14 F.2d 1013 | 3rd Cir. | 1926
This is an appeal from the decree of the District, Court in personam against the individual appellees, owners of the steam tugs Caspian and Adriatic and in rem against the tugs.
The libelant appellant was the owner of the tank steamer, Frederick R. Kellogg, which was loaded with crude oil consigned to the Texas Oil Company, whose plant is located on the west shore of the Delaware river just south of Marcus Hook, Pa. Patrick F. Martin was the agent of the other respondents, and managed and operated the tugs for himself and them. The libelant entered into an agreement with him to have the tugs berth or assist in berthing the Kellogg alongside the Texas Company pier, which extended some distance into the river, on her arrival at Marcus Hook from the
“(1) Said tugs were not under the charge of competent persons.
“(2) Said tugs and their masters, who were the servants and agents of the respondents, so navigated the Kellogg that she fetched up on a rock or rocks, the location of which was or should have been well known to them.
“(3) The respondents and their servants and agents failed to make due allowance for the state and flow of the tide.
“(4) The respondents and their servants and agents did nothing to keep the Kellogg from grounding on a rock or rocks, the location of which was or should have been well known to them. ’ ’
The respondents filed an answer denying negligence. The issues were tried before the late • Judge MeKeehan, whose illness prevented him from deciding the ease before his death. By stipulation the.evidence taken before him was treated as if taken before Judge Dickinson, and the ease was reargued before him. He found that ‘ ‘ every proper precaution to inform themselves of the conditions (of the river at Marcus Hook) was taken by the respondents, and that, under the conditions known and which should have been known to them, it was good judgment to attempt to do what was done, and' there was no negligence in it. ” Hence he dismissed the libel.
The libelants brought the ease here on appeal, based upon sixteen assignments of error, which have been summarized in four propositions:
“(1) The Kellogg, while in charge of respondents’ tug master assisted by respondents’ tugs, stranded on a known shoal on the river bottom off the Texas Company pier.
“(2) The government chart shows only 24 feet of water where the steamer stranded, and respondents’ tugs and employees should have known of the danger in attempting to manceuver a steamer drawing 26.6 feet off this pier at low tide.
“(3) Proper soundings were not taken previous to the attempt to berth the steamer.
“(4) The tug owners, respondents, have failed to sustain the burden of proving that the Kellogg stranded on an.unknown obstruction, and that the stranding was without any negligence on their part or on the part of those for whom they are responsible. ’ ’
These propositions are fully answered adversely to the appellant in the opinion of the learned District Judge with which we agree, and therefore the decree is, on his opinion, affirmed.
