two additional boats which were afterwards taken in this tow wore not brought up to Port Morris until the afternoon of the following day. This was a detention of the boats previously brought up altogether unreasonable and unjustifiable; and it affords strong ground for the surmise that the exclusive reason why the tow was not taken forward to New Haven on the 7th, was not any uncertainty about the weather, but the desire to obtain additional boats for the trip; and the captains of the tugs admitted this to he one reason. All the witnesses on the part of the libellant testify that the day when they were taken to Port Morris was pleasant, and that there were no appearances of a storm, and the 7th is shown by the records to have been in fact a day suitable for the continuance of the trip. Cautionary signals, it is true, were set at the signal service station in New York, hut not until 9 :47 a. m., long after the pilots had passed them, and they could not have known of these signals so as to be influenced by them in returning to the city; and as these signals were lowered at 7: 15 p. xr. and the wind was south-west all day, and the weather fair, they probably indicated only distant atmospheric disturbances. But even if the tow were taken to Port Morris on the 8th, the day before the storm, as the respondents’ witnesses claimed, the respondents would still he
The case of The Mechanic, 9 Fed. Rep. 526, to which I have been referred by the respondents, differs so essentially from this case, as respects the safety of the harbor where the tow was moored, that further consideration of it is unnecessary.
According to the rule applied in admiralty in cases of contributory negligence on each side, the libellant is entitled to recover half his damages and costs.