256 F. 895 | S.D.N.Y. | 1916
(Eastern District of South Carolina, sitting in New York). This is a proceeding for limitation of liability, filed November 5, 1915, urider the fifty-fourth rule in admiralty (29 Sup. Ct. xiv), by the Cornell Steamboat Company, as the owner of the steam tug Ice King. Upon the filing of the petition the Morris & Cumings Dredging Company, as the sole owner of the scows M '47 and M 48, filed its claim, setting out that the Cornell Steamboat Company, as the owner of the steam tug Ice King, was indebted to it in the amount stated in the intervention, and alleging further that the Cornell Steamboat Company was not entitled to any limitation of liability under the terms of the statute. The Merritt & Chapman Derrick & Wrecking Company, who claims a right for salvage against the scow M 48, have also intervened, setting up their claim of salvage, and praying that salvage be adjudged them as against the scow M 48. No question has been raised as to the right of the Merritt & Chapman Derrick & Wrecking Company to intervene in this proceeding for such purpose. As the amount of the salvage decreed may be an important element in determining the amount that may be decreed in favor of the Morris & Cumings Dredging Company against the Cornell Steamboat Company, it would seem entirely pertinent that the question of salvage should be also passed upon in this proceeding.
The parties have all appeared, the testimony has been taken on the issues betwen the Cornell Steamboat Company and the Morris & Cum-ings Dredging Company, and between the Morris & Cumings Dredging Company and the Merritt & Chapman Derrick & Wrecking Company, and the advocates on behalf of all parties have been heard. The issues in the case to be determined divide, first, into the issues between the Cornell Steamboat Company, upon its petition, and the Morris & Cum-ings Dredging Company, as to whether there was any fault committed in the operation of the steam tug Ice King which would render the Cornell Steamboat Company, as the owner of the steam tug Ice King responsible to the Morris & Cumings Dredging Company, and then whether, the fault having been committed, whether or not the Cornell Steamboat Company is entitled to a limitation of its liability to the value of its interest in the steam tug Ice King and the freight pending, and, second, into the issue as to the question of salvage to which the Merritt & Chapman Derrick & Wrecking Company is entitled.
From the testimony it appears that the Morris & Cumings Dredging Company was engaged in doing some dredging which required the dredged material to be put upon their mud scows, which were then to be towed without the harbor and bay of New York, and emptied or dumped upon what is known as the dumping ground, at a point at sea about two miles southeast of the Scotland Right vessel and between about four or five miles off the shore of Sandy Hook. The Morris &
The testimony shows that the Ice King was repaired so as to be, according to the testimony of the witnesses, tight, staunch, seaworthy, and in good condition, and at the same time she was manned by a crew sufficient in number. The testimony is that the general manager of the Cornell Steamboat Company furnished the Ice King with a licensed captain, pilot, and mate, as to whom he made, according to his testimony, due inquiry. In the case of the master, he knew him, as the master had been an old employé of fhe Cornell Steamboat Company, and that he knew him to be a perfectly competent and capable man, and there is no testimony questioning the competency and capability of this master. With regard to the pilot, he had not been employed by the Cornell Steamboat Company, nor was he known to the manager; but the testimony of the manager is that the pilot, who was named Walsh, was sent to him by a man by the name of Pierce, in whom he had confidence as to his ability in procuring competent and efficient men, and who was acquainted with and had dealings with men engaged in the furnishing of pilots for such purposes. The manager testified that he also made inquiry at the offices of two other concerns which were engaged in towage operations, and in the employment of steamboat masters and pilots, viz. he inquired of one Conner, who was in the office of Moran & Co., and also inquired of some one in the employ of Peter Cahill, also a tug owner, and employer of such officers; that conjoined with this, he made a personal inspection of the man Walsh, who applied for the position of pilot, and being satisfied with what he heard in his favor, as well as with his personal appearance, he engaged him as pilot, and the Ice King, therefore, was manned by a crew and officers supplied by the Cornell Steamboat Company fi> the charterer.
The Ice King proceeded and performed the work for which she was chartered up to December 24, 1913. On that day she was to carry out two scows loaded with dredged material, to be dumped during the night of December 24, 1913. The master, desiring to be at home with his
There was no evidence introduced to show notice to, or knowledge by, the Cornell Steamboat Company that these two members of the crew had left the Ice King without leave; but there was evidence introduced showing that by the rules of the Cornell Steamboat Company no master or pilot or engineer was permitted to leave this boat without first reporting to the steamboat company’s office. The pilot took the tug in charge, took up his tow of two loaded scows, carried them down the harbor and through the bay out to sea, arriving at the dumping ground between 11 p. m. and 12 midnight, dumped the loads, and then proceeded to return. On his return the pilot went to sleep in his wheelhouse. The tug and her tow seem to have got completely out of their course. There was no lookout on the deck or in charge of the tug, the lookout whose watch it was to perform the duty was still asleep, not having been called; and while the pilot was asleep in the wheelhouse his vessel either collided with a buoy or thumped and scraped on a shoal, probably the shoal marked on the chart as “oil spot,” and the pilot being awakened by the concussion or collision immediately gave orders to reverse, without apparently taking any soundings or knowing whether the order to reverse was proper, and when the order was given and the engines reversed the hawser upon which his tows were hung was slackened, and, falling in the water around the propeller, became involved or entangled in the propeller of the tug, so involved and entangled as to completely wind up and put a stop to all movement on the part of the propeller, and bind it beyond any possibility of extrication at sea where the tug was, so that the tug with her tow lay in a perfectly helpless position at a point which, according to the best testimony, appears to have been in the channel marked on the chart as the False Hook Channel.
Although the wind had not been very heavy when in the evening the
If, however, the contract in this case is to be treated as a personal contract in the nature of a warranty that the crew and officers should