Naamlooze Venootschap Maatschappij Stoomschip Barendrecht v. Moran Towing & Transportation Co., 9 F.2d 614

9 F.2d 614 | 2d Cir. | 1925

HAND, Circuit Judge

(after stating the facts as above).

The fault of the Moran and of Reynolds seems to us too well established to require discussion. We think, however, that in those faults the Atlantic must share. We agree that the collision occurred in the channel, and that she was blowing proper fog signals; but we cannot agree that her speed was right in a fog. The District Court found it to have been from 4 to 5 miles an hour, though on her master’s testimony it was less. We think the probabilities coincide with the finding. The Moran was 250 or 300 feet in advance of the Barendrecht, and yet, although the Atlantic made out the Moran, she could not stop her headway before colliding with the ship.

As the flotilla was approaching at a most moderate speed, the Atlantic was at fault. The rule has been many times stated that a steamer in a fog must control her speed, so that she can avoid collision with another; herself observing proper precautions. The Umbria, 166 U. S. 404, 17 S. Ct. 610, 41 L. Ed. 1053; The Chattahooche, 173 U. S. 540, 19 S. Ct. 491, 43 L. Ed. 801 (a sailing vessel); The Pennsylvania R. R. Co. No. 5, 181 P. 833, 104 C. C. A. 343 (C. C. A. 2); The Manchioneal, 243 F. 801, 156 C. C. A. 313 (C. C. A. 2); The City of Norfolk, 266 F. 641 (C. C. A. 4); The Haven, 277 F. 957 (C. C. A. 2). The mere facts seem to us to prove beyond question that the Atlantic’s speed could not have been in proper control.

The faults of navigation being established, the liabilities follow. As to any liability of the Barendreeht, primary or secondary, we cannot agree with the court beíow. It is well established that the tow, if inert and helpless, is not responsible for the faults of the tug. Sturgis v. Boyer, 24 How. 110, 16 L. Ed. 591; The Eugene F. Moran, 212 U. S. 466, 29 S. Ct 339, 53 L. Ed. 600. The fiction, recognized in The China, 7 Wall. 53, 19 L. Ed. 67 does not apply by which the fault of her pilot is imputed to the ship. The case at bar is, however, different, because a pilot was on board, directing navigation. It has been held, even in such cases, and though the master is with the pilot on the bridge, that the ship is not liable, if there is an “independent contract” of towage. The Cromwell, 259 F. 166, 170 C. C. A. 234 (C. C. A. 4); The John D. Rockefeller (C. C. A.) 272 F. 67 (C. C. A. 4). Some of our language in The Edward G. Murray, 278 F. 895, 898, looks the other way, and we are disposed to leave that question open. It is enough in the ease at bar to say that, if any liability is to be imputed to the ship.from the faults of a pilot, employed under an independent contract, it must in any event be limited to faults of navigation which may be charged against her personally. Whether or not her imputed responsibility is to be extended to such eases at all, at least it must be .consistently applied. She cannot be treated as a tort-feasor, unless — taken as a juristic person — she is personally at fault. '

It was not a fault to be without steam while in tow, and there was no other fault which can be charged against her, because her navigation was proper. So we hold that, even under the strictest rule of imputed responsibility, she was in this case innocent, and that the Atlantic may not look at her, primarily or- secondarily.

On the other hand, wo hold the Moran Company in personam for the fault of Reynolds, its agent, employed under a contract which prescribed ordinary care in seamanship, in which ho failed. The Edward G. Murray, supra. The exception in the contract did not exonerate the company. It was limited to ships with steam and “propelling power.” The misquotation of this exemption clause in the letter of January 28, 1920, did not override the provisions of the agreement itself. It merely called attention to the clause without pretending to amend it. Such modifications must ho more clearly expressed.

Finally, the decision of the Supreme Court in Luckenbach S. S. Co. v. Barge Thekla, 1925 A. M. C. 37, 266 U. S. 328, 45 S. Ct. 112, 69 L. Ed. 313, has established the liability of the United States under the cross-libel. Hence it follows that the libels must be disposed of as follows: A decree will pass on the Barendreeht’s libel against the Moran Company and on the cross-libel 'against the United States, each for full damages. The libel of the United States will be dismissed against the Barondrecht, and a decree of half damages entered against the Catherine Moran. The petition of the Barendrecht against the Moran C cimp any, impleaded in the suit of the United States, will be dismissed, in consequence of the dismissal of the libel in that suit against the Barendreeht. The Barondrecht will recover full costs against the Moran Company; otherwise, no costs.

Decree modified in accordance with the foregoing.