269 F. 665 | D. Maryland | 1920
The libelants in these consolidated cases seek compensation for the barge Curtin, and for its cargo of fertilizer lost when, on the 7th of last March, it foundered in the Chesapeake, in consequence, as is alleged, of the default of the respondent’s tug Seminole. The respondent denies liability, and in the alternative seeks to limit it to the value of the tug.
The master of the barge to whom he first spoke testifies that, as the Seminole passed upon its return from the direction of the Curtin, its captain told him that both the other barges had sunk, and that nobody was aboard either of them. Neither of these statements was the fact. The truth was, in all probability, that he never went near enough either of the barges to form any accurate opinion as to what their condition was. He went back to Annapolis, and from there telephoned to the tug’s owner in Baltimore that the barges were out in the bay, and that he had not coal enough left to complete the voyage to Norfolk. He was ordered to come back to Baltimore, and was told that another tug would be sent for his charges. On the next Sunday, apparently in every respect a pleasant day, he took his boat to Baltimore. At 4 o’clock in the afternoon, the Curtin, whose weight had been greatly increaséd by the ice which formed upon it, and whose pumps were frozen, went down, and its cargo became a total loss. On the next day, Monday, the respondent sent another tug to look after the barges, and the two which were still afloat were taken in charge without difficulty.
The owner of the barge claims that he contracted for the services of the tug Baltimore, a larger and more powerful boat than the Seminole, and that, when the latter was sent, the master of the sunken barge did not accept its service until he was assured that it was strong enough for the work. • If there was any breach of duty in this respect, it was that of the respondent. In fair weather, the Seminole was doubtless equal to the task of towing three such bargeá to Norfolk. It was a mistake for it to try to do so under the weather conditions to be expected when the trip began; but that appears to have been the blunder of the master rather than- of the owner. Under stress, the former proved incompetent; but there is no reason to believe thát before the event the owner had any reason to suspect that he was. The owner seems to have exercised reasonable care in selecting him.
But, if, on this point, the owner is entitled to a verdict of not guilty, or at least, not proven, how is it with its failure to see that the barges were looked after on Sunday?
The owner, that is to say, its president and its executive officer, whose privity and knowledge is for the purpose at hand that of the owner, was told by the captain of the Seminole on Saturday, by telephone from Annapolis, that he was not sure that one of the barges was all right. Nevertheless, as that captain reported that he was short
The petition for limitation of liability must be denied.