17 F.2d 253 | 5th Cir. | 1927
The steam tug Mariner, having in tow a dredge, three barges, 18 pairs of pontoons, an anchor barge, and a launch — the tow being between 600 and 700 feet in length — started from Lynehburg, Tex., for Galveston at about 5:30 in the afternoon of November 19, 1924. Between 8 and 9 o’clock that night, after the tug with its tow had passed Morgan’s Point, the tug went aground in the bank to the side of the channel, and remained aground there until about 7 o’clock the next morning, when, after being pulled off by another tug, it proceeded on its voyage -with the tow. The weather was good when the voyage was started, and when it was resumed after the grounding, there being no sign of a weather disturbance at either of those times, or until about 11 o’clock in the morning of November 20th, when a wind, a norther, began to blow, increasing to 25 or 30 miles an hour.
It was conceded that, if the tug had not gone aground, the towage would have been completed in about 10 or 12 hours, and the tug and her tow would have reached Galveston several hours before the norther started. The Mariner having been libeled for the damages sustained by the craft in tow, the court ruled that the grounding was due to negligence chargeable against the tug, that the tug was liable for the slight damage sustained at the time of the grounding, but was not liable for the damage of which the norther was the direct cause, the court being of opinion that the delay could not be considered the proximate cause of the injury to the pontoons, and that the sudden blow of wind or squall was an independent intervening, and the sole proximate, cause of that injury.
There is an irreconcilable conflict in the decisions on the question whether one’s negligent delay in performing an undertaking to transport things does or does not render him liable for the results of the consequent increased or more prolonged exposure of those things to the hazards of unfavorable changes in weather conditions. Many conflicting decisions on the subject are referred to in the opinion in the ease of Shoe Co. v. Railway Co., 130 Iowa, 123, 106 N. W. 498, 5 L. R. A. (N. S.) 882, 8 Ann. Cas, 45. The proper answer to the question whether negligent conduct is or is not the proxitnate cause of an injury which follows it largely depends upon the special facts of the ease in which the question is presented. Insurance Company v. Tweed, 7 Wall. 44, 19 L. Ed. 65. If the misconduct is of a character which, according to the usual experience of mankind, is calculated to afford an opportunity for the intervention of some subsequent cause, the subsequent mischief may be held to be a result of such misconduct. Atchison, etc., Ry. Co. v. Calhoun, 213 U. S. 1, 29 S. Ct. 321, 53 L. Ed. 671.
The length of the tow and the number and kind of craft composing it made the tow-age a hazardous one, and called for the exercise by the tower of due diligence and a very high degree of care. The owner of- the towed vessels, in offering them for such a towage, assumed the risk of all necessary exposure, but did not consent to their being subjected to hazards which could be avoided by the exercise of reasonable diligence, care and skill on the part of the tower. The W. J. Keyser (C. C. A.) 56 F. 731; Peace River Phosphate Mining Co. v. Mulqueen (C. C. A.) 285 F. 102; The Plymouth (C. C. A.) 186 F. 105.
The effect of the negligently caused delay was to extend the time during which the towed craft were exposed to the hazard resulting from a squall or increased velocity of wind. The towing undertaking necessarily involved exposure to such a hazard during the time reasonably required to complete the towage. Such a wind as was encountered not being an extraordinary event in that locality in November, it was reasonably to be anticipated that it might occur either during the 10 or 12 hours reasonably required to complete the towage or during the additional time the towage actually was in progress. This being so, the hazard of such an occurrence was increased by prolonging the time of exposure to it.
In the ordinary course of nature, such a squall or norther being likely to occur while the towage was in progress, the happening of such an ordinary operation of a force of nature during any part of the time the towage was in progress cannot be regarded as an independent intervening cause. The prolongation of the towage beyond the time reasonably required to complete it being an act which, according to the usual experience of mankind, would expose the tow to the hazard of such an event happening after the expiration of the time reasonably required to complete the towage, the prolongation of the towage was not kept from being a proximate cause of the injury sustained by the fact that the happening of such an ordinary and not improbable event concurred in producing that injury.
One is chargeable with knowledge of the usual effect of ordinary natural conditions or forces upon his negligent act or omission, and is held to have contemplated the appearance and the effect of such conditions and forces upon his negligence. Atchison, etc., Ry. Co. v. Calhoun, supra; Bowen v. Smith-Hall Grocery Co., 141 Ga. 721, 82 S. E. 23, L. R. A. 1915D, 617; Benedict Pineapple Co. v. Atlantic C. L. R. Co., 55 Ela. 514, 46 So. 732, 20 L. R. A. (N. S.) 92; Fox v. Boston & Maine Railroad, 148 Mass. 220, 19 N. E. 222, 1 L. R. A. 702; 22 R. C. L. 140. We conclude that the injury to the pontoons was attributable to the extension i>f the time during which the tow was exposed ,to the natural and ordinary hazards of the towage undertaking.
We concur in the court’s finding from the evidence that the grounding of the tug and
Reversed.
