249 F. 437 | 2d Cir. | 1918
Lead Opinion
The libel alleges that William D. Dittmar chartered the scow John J., including the master, to the Frederick Starr Contracting Company for one year; the Starr Company agreeing to return the scow in the same condition as when received, ordinary wear and tear excepted, also by an oral agreement to cover her for the benefit of Dittmar with insurance against marine perils when ■ ever taken out of New York harbor.
Dittmar testified that under this charter the Starr Company had on several previous occasions asked and obtained his consent to take the boat beyond the harbor limits and had paid for the insurance. The respondent does not satisfactorily-meet this testimony. Starr does not deny the previous course of dealing, but only says that neither he nor any one in his office had any conversation with reference to any insurance on this boat on any trip to Oyster Bay. But we are convinced * by Dittmar’s testimony on the subject, in view of the uncontradicted practice on former occasions, as well as of the fact that Mrs. Starr was not examined as a witness.
January 2, 1914, at about 2:30 p. m., the scow was moved from the wharf at Oyster Bay by the Brown Company to a mooring buoy, and lines made fast. The wind gradually increasing, the scow dragged the anchor during the night and until 4 p. m. of the 3d, when the anchor held, but at 10 p. m. the hawser parted and the scow stranded.
Dittmar filed this libel to recover the damages so sustained against the Starr Company, which brought in the Brown Company under the fifty-ninth rule in admiralty (29 Sup. Ct. xlvi). The Starr Company defends on the ground that the master was incompetent and that the scow was moored to an insufficient mooring by the Brown Company. The Brown Company defends on the ground that the mooring was sufficient, but that the master allowed the scow to be made fast to it on too short a hawser, which for that reason parted in the high wind.'
The trial judge held that, though the charter party was a demise, the master of the boat was the agent of the owner, so far as making fast to the mooring buoy was concerned; that the hawser was apparently sufficient; that the mooring anchor was insufficient, for which the Brown Company was. responsible, for whose acts the Starr Company, the charterer, was responsible to Dittmar. He directed a decree for Dittmar for half damages and costs against the Brown Company primarily^ and against the Starr Company secondarily. The Brown Company alone appealed, but at the hearing Dittmar contendéd that he should recover his full damages, while the Starr Company contended that any recovery by him should be against the Brown Company.
Though the mooring anchor did drag at first, it finally held the scow, and the proximate cause of the injury was the parting of the hawser, due to the failure of the master to secure the boat by a sufficient length of line. This could have been done by attaching one of the scow’s lines to the mooring buoy, instead of lifting the buoy on deck and making fast the hawser attached to the scow’s bitts. Thus a safe lead would have been given and undue chafing in the chock prevented. The scow was light and very high out of the water at the how.
The libelant has a right to recover in full from the Starr Company, and there is no liability upon the part of the Brown Company, The court below is directed to enter a decree for damages and costs in favor of the libelant against the Starr Company, and in favor of the Brown Company for costs of both courts against the Starr Company. So modified, the decree is affirmed.
Rehearing
On Rehearing.
We see no reason for changing our original opinion.