226 F. 345 | W.D.N.Y. | 1915
The steel dredge Pocantico, having an A-frame rigidly attached to her deck, sank in Lake Erie on June 11, 1913, about 2% miles southwest from the Buffalo breakwater north end light,
The burden of proof was on the Pocantico to show, not only suitable lighting of the wreck at night, but also negligent navigation on the part of the steamer. The Chatham (Ross v. Merchants’ & Miners’ Transp. Co.) 104 Fed. 302, 43 C. C. A. 538. This burden, however, has not been sustained. The wreck, which lay in the pathway of steamers was a menace to navigation, and should have been conspicuously marked, to tire end that mishaps such as that under, consideration might be avoided by the exercise of ordinary care. As was said by Judge Coxe in The Fred Schlesinger (D. C.) 71 Fed. 748:
“Regard for her own safety, as well as for the safety of others, should compel those responsible for her to make her presence known by plain and unmistakable signals.”
Indeed, there are cases holding that failure to distinctly mark the location of a boat sunken in a channel or pathway of vessels renders the owner of such boat liable in rem for injuries sustained by vessels colliding with the wreck. The Macy, 170 Fed. 930, 96 C. C. A. 146; The Snark, [1900] Prob., Adm. & Divorce Division, 105; The Anna M. Fahy, 153 Fed. 866, 83 C. C. A. 48.
Testimony was introduced to show that it was customary for the respondent, the Reid Wrecking Company, to place lights on sunken boats while engaged'in raising them, and that'on the night of the mishap lights were displayed on the Pocantico. The witness Ashley, of the steamer J. W. Jenks, testified in substance that he left Buffalo breakwater at 8:20 p. m. on August 30th, taking his course from abreast the Richardson gas buoy in Rake Erie, and that he plainly saw, in addition to the Waverly Shoal light and the Richardson light, another light (red), which he-assumed marked the spot where the Pocantico lay. But the master of the steamer Alleghany, which left the breakwater about ten minutes after the J. W. Jenks, testifying to the contrary, says that there was no light displayed on the A-frame of the sunken dredge when he passed her; that her beam was on his port bow, about 50 or 60 feet away; and that he would not have sighted it, had the deck lights
Capt. Sparling of the tug Manistique, which was used in the work of raising the dredge, testified substantially that he left one red light and two bright lights on the Pocantica on the night of August 28th, hut disclaimed the use of such lights to warn approaching vessels, stating that they were used simply to make it convenient to return to the dredge at 3light, as he did not consider it his duty to keep lights on the wreck as a warning to passing vessels. He further testified that from the shore lie. saw the lights burning on the dredge the next night, but he was ume.rtain as to whether they were burning on the niglit of the 30th. Capt. Reid and the witness Allen testified that they started for Erie on the 1 ug .Reid, which was also used in the work of raising the dredge, early on the morning of August 30th, passing the A-frame at about 4:3() o’clock, and that at that time the red light was burning.
There was, however, no testimony, save that of Capt. Ashley, to in-dícale a probability that there was a light on the A- frame at the time the Wissaliickon passed. Capt. Delaney, who was on the pilot house, the male, wheelsman, and Conners, the lookout, all of the Wissaliickon, testified, that there was no light of any kind to mark the place where the dredge was submerged. I was favorably impressed by the testimony, to which I have previously referred, of Capt. Cronkhite of the Alle-ghany, who also used the City Hall tower as a range, and, although his ship was owned by the owner of the Wissahickon, I am nevertheless of opinion that he gave credible testimony when he swore that there were no lights whatever on the A- frame of the wreck, notwithstanding Capt. Delaney’s failure to so state in his report.
It appears that the libelant had informed the Reid Wrecking Company that, when it took possession of the dredge for the purpose of raising her, it would be expected to maintain a light on her, as libel-ant had previously done. In these circumstances it is difficult to see any adequate reason for relieving the Reid Wrecking Company from liability for failure to comply with the statute requiring the owner to mark the position of the wreck. The place where the dredge lay on the night of August 30th could be seen plainly from the mooring place of the tug Manistique, and verbal warning could have been given to passing vessels. Nor would it have been wholly impracticable to have anchored a tugboat near the wreck to give warning to vessels, if for any reason the light could not be maintained. Harrison v. Hughes (D. C.) 110 Fed. 550, affirmed 125 Fed. 860, 60 C. C. A. 442; The Mary S. Lewis (D. C.) 126 Fed. 848.
But it is contended that the contract for raising the dredge was inequitable, in that compensation depended upon a contingency, as there was to be no recoveiy for services unless they resulted in success, and that the contract did not specify that the Reid Wrecking Company should maintain a light. This defense, however, cannot be considered sound. The bailment, even though the compensation was uncertain, was quite as much for the benefit of the Reid Wrecking Company as of the Empire Engineering Company (Newhall v. Paige, 76 Mass. [10 Gray] 366); and, such being the fact, the bailee was bound to exercise ordinary care in relation to the property which was the subject of the bailment, and this it failed to do. 5 Cyc. 185; Story on Bailments (9th Ed.) 431; Lawson on Bailments, § 43.
My conclusion is that the libel must be dismissed as against the steamer Wissahickon, with costs, for the reason that the dredge was unlighted, and there was no negligence on the part of the steamer in failing to avoid her, and must be sustained, with costs, as against the additional respondent, the Reid Wrecking Company, for the reason that as bailee of the dredge it failed to exercise ordinary care in lighting the place where the dredge lay, or in giving warning to vessels
A decree may he entered.