200 F. 840 | D. Me. | 1912
The libelant’s barge No. 8 left Bath on the morning of July 7, 1910, loaded with a cargo of 1,417 tons of coal, drawing 15.9 feet forward and 16.9 feet aft, in tow of the Perry, a steam tug of the Knickerbocker Steam Towage Company. The tug had undertaken to tow the barge to Gardiner, her port of discharge. Upon reaching a point nearly in the center of the Kennebec river at Dovejoy’s Narrows, about 12 miles from Bath, and while passing over that part of the Narrows known as Old Dry Rock Dedge, the barge struck her port bow on an obstruction. She slewed out about 2 feet forward, and listed about 2 feet to starboard, and began to leak. She remained grounded about three-quarters of an hour, when she was floated off by ihe tide and towed to her destination at Gardiner. The libel alleges that the injury occurred in consequence and by fault of the towboat, and also by reason of an obstruction left in the Narrows by the Eastern Dredging Company while at work under a contract with the. United States for the improvement of navigation at that point. The libelant charges the Towage Company with negligence, in that it attempted to tow the barge through Dovejoy’s Narrows, and grounded her on a shoal on the southwesterly part of Old Dry Rock Dedge, where there were at least 3% feet less water than there had been before the commencement of work by the Dredging Company, and at least 6J4 feet less than the Towage Company expecte.d to find at the time of the grounding, and that the "Towage Company did this with knowledge that changes had been made in the bottom of the Narrows, but without knowledge, or inquiry, whether the Dredging Company had completed its work, or in what condition it had left the river bottom, and without knowledge whether there was enough water to permit the safe passage of the barge.
The libelant charges the Dredging Company also with negligence in that, after blasting on the southwesterly part of Old Dry Reck Dedge, it stopped work and left the place, without cleaning up the rock, thrown up by the blasting, and without causing soundings to be made to ascertain the condition of the bottom, and without exercising care in marking the dangerous locations of the obstructions caused by such blasting, and without giving notice to vessels navigating the river of the dangers to which they would be exposed in passing over that part of the Narrows. And the libelant alleges that in consequence of such negligence on the part of the Dredging Company, the barge grounded at a point where there were only 11.6 feet of water at low tide, and where there had previously been at least 14.9 feet of water.
Its tugs were the only steam tugs engaged upon the Kennebec river in towing vessels of the class of barge No. 8. The testimony tends to show that neither the manager of the Towage Company, nor the master of the tug, nor any one of her crew, had any accurate knowledge of the condition of Dovejoy’s Narrows at the time the towage service was undertaken. It appears from the evidence that the Tow-
In The Naos (D. C.) 144 Fed. 292, the court in this circuit reviewed the law upon this subject. Winslow v. Thompson, 134 Fed. 546, 67 C. C. A. 470; The Adelia, Fed. Cas. No. 79; The Effie J. Simmons (D. C.) 6 Fed. 639; The Henry Chapel (D. C.) 10 Fed. 777; The Somers N. Smith (D. C.) 120 Fed. 569. The Supreme Court has passed upon this subject in The Margaret, 94 U. S. 494, 497, 24 L. Ed. 146, Davidson Steamship Co. v. United States, 205 U. S. 187, 194, 27 Sup. Ct. 480, 51 L. Ed. 764, and Atlee v. Packet Co., 21 Wall. 389, 396, 22 L. Ed. 619. In Susquehanna Coal Co. v. Eastern Dredging Co., 200 Fed. 817, an opinion was handed down by Judge Dodge in the Massachusetts district, in July, 1908, which does not appear to have been published, in which he says:
“The Devon was without motive power of her own, her navigation was wholly under the tug’s control, all her movements were subject to the tug’s direction, and there is no suggestion of any independent action on the Devon’s part, having a tendency to cause her to run aground. Under such circumstances, the fact that the Devon grounded raises a presumption that the tug was negligent, as in Burr v. Knickerbocker, etc., Towage Co., 132 Fed. 248 [65 C. C. A. 554], and The W. G. Mason, 142 Fed. 913, 915 [74 C. C. A. 83]. The burden is on the tug to explain the cause of the disaster.”
In The Murell, 200 Fed. 826, January 10, 1911, Judge Dodge held that the tug was bound to know the risks attending the attempt to take the barge through a dangerous passage, and was bound tc use the degree of care and skill necessary to avoid those risks. He followed the same line of reasoning as in Susquehanna Coal Co. v. Eastern Dredging Co., although he states the familiar rule that damage to a vessel while being towed does not, under ordinary circumstances, raise a presumption of fault on the tug’s part.
In cases where the cause of the injury is obscure, it has often been held that the result is a safe test by which to judge the character of the act causing it, as was stated in The Steamer Webb, 14 Wall. 406, 414, 20 L. Ed. 774, and it is often held that unusual 'circumstances connected with the grounding of a vessel put the burden upon the tug
In its answer the Towage Company seeks to limit its liability, if any, to the value of the steam tug Perry, and its right to such limitation does not appear to be disputed. It seems to be assumed that the damages sustained by the barge considerably exceed the value of the Perry. I suppose further evidence will be brought before the court touching the value of the Perry.
The duties and liabilities of the Dredging Company arise under the general principles of law. But the contract of that company with .the United States, to which I have already referred, has some suggestive, and indeed probative, value. Under this contract the Dredging Company was to excavate certain portions of the ledge in the bottom of the river at Eovejoy’s Narrows, in order to bring it down to a depth of 18 feet at low water. The contract provided that: '
“The contractor will not be allowed to unnecessarily obstruct or inconvenience navigation at any time, * * * and he shall at all times leave a practicable open channel way for vessels through the Narrows. The contractor shall be responsible for any failure or neglect of the above requirements.”
In another section it is stated:
“The channel through Lovejoy’s Narrows is narrow and crooked, and- the currents at times are quite swift, making navigation difficult at this locality.”
By the testimony of the manager of the Dredging Company, it appears that the Narrows is an irregular passage with sharp turns; that there is a strong current through there at certain times of the tide, with more or less eddying spots; that such a current affects the steerage of vessels; and that the place is well understood to be difficult of navigation in going up or coming down, especially if the tide is with the vessel. The rise and fall of the tide at that point is from 5 to 7 feet.
Precisely where the grounding of the barge occurred is a matter of sharp contention. Upon the whole evidence, I am of the opinion that the grounding occurred near the center of the river, where vessels of this character had previously gone without injury, and where a shoal had not existed previous to the dredging in June, 1910. After such dredging had been-completed, the company was notified by letter
The testimony leads me to the belief that prior to the cessation of work on the part of the Dredging Company on June 10, 1910, all the blasting of the southwesterly part of the ledge necessary to complete the contract was done, and that none of the rock which had been thrown up from the bottom at that point during the dredging had been removed; and yet the Dredging Company had abandoned the location and left the place of their work, without making a suitable examination of the effect of the blasting. I am persuaded that, as the result of such blasting, shoals were created of a dangerous character, and that sufficient notice was not given to those navigating in that location.
I am convinced by the proofs that the Dredging Company did not give the government sufficient information of the condition of the bottom when it left the work, so that the government. could adopt such precautions to warn navigators as the conditions required. It seems clear that the Dredging Company should have ascertained the state of the river bottom at the locality where the blasting was done, and, if it became necessary to suspend the work, that company should have applied to the government for permission to place buoys there; and that it was its duty to do this in the exercise of reasonable care, under all the circumstances; for the object of dredging was to improve the navigation of the river, and not to impose an added danger.
In Philadelphia, Wilmington & Baltimore R. Co. v. Philadelphia, etc., Co., 23 How. 209, 16 L. Ed. 433, in speaking for the Supreme Court, Mr. Justice Grier said:
“It is a rule of maritime law, from tlie earliest times, ‘that if a ship run foul of an anchor left without a buoy, the person who plaeed it there shall respond in damages.’ ”
This case arose out of damages caused by concealed piles in navigable waters. See, also, Casement v. Brown, 148 U. S. 615, 623, 13 Sup. Ct. 672, 37 L. Ed. 582. The duties of contractors with the government in this behalf are not measured by their contract; such duties to third persons are independent of their contractual relations. Harrison v. Hughes, 125 Fed. 860, 864, 60 C. C. A. 442; Erie, etc., v. City of Chicago, 178 Fed. 42, 101 C. C. A. 170. Such contractors are under the duty to mark obstructions which they are compelled to leave, and to give suitable notice. The H. S. Nichols (D. C.) 53 Fed. 665, 668.
In the recent case, Red Star Towing & Transportation Co. v. Snare & Triest Co. (C. C. A.) 194 Fed. 672,, in spealdng for the Court of. Appeals for the Second Circuit, Judge Noyes said:
*847 "Authority to obstruct a navigably stream by building the abutments of a bridge, which can bo seen and avoided, is not authority to leave such abutments when unfinished and below the surface of the water, without any marie or warning. Authority to obstruct navigable waters by building a breakwater is not authority to leave the new construction without a light. Harrison v. Hughes, 125 Fed. 800 [60 C. C. A. 442], Authority to store piles at the side of a creek or river is not authority to allow them to- remain submerged at high water without any buoy or other mark. In other words, it does not follow from the fact that the respondent was authorized to place the piles where it did that it owed no obligation with respect to them. On the contrary, it was bound to so mark them that vessels navigating the creek would not run upon them without warning; and, in our opinion, this duty was not affected in the slightest degree by the fact that the piles were placed between high and low water mark. They constituted an obstruction to vessels navigating the creek at high water and such vessels were entitled to protection.”
See Inland, etc., Coasting Co. v. The Commodore (D. C.) 40 Fed. 258; North American Dredging Co. v. Pacific Mail S. S. Co., 185 Fed. 698, 701, 107 C. C. A. 620.
I think, too, that the Dredging Company cannot successfully maintain. that vessels could have been towed in safety in some part of the channel. In Omslaer v. Philadelphia Co. (D. C.) 31 Fed. 354, 361, the court said:
“My conclusion from the proofs is that while the Tron City, at the time the disaster overtook her, may not have been in the very deepest part of the channel, she yet was in navigable water, and where she had a perfect right to be. From no portion of the river then navigable by the boat could the defendant company lawfully exclude her.”
See, also, The Mary S. Lewis (D. C.) 126 Fed. 848, 852.
I am constrained by all the testimony to find that the Dredging Company did, in the language of the contract, unnecessarily obstruct and inconvenience navigation, and that, under all the circumstances, it must be held to have been at fault. It is therefore liable for the damages sustained by the libelant’s barge.
3. Was the libelant’s barge No. 8 properly manned and diligently navigated at the time of the grounding?
There was much conflict of testimony upon this subject. The evidence shows that, at the time of the injury, the barge had just come off the railway. She was 193% feet in length, and 34 feet beam; she had a carrying capacity of 1,600 tons. At the time of sailing she was carrying a little over 1,400 tons of coal, and was drawing 15.9 feet forward and 16.9 feet aft. Her build rendered her somewhat hard to tow. The Towage Company, however, was- familiar with the difficulties attending the towage of barges through those parts of the river, where sharp turns were to be made, and currents were to be overcome.
The tug attempted also to tow her with a long hawser. The evidence convinces me that the details respecting the manner of performing the towage service, the way the tug should be made fast, the length of the hawser, the speed at which the tow should be moved, were all determined by the master of the tug.
The whole testimony induces the belief that the barge substantially followed the course pursued by the tug, and thát, if there was any sheering on the part of the barge, or any failure to follow closely in
There is no necessity for discussing in detail the testimony touching this point; I merely state the result. I am satisfied, upon the whole, that the libelant’s barge was not at fault.
4. The court holds, then, that the libelant is entitled to a decree against the Eastern Dredging Company for a moiety of the damages suffered by the libelant, and for a moiety of the costs. The libelant is also entitled to a decree against the Knickerbocker Steam Towage Company for a moiety of the damages, and for a moiety of the costs. If either of the said parties respondent shall be unable to pay such moiety, both of the damages and of the costs, then the libelant shall have a remedy over against the other party for any balance thereof .which may remain unpaid. An interlocutory decree may be entered consistent with this opinion. Fritz H. Jordan is appointed assessor. And he is directed to fix the libelant’s damages, and also to report the value of the steam tug Perry, and of her pending freight, at the time of the injury. Upon the coming in of the assessor’s report, I will direct the settlement of the final decree.