Horan v. Hughes

282 F. 1000 | S.D.N.Y. | 1921

LEARNED HAND, District Judge

(after stating the facts as above). [1] First, as to the dispute between the libelant and the charterer: Mr. Purdy does not question under the charter that the bargeman was the agent of the libelant when originally hired. I .think it equally ■plain that the substituted bargemen, including Murray, who was on board when the accident happened, were also the agents of the owner. It is true that the charterer chose him, but he chose him with the consent of the libelant, and in accordance with a practice of some standing whenever an occasion arose, and it is quite dear that no other system was possible, considering how transitory is the employment ■of these men, and the fact that they might leave wherever a barge happened to be. Unless the charterer had the right to substitute a bargeman, his use of the barge would be much limited. This the libelant recognized, and clearly consented to substitution at the choice of the charterer, by continuing to pay the wages of those so chosen.

In this view the charterer’s duties extended to no more than reasonable care in the selection of a competent man, and there is no just ground to challenge the selection of the charterer in this particular case. Individually, neither the libelant nor the charterer is at fault for the fault of Murray, but, as Murray was in law the agent of the libelant, his fault is by law charged against him. Therefore the charterer appears to me to have made a good excuse for his failure to return the barge, and against him I dismiss the libel.

[2] Two faults are charged against the tugs: First, in the make-up of the barges; and, second, in failing to ascertain that Miurray had done his duty in lengthening out the. whole of his hawser. I shall assume that the barge broke loose because the hawser was too short. There is no certain evidence of this, but the case has been so treated, and I think Horan’s evidence is sufficient, who saw upon the stranded barge a substantial part of the cable still coiled. Unfortunately, Miurray has disappeared and his testimony does not help on this issue.

The first question is whether the make-up of the tow contributed to cast away the barge. There was considerable testimony on the trial of the desirability of having stern bridles upon the sterns of the first and second barges, so that the lead'should be from midships to the midships fbrward bitt of the following barge. But there is^ no proof whatever that this is a universal or even a general custom in making up tows, and, although conceivably it is a better practice, I fail to see how it would lessen the strain upon the connecting hawsers. So far as I can see, all that it would do would be to drag the barges somewhat askew. But that does not seem to have contributed to the accident here. It is clear that any improvised bridle such as was suggested by some of the witnesses would be much worse than none, and I agree with those witnesses who say that, even when the. barges are light, it would be likely to result in chafing through the hawsers.

[3] The case against the tug, therefore, resolves itself into the care which she used to see that the hawser was lengthened. It was universally assumed by all the witnesses that the hawser should have been put out to its full length. Hallowell had given contrary orders between Boston and the Cape Cod breakwater, but he expressly limited his directions to that part of the voyage, and gave his reasons, which did not obtain beyond the Cape Cod Canal. It seems to me, therefore, that when the order came to lengthen hawsers, beyond Buzzards Bay, Murray had no reason to suppose that the previous order remained in force, and every reason to suppose that it did not. Common nautical knowledge should have told him that he must lengthen out the-, whole hawser, which apparently he failed to do. Whether this was^ because he was lazy and found it more convenient to use the old length or whether he misunderstood Hallowell’s order, of course no one-knows, but it makes no difference. The bargeman of the second barge made no mistake, and did not misconceive the order to use the whole of his hawser, and, although there was greater strain upon it, he rode' through safely. I think, therefore, that the tug was not at fault for failing to give proper orders.

The last question is whether the tug used sufficient care to see that her orders had been carried out. The customary way is to accept the-signal of the forward barge, relayed, as it should be, from the stem1 barges, and this the tug did. The fault charged against her is that she did not observe the failure of the rear barge to conform. Looking aft from the pilot house of the tug, her master could see only a group - or cluster of seven lights tailing in his wake. Two of these were on the first barge, two on the second, and three in the third. I accept the statement of the master and of the deckhand that it was impossible-to tell how far away from the middle barge the three rear lights were. It was raining and dark, and those lights were nearly half a mile away. There was no opportunity for any perspective under those circumstances, and the tug, having got the proper relay answer, had the right to assume that all had been properly done.

But it is argued that the tug, having a searchlight, did not use it. There is no evidence as to how far the searchlight would carry, except the fact that the floating barge was subsequently picked up by it. One.expert witness, Milliken, said that, if he had had a searchlight, he should certainly have used it, and that he thought it was the proper thing to do; but neither he nor anyone else could say whether this light would have carried back far enough to see whether the third barge had lengthened her hawser. Moreover, to see it at áll, the tug would have had to change her helm, as her smokestack stood in the way of the searchlight, if she was dead ahead of her tow.

I think the charge is too speculative to be the basis of fault. In the first place, it seems to me within the limits of proper care by the tug that she should have relied upon the answer which she got. She had a right to assume that in so simple a duty as lengthening out of the hawsers the bargemen had done their duty. I will not say it would not have been an added caution to use such other means as she had to make assurance doubly sure, but I cannot think that it was necessary. But it is not necessary to rest'the case .on this. We do not know whether the searchlight would have shown anything more than the towing lights themselves. That depends entirely upon what its range was, and how far in the night it would have disclosed the position of the third barge. That necessarily rests wholly in speculation, and as the burden is upon the libelant to make out a case against the tug, I think she fails.

Finally, I am not quite clear as to what the tug could have done, had she found out that the barge had not followed orders. She clearly could not have left the barges without motive power. All she could have done was again to give her order to lengthen out. Whether this would have induced the bargeman to do his duty the second time is open at least to question. Possibly he would have understood it; possibly he would not. Certainly the loss resulted primarily from his failure to obey orders, and it seems to me merely supposition whether a repetition of the order would have had any different result. For these reasons, I think that the case against the tug has not been made out, and that the loss should fall upon the principal of the bargeman.

It results that the libel should be dismissed, with costs.

(gu-oFor other oases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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