117 F. 712 | E.D.N.Y | 1902
On the 15th day of May, 190X, a little before 4 o’clock in the morning, the tug Shohola, with car float No. 9 on her port side, and car float No. 13 ón her starboard side, heading upstream, passed under the Brooklyn Bridge, and, when 300 or 400 feet off Catharine Ferry, while under one bell, ported her wheel for the purpose of rounding to and making a landing at Jay street, which is some 1,800 feet above on the Brooklyn side. The river at Jay street between piers is at least 1,200 feet in width. The strong flood tide sets from under the bridge upon and above Catharine Street Ferry. The tug was io2j^ feet long by 22j4 feet wide. The car floats were each 235 feet in length, and carried 12 empty cars. The Shohola has been valued at $16,000, car float No. 9 at $9,000, car float No. 13 at $14,500. When the pilot of the tug attempted to port his wheel, using the steam steering gear, his efforts were unavailing, and it was at once apparent that the gear was disordered. Thereupon the pilot signaled for the engines to go astern at full speed, which was done, and he also called to the engineer to inspect the steering chains. Thereupon the engineer went to the stern of the tug, looked at the steering chains, saw that they were taut, hastened to the forward part of the boat, made the same inspection with like result, called to the pilot to use the hand steering gear, and immediately shut off the steam which was furnished to the power steering gear,—an act erroneously regarded by the engineer and pilot as necessarily preliminary to the use of the hand gear. The hand gear was held by two wooden beclcets and was lashed in addition. The pilot loosed and had it ready for action by the time the engineer reported, but in the meantime the tow had backed, and, before it could be controlled, the port car float collided with pier 31. This broke her lines, and she drifted on the tide, and collided with the stern of the steamship Folmina, lying within the slip on the lower side of pier 33, doing, as it is claimed, some $45,000 damages, which injury is the subject of recovery in this action. The cause of the accident was the disconnection of the rod that extended from the pilothouse to the valve that put in operation the steering gear. This rod
It is also urged that the respondent’s pilot was negligent in his failure earlier to use the hand steering gear. He was in a very dangerous position in the river, with a tow not easily manageable at that point at the best; and when his power steering gear became useless the most ordinary prudence demanded that he should immediately employ the hand gear. But he delayed, first, to call for reversal of the engines, then for the engineer to make an inspection, and only acted after the engineer’s report. There was not the slightest occasion for his waiting. The excuse of danger in the use of the hand gear before the steam to the power gear was shut off was without foundation, and the apprehension that difficulty would come from the use of the hand gear if the chain were out of order related merely to an inconvenience in readjustment, and not to any danger. Considering the fact that he was in a part of the river where he strictly had no right to be, that he was upon a perilous tide, setting hard upon the nearby pier, it seems that ordinary judgment required
May the respondent limit its liability, and, if so, should the tug alone be surrendered? The libelant contends that, as the duty of providing a seaworthy vessel rested upon the owner, and as there was no system of inspection, there was “privity or knowledge” on its-part that should preclude its limiting its liability, and for this relies upon In re Myers Excursion & Navigation Co. (D. C., 1893) 57 Fed. 240, affirmed The Republic (1895) 9 C. C. A. 386, 61 Fed. 109 (Second Circuit); The Garden City (D. C., 1866) 26 Fed. 766; while the respondent refers to Quinlan v. Pew (1893) 5 C. C. A. 438, 56-Fed. 111 (First Circuit); The Annie Faxon (D. C., 1895) 66 Fed. 575 (Ninth Circuit), affirmed in 21 C. C. A. 366, 75 Fed. 312; Tyne Steam Shipping Co. v. British Shipowners’ Co., 5 Asp. 194, affirmed under title of The Warkworth (1884) 9 Prob. Div. 145. In re Myers Excursion & Navigation Co., supra, affirmed by the circuit court of appeals of this circuit, upon the ground that it was proven that the owner knew of the defect which made the vessel unseaworthy, Judge Wallace stated:
“We do not find it necessary to consider whether a shipowner is denied the protection of the statute whenever the loss has occurred from' the unseaworthy or defective condition of his vessel. The warranty of seaworthiness which is always implied on the part of the shipowner holds him to the-obligation of providing a vessel which -is in all respects reasonably fit for the voyage and employment in which she is to engage. Yet there may be-a breach of this obligation without his knowledge, and without his personal negligence. He may have employed a most competent expert to make ali necessary examination of the vessel just prior to the voyage,—an expert possessing skill and experience far beyond his own,—and the expert may have failed to exercise sufficient care to discover defects which ought to-have been found. It would be a hard construction of the statute which would deprive the shipowner of protection under such circumstances.”
In the case at bar the respondent’s contention is that it was no part of its policy to inspect the set screws, that the superior agents in the mechanical department knew that it was not done, and did. not intend to have it done, because, in their judgment, inspection was. unnecessary. Hence, if this omission was negligent, the corporation had constructive knowledge of the omission, and to it the negligence of employes was imputable according to usual rules. Although the corporation, through its agents, was negligent in the matter of inspection, there is no evidence that it actually knew of the failure to-inspect; nor was actual notice of the defect in the shaft brought home to the corporation, its officers, managers, or subordinate agents or servants. No one knew, because no one took the slightest pains to-discover. The respondent is one of the large railway companies in the United States. Of necessity it delegates the duty of inspecting
The remaining question relates to the necessity of surrendering barge No. 9 in addition to the tug. The libelant suggests this upon the theory that the barges and tug “formed a common united instrument of commerce, moving as an entirety, when the tort was committed, although afterwards separated in the successive collisions.” The Bordentown (D. C., 1889) 40 Fed. 682; The Columbia (1896) 19 C. C. A. 436, 73 Fed. 226. Generally, in collisions the tug has been regarded as the responsible actor. In the present case the proximate cause of the injury was the disordered steering gear, and in rem the tug alone would be liable. The fact that the defective condition of the tug enabled her tow to collide with the pier, and become detached, and injure another vessel, did not make the presence or movement of the tow a primary agent in effecting the injury. The presence of the barges was a part of the condition under which the wrongful act or omission took effect. It was not a part of the wrongful act. Therefore it is concluded that the respondent may limit its liability upon surrendering the tug.
2. Limitation of shipowner’s liability, see note to The Longfellow, 45 C. C. A. 887.