292 F. 93 | 3rd Cir. | 1923
The appellees filed- a libel and petition to limit their liability in the above-stated cause, and at the same time contested their liability and that of the steam tug Neptune for any loss or damage resulting from a collision between the Neptune and the steamer, City of Camden, in the Delaware river opposite Philadelphia on the early morning of October 18, 1919. The Neptune was going down the river, several hundred feet from the pier line of the Pennsylvania shore on her way to Marcus Hook, and the City of Camden was on her way from Wilmington to Philadelphia, 100 to 200 feet farther from the shore line than the Neptune. If they had maintained their respective courses, they would have passed each other port to port in safety. When the boats were somewhere between 200 and 400 yards apart, the steering gear of the Neptune “became unmanageable” and she sheered to her port across the course of the City of Camden. She immediately blew a danger signal and reversed her engines to full speed astern. This signal was answered by the City of Camden, which likewise reversed her engines to full speed. The headway of the tug was stopped at a point immediately in front of the city of Camden, which was slowing down; but there was not sufficient time to get the tug to start astern nor for the steamer to come to a complete stop before she struck the starboard side of the tug a little forward of amidship, cutting the hull to below the water line. The steamer backed away and the tug started astern, but the water rushed into the opening, and the tug sank within seven or eight minutes in about 33 feet of water. The Neptune was raised four or five weeks afterward from the bottom of the river and was taken to Delanco, N. J., by the J. E. Brenneman Company, which subsequently libeled her for $831.53 due for that service. On account of that libel, together with information and belief that the City of Camden was about to present a claim of 814,500 for damages received by it as a result of the collision, the appellees filed this libel in which they prayed that a monition be issued to the City of Camden, the Wilmington Steamboat Company, her owner, and to the J. E. Brenneman Company, and if any liability should be adjudged, against them, they then prayed that their liability should be limited to their respective interests in the Neptune in accordance with the provisions of section 4283, Revised Statutes of the United States. Compiled Statutes, § 8021, and Admiralty Rule 56 (40 Sup. Ct. xxi) of the Supreme Court. The Wilmington Steamboat Company filed an answer and claim to the extent of $14,300, putting in issue both the appellees’ right to limited liability and their claim to exemption from any liability for themselves or the Neptune. Elaborate proofs were submitted to the District Court, which decreed that the appellees were free from any fault or negligence causing or contributing to the collision, that they and the Neptune were not liable for any loss or damage resulting from the collision, and that the appellees recover one-half of their costs from the Wilmington Steamboat Company. From this decree the Wilmington Steamboat Company has appealed.
The first question to be considered is the alleged negligence of the appellees in taking reasonable precaution to guarantee the sea
Was the collision due to “inevitable accident” ? The burden of showing this was upon the appellees. In order to do this it was necessary to show the cause of the accident and that the accident resulting from that cause was inevitable, or to show all the possible causes, one or the other of which must have produced the accident, and that no single one of these possible causes could have been avoided. The Edmund Moran, 180 Fed. 700, 104 C. C. A. 552; The Lackawanna, 210 Fed. 262, 127 C. C. A. 80; In re Reichert Towing Line, 251 Fed. 214, 163 C. C. A. 370. The evidence conclusively shows that the steering gear got out of order and became unmanageable and the Neptune in consequence sheered and caused the collision. Exactly what caused the steering gear to become unmanageable is not known. Three or four weeks later, when the boat had been raised and taken to Delanco, it was discovered that a nut was missing from one of the valves or cylinders of the steering engine, but from which valve, ánd when it came, off, if it was ever on, the testimony does not disclose. It is a surmise only that its absence caused the steering gear to become unmanageable. If, however, it be assumed that the absence of the nut caused the steering gear to become unmanageable, it has not been shown that this cause could not have been avoided. Its coming off might have been due to a number of causes. It might have been too large or not screwed on tightly in the first place, or the threads might have been worn or stripped. This was an important piece of machinery of the tug, and it has not been shown that the nut could not have been made so secure that it would not have come off. Consequently the appellees have not shown that the collision was an inevitable accident.
There is no evidence sufficient to establish negligence under the circumstances on the part of the master or crew in the management of the Neptune at the time of or after the steering gear became out of order.
Did the appellees exercise due diligence in making the Neptune seaworthy? During the summer before the accident she was completely overhauled at the shipyard of the Delanco Shipbuilding Company, a reputable company, at a cost of $8,692.48. The steering gear was sent by the Delanco Shipbuilding Company to the yard of Quigley & Dorp, a company of good reputation and large experience in repairing steering gears. It was repaired there. This company overhauled the pistons, valves, cylinders, rod connections, and in fact “repaired the engine and everything that was necessary” at an expense of $414.-16. It was then tested out in the presence of representatives of the Independent Pier Company, one of the appellees here. The steering gear engine was returned and the steering gear was put together. Thereafter “steam was turned on, the steering gear was operated both ways.” “Quite a number of tests were made” and its condition was pronounced “first class.” Mr. Samuel A. Mills, who had been a United States marine inspector, attached to the Philadelphia office for 17 years, testified that he, and Frank H. Demke, another United States marine inspector, made an inspection of the Neptune, including her steering gear, October 9, 1919, nine days before the collision and six days’ before she left the shipyard. It took him five hours to make the inspection. He found the Neptune, including the. steering gear, in good condition. We are satisfied that the appellees used due care to make the Neptune seaworthy and did all thát they could reasonably be required to do. They are accordingly entitled to limit their liability to the value of their interest in the vessel.
This brings us to the final question: The liability of the City of
The decree of the District Court is therefore reversed, and the case remanded, with directions that the two claims be heard and adjudicated and the appellees held liable to the amount of the value of their interest in the Neptune.