49 F. 464 | 2d Cir. | 1891
The barge Richmond Talbot, while being towed'by the tug Joseph Bartram, on a voyage from Stonington to Boston, struck the rocks in Lloyd's channel, about three miles out from Stoning-ton,. and near the east end of Wicopesset island, and was so injured that she sank immediately. Her owner filed this libel against the respondent, the owner of the tug, to recover the value of the barge and her cargo, on the theory that the loss was the consequence of the negligent navigation of the tug. Among other things, the libel alleged that the barge was of the value of.$5,500. The answer, among other things, alleged that the accident was solely due to the carelessness of those in charge of the' barge, in allowing her to sheer from the course of the tug. Upon the original hearing in the district court, the questions principally litigated were whether the -tug was guilty of negligence in taking a course too near the
The assignments of error which raise the question whether the barge was sunk by the negligence of the tug, or in consequence of her own negligence, may be disposed of briefly. Wo agree with the learned district judge that the tug was in fault in going so far to the westward in the channel, and bringing tho barge so near the submerged rocks on which she struck; that the barge was not in fault, hut was navigated with reasonable care and skill by those in charge; and that the disaster was solely attributable to the fault of the tug. The pilot, Sheffield, had never taken a tow through Lloyd’s channel, had never but once gone through there with a steamer, and was not sufficiently familiar with it to undertake to navigate a tug, in an ebb-tide, having in tow a barge
Although the barge was weak and rotten about her deck and waterways, there was no concealment of her condition as an inducement to the towage contract, and it is not shown that she was unfit for the proposed voyage. If the accident had happened in consequence of the infirmity of the barge, or if her condition had been in any respect a contributory cause, — as, for instance, if the shock would not have otherwise caused her to sink, — it might properly be urged that the damages for the loss should be divided. Upon the facts as they are, there is no room for that contention. She was laden with nearly 800 tons of coal, and was carried upon the rocks so that she struck, rebounded, and struck again, at a speed of 5 or 6 miles per hour.
Other assignments of error raise the question whether the libelant should have been allowed to recover, the whole value of the barge and her cargo. It appears that he made no attempt to raise the barge or save any part of her cargo. On the day of the accident he gave notice to the underwriters of abandonment, and that he should claim a total loss under his policy, by which he was insured for $3,000 on the barge. The next day, at the instance of the underwriters, the wreck was visited by a contracting salvor, with a diver, men, and equipment, and an examination made to see if it was practicable to raise the vessel or remove her cargo of coal. The wreckers had no facilities for raising the vessel, but were prepared, to pump out the coal of which her cargo consisted. The contractor reported to the underwriters that the vessel was not worth raising, and that the cost of raising the coal would probably equal its value. There is no reason to doubt that this was an honest conclusion, based upon intelligent investigation. Upon these facts it is quite unnecessary to consider whether it was incumbent upon the libelant to endeavor to raise the vessel or save the cargo. It is undoubtedly the duty of the owner, of a vessel, which has been sunk by the negligent
it has been ingeniously argued that the loss should bo apportioned, because it would have been comparatively small except for the weakness of the barge. Doubtless the loss would have been less if she had been a strong vessel, strong enough to bear sinking without going to pieces. But the libelant is entitled to indemnity for his actual loss. He would not be compensated by indemnity for what he would have lost if his vessel had been more staunch or had been so strong that she would not have been wounded at all. It might as well be contended that the wrong-doer, who strikes down a cripple or runs over a woman in the family-way, is only responsible to the same extent as though he had injured a man or woman normally sound or well; or that he who sets fire to another’s house is not to pay for the furniture, because, if it had been a stone house instead of a wooden one, the furniture would not have been destroyed.
The appellant insists that the libelant should not have been awarded, the costs of the reference before the commissioner, and urges that he was guilty of oppressive and fraudulent conduct upon the reference. We are satisfied by a careful examination of the record that the libel-ant corruptly attempted, by his own testimony, and by the testimony of witnesses in his behalf, whose statements ho did not himself believe to be correct, to exaggerate the value of the barge, and obtain an inordinate compensation for her loss. He wras an expert, thoroughly qualified to judge of the value of such a vessel. Ho knew what she had actually cost, and the appraisal placed upon her for insurance just before she was lost. His own testimony was false in respect to matters as to which he could not well be mistaken. Among other statements, it was untrue that he had ever received the offer for the barge to which-he had testified. His recklessness in disregarding even the appearance of candor is shown by his attempt to prove the value of the barge" at