The Westchester

254 F. 576 | 2d Cir. | 1918

HOUGH, Circuit Judge

(after stating the facts as above).

[1] From the fact that a piece was found broken out of the tug’s propeller it is argued that she must have struck a submerged log or other similar obstacle; but there is no evidence on that point, and we cannot infer such an obstruction from the mere chipping of the propeller blade. Nor is there any evidence to show that a shock insufficient to materially injure the propeller should have broken a good shaft. We cannot concur- with the finding of the court below that this case is an instance of inevitable accident. It is enough to refer to our judgment in Re Reichert Towing Line, 251 Fed. 214, —— C. C. A. ——, decided since the decree appealed from was entered. The facts now before us are much less favorable to the tug than were those which we found insufficient in the decision just cited.

[2, 3] It was, however, a plain fault in the Sinclair to be without an anchor (The Sunnyside, 251 Fed. 271,- C. C. A.-), and we discover no excuse for its absence; but if an anchor had been on board, and had been used, it cannot be said with reasonable certainty that stranding would have been avoided.

The tide must have been of considerable strength, for the tug’s cable parted; anchors are habitually carried at the bow, and the Sinclair was being towed stern first; instant action was necessary, the available time short, and whether under such circumstances the maneuver could have been successfully performed is doubtful.

To sustain the result, if not the reasoning, below, The M. E. Luckenbach (D. C.) 200 Fed. 630, affirmed 214 Fed. 571, 131 C. C. A. 177, is pressed upon us. It is true in one sense that here, as there, “concurrent faults” — i. e. negligent acts contemporaneously operating to produce injury — do not' exist. But the word relied upon, “concurrent,” must be taken as synonymous with “contributing,” and in both The Euckenbach and The Sunnyside, supra, it was found as matter of fact that, despite a fault which put a tow adrift, there would have been no resulting injury, had it not been for a new and independent piece of negligence; therefore the wrongdoer first in point of time was held not responsible, although not innocent.

Here we infer negligence (i. e., unseaworthiness) in the tug from the ■ unexplained breaking of her shaft, and find negligence admitted by the barge’s admission of no anchor. When faults are thus shown, all the guilty, if their fault could- have caused the injury, must, to escape liability, affirmatively show that they did not, in point of fact, cause the same. The Madison, 250 Fed. 852,-C. C. A.-. Neither party has borne that burden, in this case; therefore the damages and costs below should be divided.

[4] The procedure of claimants in giving no notice to libelant of the survey on the. Westchester is objectionable and inexplicable, if it was expected to use that survey as a piece of evidence. The importance of surveyá in maritime litigation has often been recognized. The Mason, 249 Fed. 721 - C. C. A. -. But, to say the least, it greatly diminishes the value of any survey considered as documentary evidence, and (even if the surveyors are called as witnesses) creates an air of unfairness about the whole proceeding, to exclude therefrom any known person who may claim against the injured res or have suit brought against him by reason of that injury. The matter is not important in this cause; it is mentioned because it is very important in proper admiralty practice.

For the foregoing reasons the decree is reversed, with the costs of this court, and the cause remanded, with instructions to award libelant half damages; the costs below to be divided.