279 F. 94 | 4th Cir. | 1921
This is an appeal from a decree of the United States District Court for the District of Maryland, in admiralty, whereby the appellant was adjudged liable for the loss of the barge Curtin, belonging to Dempsey & Sons, and its cargo of fertilizer, belonging to the Miller Fertilizer Company, the appellees. Separate
The facts are, briefly, that on or about the 2d of March, 1920, the master of the barge Rita Dempsey, acting for himself and the captains of the barges Charles C. McNally and William W. Curtin, made a verbal agreement with the Maryland Transportation Company, the appellant, whereby the company agreed to tow three barges from Baltimore to Norfolk; the barge captains claiming that the contract was for the services of the tug Baltimore, and the appellant that it was for the Baltimore or the Seminole. About 8 o’clock on Friday morning, the 5th of March, the Seminole reported to take the barges in tow, and, after some question as to the right of the tug to serve, the objections were dropped; the masters being assured that the tug was of sufficient capacity to perform the service, and as powerful as other well .known tugs. The barges Dempsey and McNally were not fully loaded, though, the Curtin was about to its full capacity.
When the Seminole left Baltimore with the three barges in tow, the weather was cloudy, storm signals up, and the barometer falling, and it had been low for several days, which fact was known to the master and the owner of the Seminole, though neither of them made any inquiry respecting the weather signals before the tug left. The master of the Seminole explains that he thought the indications pointed to the probable existence of a heavy fog, which in point of fact did increase after the tug’s departure. They started with the intention of going to North Point, and there be guided by the weather conditions. With the exception of the fog, the weather remained favorable, until between 2 and 3 o’clock in the evening, when about halfway between Baltimore Light and Sandy Point, the wind started to blow from the northwest, constantly increasing in velocity, and between 4 and 5 o’clock, it reached the proportions of a gale. The master of the Seminole claims to have headed to the wind, with a view of making harbor round Hackett’s Point, in White Hall creek, but, failing in this, endeavored to. enter the Severn river to anchor. This was found to be impracticable, and he cast off the barges, and with difficulty, as he claims, succeeded in making into Annapolis with the tug in safety. The three barges anchored, after considerable drifting, the Dempsey off the mouth of the Severn river, further into the bay than the others, and the McNally and the Curtin drifted somewhat to the westward of Kent Island, and some two miles from the Dempsey; the Curtin fetching up some quarter of a mile further outshore from the Island than the McNally.
On the tug’s reaching Annapolis, the master ’phoned the Baltimore office, and informed Mr. Petty, vice president, of the conditions existing, and was directed by him to look out for the barges as soon as the weather moderated, which he promised to do. The storm continued through Friday night, and until late Saturday evening, at which time the tug went out to see about the tow. Upon interviewing the master
The District Court held the appellant solely at fault for the loss, denied the right to limitation of liability, and entered a joint judgment against the appellant for the agreed value of the cargo, of $15,101.82, and the barge, of $11,200. From that decree, this appeal was taken.
“To excuse a tug for leaving and remaining away from lier tow, there should be proof that the tow was sinking, or past saving, or that the tug was so injured or in such danger that it could not stay or return, or similar condition.”
In Appeal of Cahill, 124 Fed. 63, 64, 59 C. C. A. 519, 520 (C. C. A. 2d Cir.), the court said:
“Even if the circumstances had been sufficient to justify the master of the tug in cutting loose from the dredge in order to take off the men, they did not justify him in deserting her and her scows and allowing them to be beached without any effort to save them. We are satisfied there was a reasonable chance that they could have been saved if the tug had resumed charge of them. Their owner was entitled to the benefit of the chance, and as- he has been deprived of it by the conduct of the tug, in disregard of her duty to use all reasonable efforts for the preservation of her tow, the tug must respond for the consequences, in the absence of clear proof that her efforts would have been ineffectual.”
In Alaska Commercial Co. v. Williams (C. C. A. 9th Cir.) 128 Fed. 362, at page 368, 63 C. C. A. 92, at page 98, the court, considering the length of time the duty to look after the tow lasted, said:
“It certainly existed during that day and so long thereafter as the schooner continued to drift toward the shore or to proceed on her course toward Yakutat, and so long as the Bertha could have returned and rescued her.”
“It must be remembered that the courts have held tugs to a high degree of diligence in endeavoring to save a tow which has gone adrift. Usually the tow is helpless, and to abandon it is to commit it to almost certain loss or injury, where a gale is on and the sea is rough.”
See, also, The Richard F. Young, supra (D. C.) 245 Fed. 499, 502.
The decision of the lower court will be affirmed, with costs. Affirmed.