The Columbia

255 F. 515 | 2d Cir. | 1918

HOUGH, Circuit Judge

(after stating tire facts as above). It is no longer open to doubt that by the legislation above referred to the refuse of New York City, when dumped in the ocean, is unlawfully disposed of, unless deposited within the limits defined and prescribed by the supervisor of the harbor. Randall v. United States, 107 Fed. 935, 47 C. C. A. 80; Jaycox v. United States, 107 Fed. 938, 47 C. C. A. 83. It does not follow that every deposit beyond the lawful limits entails punishment or penalty. The excuses' advanced may be sufficient to avoid even pecuniary loss by the owners- of tug or scow or both; but the illegality of the dumping is unaffected by the validity of the excuse. The questions at bar flow from the language of section 3 as amended, declaring that:

“Neither defect in machinery nor avoidable accidents to scows or towboats, nor unfavorable weather, nor improper handling or moving of scows or boats of any kind whatsoever, shall operate to release the owners and masters and employes of scows and towboats from the penalties hereinbefore mentioned.”

1. Where scow 28 dumped is a question of fact, as to which we should not disturb the finding below, if in our opinion it rested upon really conflicting evidence; i. e., balanced contradictory and irreconcilable statements, each separate statement being possible. The F. B. Squire, 248 Fed. at page 470, 160 C. C. A. 479.

In this case, however, we are unable to find that the definite, careful and credible statements of the government inspectors are contradicted at all. Claimant’s case is an argument that, because the tug had been out so long, she must have gotten further away from Scotland Fight at the time of dumping than the distance observed by the men whose business it was to impartially note just such occurrences. We therefore hold that the scow was relieved of her load before she got to the dumping ground.

2. In The J. Rich Steers, 228 Fed. 319, 142 C. C. A. 611, we considered the meaning of the statutory phrase “avoidable accidents,” and held that to establish the defense of unavoidable accident it was necessary to show the precise defect causing damage, and that the party proceeded against “was not wanting in any lack of ordinary care in relation to it, or else to show all possible causes and that the defendant was not wanting in ordinary care as to any one of them.” This, as the citations made sufficiently showed, was an identification of the. defense of unavoidable accident under this statute with that of inevitable accident so often raised in admiralty proceedings, and as to which our most recent holding is In re Reichert Towing Line, 231 Fed. 214, - C. C. A. —.

The evidence here does not even attempt to comply with the standard there laid down. There is no evidence of recent inspection of the gasket, and abundant evidence that it is an appliance wiiich needs frequent examination in order to avoid exactly what happened to the Columbia. We therefore infer negligence on the part of the tug from the nature of her breakdown.

3. While this dumping did not take place in a storm, we have no doubt that the scowmaster, lying in the trough of the sea and exposed to the wash of every wave, dumped his boat to save his life, or at least under a reasonable apprehension that he was in imminent and deadly peril.

In the sense above stated, the weather was unfavorable; hut it cannot follow that the statutory penalty is avoided if such unfavorable weather, or the danger produced thereby, was not in a legal sense the proximate cause of the offensive dumping. (The foregoing assumes, hut does not hold, that weather per se can be a good excuse.}

The evidence is uncontradicted that, had the tug continued to pull and kept the scow out of the trough, there would have been no trouble. There was no increase of danger, no exposure to any new peril, that did not proximately result from the stoppage of the tug’s engine. There was, therefore, no intervening act efficient to break the causal connection between the stoppage of the tug and the danger to the tow which produced an unlawful deposit of refuse at the bottom of the sea. Long Island, etc., Co. v. Killion, 67 Fed. at page 368, 14 C. C. A. 418; Muller v. Globe, etc., Co., 246 Fed. at page 762, 159 C. C. A. 61.

We find, therefore, an unlawful an<J unexcused dumping. If tug and scow were in different ownerships, questions might arise which have not been argued, and as to which we express no opinion; it is enough for present purposes that the claimant of both vessels proceeded against was, through some one or more of its servants and one or both of its vessels, guilty of an offense against the statutes.

Therefore without appraising blame or distributing liability as between tug and tow, it is ordered that the decree appealed from be reversed, without costs, and the cause remanded, with directions to enter a decree for the libelant in the sum of $250, with costs of the District Court.