298 F. 743 | 2d Cir. | 1924
(after stating the facts as above). 1. As to the Director General: Under section 15 of the Act of March 3, 1899 (Comp. St. § 9920), it was the duty of the owner of the Harry “to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned. * * * ” It is settled law in this circuit that the duty thus imposed by the statute cannot be delegated. No question arises here as to knowledge of the owner, because the admitted fact is that the owner was informed of the wreck on the day of the accident and took appropriate steps to perform its duty. It is plain, therefore, that there was no duty cast upon the Director General to maintain either the buoy or the light on December 20th. The Anna M. Fahy, 153 Fed. 866, 83 C. C. A. 48; The Macy, 170 Fed. 930, 96 C. C. A. 146. See, also, The Drill Boat, No. 4 (D. C.) 233 Fed. 589.
The only theory upon which the Director General could be held was that he was guilty of negligence in permitting the tow to swing in such a manner as either to extinguish the light, if it was night, or to obscure the buoy, if it was still daylight. The evidence is overwhelming that the tow was well clear of the buoy, probably about 150vfeet. There is, of course, the familiar conflict of testimony based on estimates, as to how far the buoy was from the wreck. If, contrary to statutory requirement, the buoy was 75 to 150 feet from the wreck, as testified to on behalf of libelant, the responsibility was not that of the Director General, nor, for that matter, of the owner. The Plymouth, 225 Fed. 483, 140 C. C. A. 1. We are satisfied, however, that the buoy was over the wreck.
The testimony of libelant’s witnesses as to not seeing the buoy or .the-light is not convincing; but, passing that inquiry, we think the mute facts as to conditions of tide and wind bear strongly in favor of the Director General. The tide was strong ebb on December 20, 1918. It was low water at Governor’s Island at 4:28 p. m. The tide continues to. run out of the North River for 3 to 3% hours after low water at Governor’s Island. At or about 5 p. m., therefore, the tow ■ must have been tailing down the bay and well clear of the wreck and buoy. Indeed, two hours later, according to Welsh, the master of
Without further analysis, we may state that the record fails to disclose any negligence in this or any other respect on the part of the Director General.
2. As to Mesick: It is stated in the brief of libelant that the sun set on December 20, 1918, at 4:30 p. m., and that it was dark when the accident happened. After having testified that the accident^ happened about “six or seven minutes” after 4:45 p. m,, libelant’s witness Sutherland, deck hand on the Kennedy, was asked, “Daylight?” and • answered, “Yes; just breaking.” He was then asked, “But it was daylight?” and answered, “Yes; it was daylight; yes.”
Bothwick, the master of the Kennedy, testified that he had set his running lights and it was “just about to make dark.” On cross-examination he was asked, “Q. It was dark enough, so that you think it was necessary to have a light on that spar?” and answered, “Yes, sir.” However, an hour or an hour and a half later, when it was “real dark,” he said he could make out this spar buoy without a light on, 125 to 150 feet away, because “you can see z. buoy that far.”
Littlefield, master of the tug Daniel McAllister, testified, as to his own tug: ' •
“We Was putting them [the lights] up. It was between sunset and dark.”
Welsh of the Ganoga testified:
“Well, looking from the position I was looking, it was just sunset, and I . was looking towards the westward, which enabled—I thought it gave me a Hotter view, looking toward the sun than looking the other way. I could clearly see the Kennedy; it was not dark; 'it was getting dark, but I could see a distance from above Ellis Island down to where the Ox was. * * * Yes; it,was daylight enough for that.”
Sadie Ogden, for the Director General, testified:
“It was plain; it was light; it was not dark.”
The foregoing is a summary of all the testimony on this point. From what has been quoted supra, we think the conclusion is-irresistible that the buoy could have been seen from the Kennedy, if proper diligence had been used, and that, as it was still daylight, the question as to whether or not the lantern was lighted became immaterial. We may add, however, that the court is not satisfied that the libelant sustained the burden of proving that the light was not burning.
We think the owner of the Harry did all it was obligated to do, and that no facts have been produced to charge it with liability.
Decree affirmed as to Mesick, without costs, and reversed as to the Director General, with costs.
