The Eugene F. Moran

143 F. 187 | S.D.N.Y. | 1906

HOLT, District Judge.

These are suits brought to recover damages for a collision. The New York Central Car Float No. 1 was lashed alongside of and being towed by the steam tug Charles E. Matthews up the North river. The two scows, 15D and 18D, owned by the Du Bois Sons Company, were being towed tandem on a hawser by the tug Eugene F. Moran. The car float came in collision with scow 15D, causing injury to both the scow and the car float. At the conclusion of the trial, I decided that the Matthews and the Moran were both in fault, and that there were no lights on either of the scows; and I reserved the case for consideration as to whether the absence of lights on the scows was a fault for which the scows were responsible, or the Moran, or both.

I think that both the Moran and the scows were in fault for not having up lights on the scows. Counsel for the scows claims that it was the duty of the tug to have the lights put up on the tow before starting, and that at the time of the collision the start had not taken place; but in my opinion the tug and tow had started and were under way, and the authorities establish that, under those circumstances, it was the duty of the master of the tug and the men on the scows to see to it that the lights required by law to be carried on the tow were in place and lighted. The Lyndhurst (D. C.) 92 Fed. 681; The Nettie L. Tice (D. C.) 110 Fed. 461. The result is that the Matthews, the Moran and the two scows were in fault, and the car float was not in fault, for this collision. The question then arises as to the apportionment of damages. The authorities are quite conflicting upon this subject. There are a number of authorities which hold that, in cases where one vessel is towing another, the tug and tow are to be considered as one vessel. The Niobe, 13 P. D. 556 (1891) App. Cas. 401; The Englishman and the Australian, L. R. 1894 Prob. 239; The Anerly (D. C.) 58 Fed. 794; The Komuk (D. C.) 120 Fed. 841. Other authorities hold that in such cases each vessel in 'each flotilla is to be treated as a distinct entity, and each vessel in fault equally liable for any damage with the other vessels in fault. The Brothers, 2 Biss. 104, Fed. Cas. No. 1,969; The Peshtigo (D. C.) 25 Fed. 488; The Lyndhurst (D. C.) 92 Fed. 681; The Nettie L. Tice (D. C.) 110 Fed. 461; The Doris Eckhoff (D. C.) 41 Fed. 156; The Maling (D. C.) 110 Fed. 227; The S. A. McCaulley (D. C.) 116 Fed. 107.

I am entirely unable to reconcile these decisions. Neither rule, in. certain cases, will work out complete justice. In my opinion; the rule which holds- that each vessel in fault is to share equally with every other vessel in fault is upheld by the greater weight of authority, particularly in this country, and has the advantage of greater simplicity of application.

My conclusion is that the damage caused to the car float should be borne in equal one-quarter shares by the Matthews, the Moran and the two scows, and that the damage caused to the scow 15D should be borne in the same proportion; that is, the scow itself should bear one-quarter of the loss, and the Matthews, the Moran, and the other scow should each bear one-quarter. As the scow 18D belongs to the same owners as the scow 15D, the decree in the case of the Du BoisSons Company should be for one-quarter of the damage against the Matthews and one-quarter against the Moran. The decree should provide, as usual, that if the value of any of the vessels held liable is insufficient to pay the amount decreed there shall be a remedy over against the others for the deficiency. The New York Central & Hudson River Railroad Company should have costs, divided in the same way, against the claimants in its suit, and the Du Bois Sons Company should recover half its costs against the claimants in its suit. The decree should be settled on notice.