40 F. 682 | S.D.N.Y. | 1889
On the night of November 24 to 25, 1888, tbe steam-tug Bordentown, assisted by the Winnie, having in tow a fleet of about 20 canal-boats, bound from South Amboy, through the Kills, to the sea fence, Brooklyn, encountered, on leaving the Kills, a heavy north-east gale, in which all but two of the boats were lost. Large claims for damages having been presented against the Pennsylvania Railroad Company, the petitioners, as owners of the tugs, charging that the loss was occasioned through negligence, a libel and petition were filed in Ibis court to limit the liability of the company for the alleged losses, in case they were held answerable at all, to the value of the Bordentown, the Winnie, and the Willie, or one or more of them, as might be adjudged. The libel further denied that the disaster was caused through any negligence of the tugs, and alleged that, if it was so caused, it was without the privity of the petitioners. The evidence taken is voluminous. It is not necessary to state more than the leading facts that I deem pertinent to the conclusions reached.
The immediate cause of this misfortune was the sinking of the Hughes, the port hawser boat. She bad an open deck, supplied with 18 hatch-covers, but her cargo of coal was so full that the covers could not be fastened down when need for it was found. ITad a safer boat been in the place of the Hughes, and the Bordentown kept on, as at first, without turning, it is not impossible that she might have crossed without the loss of any of tire boats. There can bo no doubt, however, that from the time the mouth of the Kills was reached, there was a strong gale, and a very rough sea. It was at that time nearly 2 o’clock, and the evidence of the Staten Island Ferry pilots furnishes outside proof of the violence of the gale at that time. In judging of the prudence of tlie Bordentown in attempting to cross the bay in such a gale and sucli a sea, regard must be bad to tbe condition and make-up of tbe tow she had in charge; and, considering that so many of them were deeply loaded, had open decks, and that the port hawser boat was of that kind, and was so loaded that her hatch-covers could not be put down, 1 can have no hesitation in finding that it was imprudent and unjustifiable to attempt to come out of tbe Kills, in the face of such a wind and sea.. It is urged that, as the tide in the Kills was at that time ebb, the tow had no alternative but to keep on, because there was no room to turn in the Kills. This is not a sufficient justification. The evidence taken on the part of the respondents satisfies me that there was room to turn this tow before going into the rough water; and, even if it were a fact that there was not room, that would not furnish a justification, but only throw the, fault further back, in not ascertaining whether the wind and weather were proper to proceed, before going so far as to make escape
2. While finding the petitioners liable for the loss, I must further find that they are also entitled to a limitation of their liability, under the act of 1851, (Rev. St. § 4288;) because I cannot, upon the evidence of the respondents, come to the conclusion that there was any negligence in the dispatch of the tow from South Amboy at the time it was sent out, or any insufficiency of the tugs for the purposes of an ordinary trip to New York.' The tugs were not dispatched under any peremptory directions to make the trip through without regard to the weather. On the contrary, it is plain that the management of the tow was under the direction of the pilot of the Bordentown; that he had the entire authority, and that it was his legal duty to take the tow with reasonable prudence, and to proceed, or to lay up at any point on the route, as the weather might require. The Willie laid up her detachment near Port Johnson. Another Ambo}' tow, on the same evening, did the same. The imprudence that caused the loss was simply the imprudence of the pilot of the Bordentown in proceeding into the bay under circumstances when he ought to have stopped short of it. His relation to the petition-' ers was in this respect, therefore, no different from the relation of the master of any vessel who brings responsibility upon her owners through his negligence or misconduct. The owners, the principals, are entitled to a limitation of liability, where they have no personal privity with the immediate cause of the loss. That is plainly the case here. Tt is not necessary, therefore, to inquire what grade of officers, in the case of a corporation, it must be to make their knowledge or privity the knowledge or privity of the corporation. Even if the corporation would be chargeable for the running of an unfit boat by the direction of its sub
8. As regards the vessels required by the statute to be surrendered in a c;ase like the present, there can be no doubt that the Bordentown is one of them. The master of the tow was all the time on board of her. directing the navigation of all. I have no doubt that the Winnie, also, must be included. At the time when the master’s fault arose, the Winnie was as much a part of the moving power as the Bordentown, and was equally under the same direction. She belonged to the same owners; and from the beginning to the end she was engaged, in the owners’ behalf, in the work of towing the other boats, precisely as the Borden-town was engaged. It was immaterial on board which tug the master, for the time being, was, or from which boat his orders were given. Both as related to the owners of the tugs and as related to the owners of the boats in tow, the Bordentown and the Winnie, in taking the tow through to Kills, were in effect one vessel. In the case of The Connecticut and The S. A. Sterens, 103 U. S. 710, where those two vessels were towing a third, which came in collision with the Othello, the Stevens, which was the helper of the Connecticut, was exempted from liability, though the Connecticut was held for not signaling her movements. But that duty rested upon the Connecticut alone. An examination of the record in that case shows that the Stevens did not belong to the owners of the Connecticut, but was an independent tug, hired for the occasion, simply to supply additional motive power, as a helper, and that she had (lone so, without any fault on her part. Had the Stevens been owned by the same owners as the Connecticut, and engaged in the same work, under a single directing master, the case would have been analogous to the present. Where all the tugs employed belong to the same owner, and are under one common direction, and are engaged in the service at tbe time when the fault is committed, the}*- are in the same situation, as it seems to me, as a single vessel, as respects responsibility for the negligence of the common head. The words “such vessel,” in section 4288, embraces all such tugs. Rev. St. § 3; The Arturo, 6 Fed. Rep. 308. And all such must respond for the damages in proceedings for limitation of liability. An additional reason for bolding the Winnie in this case is that she was needed to supply the poor steerage power of the Bordentown, and, I have no doubt, was in part retained for that purpose. Acting as a rudder for the Bordentown, she was in a special sense a part of the moving power. As respects the tug Willie, I think there is not sufficient to hold her; because, at the time when the real fault in the caso ivas committed, viz., when going out into the bay, she was no part of the moving power, but was several miles distant, engaged in taking care of a separate detachment of the tow. After securing their safety, she came out of the Kills, for the purpose of giving help to the Bordentown, if
Though the Willie is not held for the general loss of the tow, she must be. held for the loss of the Cahill and her cargo, because she had specific instructions to leave that boat at Newark bay. These instructions constituted an appropriation of the Willie to perforin the general contract, previously entered into by the petitioners, to tow the Cahill to Newark. That boat,.as above stated, was placed on the port side, towards the forward part of the tow, for the purpose of being detached and left, as ordered. Contrary to these instructions, and without reason, so far as it appears, the Cahill was carried out into the bay, and lost. It was the Willie’s, .duty to perform her specific instructions; and, as nothing prevented her doing so, she must be held answerable for the loss of the Ca-hill in these proceedings. It is urged that-, though the Willie was negligent, her negligence was neither the proximate nor the natural cause of the subsequent loss; but that this loss arose from a new and independent cause, not to be anticipated, viz., the negligence of the Borden-town, as the court holds, in going out into the bay. I cannot sustain this contention. If the Bordentown, from the time when the Willie was detached, were regarded as an independent tug, belonging to different owners, still the petitioners, as owners of the Willie, which had taken the contract to deliver the boat at Newark, or to leave her at a suitable place therefor, would be personally responsible for the failure to do so.