261 F. 897 | 2d Cir. | 1919
The pilot went on duty at 6 p. m. of December 24th and at about 12:30 a. m. of the 25th, when asleep at the wheel, was awakened by a jar apparently caused by collision with can buoy No. 1 of the Oil Spot, which lies eastward of False Hook Channel and about a mile from Sandy Hook beach. He instantly stopped and reversed his engines, and in this way fouled his hawser in the propeller. Finding it impossible to clear the propeller, he let his anchor go, ordered the scows to do the same, and says he saw them do it. Notwithstanding this the flotilla drifted in wind and tide upon the beach about 5 a. m. of the 25th, and the wind increased in the afternoon into a gale. No. 48 was towed off the same day by salvors, to whom salvage in the sum of $1,000 has been awarded, and the owners three weeks later salved No. 47; the tug being a total loss.
There is evidence that the pilot had drunk beer before the tug started and whisky when at the wheel. We concur in the finding of the District Judge that the accident and damage were due entirely to his misconduct-and negligence. In this court the owners contended that the proximate cause of the damage was the failure of the scows either to have or to use anchors. The Sunnyside, 251 Fed. 271, 163 C. C. A. 427. There was no such charge made in the petition or at the trial. On the contrary, the petition alleged that the scows dragged their anchors and the only testimony at the trial was made by the pilot and a witness from the scows, who said in tire course of their narratives that the scows did anchor. Under these circumstances we pay no attention to this argument.
The sole question in the case is whether the owners of the tug are entitled to limit their liability. The District Judge found that the owners had exercised due diligence and furnished a seaworthy tug, with a competent, skillful, and sufficient crew at the time of the commencement of the charter, and that the master and assistant engineer left the tug, and the pilot became intoxicated on the voyage, without the owners’ privity or knowledge. The pilot was employed November 20, 1913, by Broad, the general manager of the company’s fleet of over 60 tugs. It was his duty to employ the licensed officers, and theirs to employ the unlicensed men. He had a personal interview with the pilot, was well impressed by him, called up over the telephone the officers of former employers, viz. the Moran Towing & Transportation Company and Peter Cahill, who both recommended him. For over a month before the accident his conduct was entirely satisfactory. It is true that Broad made no specific inquiry as to the pilot’s habits about drink, and, though it is now evident that he had been going down in this respect, we agree with the District Judge that the owners are not chargeable with any lack of care and diligence in employing him.
"We very much appreciate the danger that the act should be cut down from its intended effect by too easy a finding of privity or knowledge on the part of owners, as also by too liberal an attribution to them of contracts as personally theirs. We are not disposed to press the law in those directions further than the cases go. But in this case, in addition to the finding of the owner’s privity to the unseaworthiness, was the further finding that the contract was the personal contract of the petitioner — a finding that seems warranted if any contract by a corporation can fall within the class. That such contracts may impose a liability that cannot be transferred to what is left of the ship is decided. Luckenbach v. W. J. McCahan Sugar Refining Co., 248 U. S. 139, 149 [39 Sup. Ct. 53 (63 L. Ed. 170, 1 A. L. R. 1522)].”
The decree is reversed, and the court below directed to enter the usual decree in favor of the libelants for their damages, with an allowance for salvage to the Merritt & Chapman Derrick & Wrecking Company of $1,000, but limiting the petitioner’s liability. Costs of this court to the appellant.
