The William Guinan Howard

252 F. 85 | 2d Cir. | 1918

Lead Opinion

LEARNED HAND, District Judge

(after stating the facts as above). [ 1 j We all accept the excuse of the Howard that she was powerless under the circumstances. The only possible fault that can be charged against her is that her master, during the night of the 25th and 26th, should have gone ashore for.help. It seems to us somewhat fantastic to suppose that a bargemaster under the circumstances could or should have made any effort to have the boat transferred. She was a helpless scow, without means of locomotion, subject to the control and under the direction of the railroad, which towed her to her position, and we can see no f atilt on her part.

[2] The majority of the court, however, does not agree that the railroad company was free from negligence, it seems to us inherently dangerous to lay so large a number of empty barges with high free-board alongside a string of piles situated as these were, and without any control except the mooring of the first tier. In the first place, we think that to allow such barges to swing out on every tide is a serious obstruction to navigation (Hughes v. Penn. [D. C.] 93 Fed. 110, 103 Fed. 925), even in fair weather: but as to that we do not think it necessary to make any finding. To allow them to swing in a gale reaching a maximum of 66 miles an hour seems to us, however, beyond any excuse. The almost inevitable result is disaster. The combined resistance against the wind of a string of barges 60 or 70 in" number is almost certain to result in parting the mooring of the whole or the fasts between some of them. What happened seems to us to have been almost inevitable. Moreover, the railroad concedes that the same tiling had taken place five or six times in the past, and, while these accidents extended over a long period of time, they were ample warning that the practice was unsafe, and necessarily unsafe, not only to the barges, but to any shipping which lay on the anchorage grounds to leeward.

The railroad’s excuse is that the row of stakes did not extend far enough to the southwest, so that each tier might be made fast to the piles, and it is suggested that the railroad did not own land on which stakes could he driven. Nothing of the sort appears in the testimony; but, if it did, it would be no excuse, assuming, as we must, that the practice was dangerous. Either the railroad must acquire sufficient land for its purposes or it must not moor so many barges in a string at that place. How wide each tier need have been to accommodate all the barges at that time we do not know, and it is unnecessary to inquire: The railroad owed a duty to other shipping in the Kills to prevent what happened here.

It is suggested that The Lyndhurst, 147 Fed. 110, 77 C. C. A. 336, exonerates the railroad. In that case the accident happened through the failure of the barge to make fast a tow line to the tug. We do not see the application of the case. There is no evidence that the fasts between the first and second tier were improper. It was not to be expected, in our judgment, that they should hold against such a strain as was imposed upon them. Nor do we find that the Edwin Terry, 162 Fed. 309, 89 C. C. A. 17, touches this case. The Media (D. C.) 132 Fed. 148, Id., 135 Fed. 1021, 68 C. C. A. 127, is not in our judgment in point either. In that case the barge was injured because of the extraordinarily low tide caused by a high gale. The case was decided upon the theory that the extraordinarily low tide was not to have been anticipated. Judge Adams particularly distinguished the case from one in which the boat was left subject to swing in any change of wind. The injury there was done by a submerged pile upon which the barge was impaled, and which, as we understand, was not known at the time. This chain of circumstances seems to us much more remote than that in the case at bar.

The railroad asserts that this way of mooring the flotilla has been customary in the place in question for 25 years past; but it does not appear that it was the custom of any but this respondent, and in any event it had been amply demonstrated in the past that it was a dangerous custom, and as such it cannot be excused. The gale was of no extraordinary violence for the season. It was of a kind to be expected once or more during any winter in these waters, and in accepting a risk no more uncommon the railroad made itself responsible for the ensuing damage.

Judge HOUGH thinks that the Philadelphia & Reading Railway Company was not in the usual relation of tug to its tow at the time of the storm. It is true that the allegations upon which that conclusion might be based were denied in the railroad’s answer to the petition, and that the only proof upon the trial was that of MacGregor, who said that the boats were going down to Port Reading to load coal; that being the place where the railroad did load coal on barges. It is at least equally possible that the agreements included, not only towage to Port Reading, but coaling there, in which case it would be responsible for a tug’s ordinary care, due to a tow while moored. That the railroad did select the berth and leave the barge there is conceded. We do not think that the record justifies our speculation as to whether its duty was then at an end, because neither in the opinion below, nor in any of the briefs, is it suggested that the general relation of tug to tow had ceased. The cause having been disposed of throughout upon the assumption that the sole question was of the railroad’s negligence, we hardly think it our duty, or indeed our right, to raise such a point of our own accord.

The decree is reversed, and a decree will be entered against the Philadelphia & Reading Railway Company, with costs in both courts, and in favor of the Howard, but without costs in either court.

<gx=oFor other eases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

---

Dissenting Opinion

HOUGH, Circuit Judge

(dissenting). The corporation which the court holds responsible for the consequences of a violent storm was not by charter or otherwise in charge of the Howard, at or near ihe time she went adrift. It did tow the barge, and that contract was ful - filled when the Howard was delivered where she wanted to go, at a customary mooring place, safe at Ihe time of delivery. It also offered the wharf or mooring, where the barge safely lay until' an unusual storm tore her and other boats loose. The place and method of fastening were well known, safe in most weathers, and nothing caused apprehension of danger when the Howard was made fast.

The barge went where she did by the volition and for the purposes of her owner, and when the railroad company had safely towed her to destination, and furnished her with a usual mooring place, their mutual relations were ended. I am not advised by the majority opinion of what breach of contract the railroad was guilty; but by implication it seems held to a sort of general guardianship of anything lying at the stakes. Such a duty or office has never heretofore been held to exist, and is not in my judgment founded either on positive law, or good maritime analogy.

Therefore I dissent.