278 F. 895 | 2d Cir. | 1922
(after stating the facts as above).
The matter is one of degree; doubtless the Murray’s master would have been justified in doing what Keene told him to do, if it were merely a matter of judgment in detail; but to leave the helpless steamer without a stern tug in the narrow waters of Erie Basin was navigation so obviously bad that unnecessary obedience to orders therefor was lack of reasonable skill in towboat craft.
But further, the Murray was not justified in interpreting even what her master declared Keene said, as meaning that the tug was to go on the port quarter as soon as' the steamer cleared the slip; reasonable skill required the words to mean that the Murray should get on the quarter when the Procida was “out,” not of the slip, but of the basin. The necessity for the Murray’s being where she was not wa.s so obvious, and Keene’s order as testified to from the Murray so very wrong, that we find as matter of fact that the tug did receive directions as claimed by Keene; a finding of fact which, for another reason, fixes responsibility on the Murray.
This part of Mr. Timmins’ contract, i. e., the agreement to supervise the job, is a separate ánd distinct thing, although included in what the parties would doubtless call a “towing contract”; for not only did Mr. Timmins by the engagement to “transport” the steamer promise to furnish several tugs, but he also promised to furnish some one who would tell all the tugs what to do.
From this result Mr. Timmins seeks escape by insisting that Capt. Keene, while on the steamer’s bridge, was an independent pilot in charge; the corollary being that for the acts and omissions of such pilot no one is responsible but the pilot himself.
Undoubtedly Keene is a pilot, his license gives him the title; as plainly he was not the compulsory pilot of The China, 7 Wall. 53, 19 L. Ed. 67. He was á voluntary pilot, for whose acts or omissions doubtless the ship guided by him is responsible to third parties. Homer Ramsdell, etc., v. Compagnie Generale, 182 U. S. 406, at 416, 21 Sup. Ct. 831, 45 L. Ed. 1155. If Keene were a pilot voluntarily furnished by Mr. Timmins and without compulsion accepted by the Procida, so that Keene piloted as Timmins’ agent, plainly the latter is responsible (cf. The Manchioneal, 243 Fed. 801, at 806, 156 C. C. A. 313).
The contention that Capt. Keene was an independent pilot seems to us wholly based upon inferences from the fact that he demanded and received $5 for his services. The evidence is quite sufficient for us to recognize the well-known custom of tugmasters in this harbor obtaining, or at least requesting a similar recompense, when transporting vessels from one harbor berth to another»
The crucial inquiry is whether men like Capt. Keene get the $5 because they are licensed pilots or because they are in command of the leading tug engaged in the transportation. The answer is plain: they are only paid because they are furnished by the employing tug
The decree is affirmed as to the distribution of liability.
The appellant herein further complained of the assessment of damages, and this portion of the appeal was heard before HOUGH, Circuit Judge, and AUGUSTUS N. HAND, District Judge.
No doubtful question of law is raised by any exception to the commissioner’s report, which was substantially confirmed by the District Judge.
There are three contested items: (1) The cost of repairs; (2) de-murrage, i. e., loss of use of the Procida; (3) allowance of interest.
The Procida’s hull was injured only in respect of certain plating. The cost of repairing these plates is not disputed, but in order to get at the injured portion of the hull it was necessary to remove, and subsequently replace, and test some of the newly installed refrigerating apparatus. This item is in dispute.
This whole plant was evidently something of an experiment, and the work of removing and replacing so much of it as was necessary to repair the steamer’s hull was done without any record of actual days’ work. We find that the only method of stating the expense to which libelant was put in respect of this refrigerating plant is by expert evidence, and down to date of commissioner’s report libelant never paid any hill in the premises.
The rate per day for detaining the Procida is agreed upon. The only question is as to the number of days she was actually and necessarily detained by reason of the collision. This is a very doubtful matter, for the libelant has the advantage of having actually remained in port the number of days allowed, when, from all the testimony, it was more profitable to go to sea. We are not able to say that the matter is so clear as to warrant disturbance of the commissioner’s findings, and the exceptions are overruled as to the amount of demurrage awarded.
As to interest, we think exceptants and appellant have shown good cause for refusing a full allowance. It is substantially admitted that there was great delay in the assessment; more than three years and a half intervened between interlocutory and final decrees, and for such
The cause will be remanded to the District Court, with directions to modify the final decree as herein indicated, and, as modified, said decree is affirmed. Appellants will recover the costs of this court as against libelant. No other costs.