Opinion
No. 267.
March 28, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Edward E. Rice, on behalf of himself and of his copartners, doing business under the firm name and style of Jacob Rice Sons, as owner of the scow George R, against the tug Marion A.C. Meseck, Meseck Towing Transportation Company, claimant. From a decree dismissing the libel, the libellant appeals.
Reversed.
The facts, as found by the trial judge after a trial, are substantially as follows:
Libellant chartered his scow to McAllister Lighterage Line, Inc. The charterer sent the scow with a cargo of copper to Pier 97, North River, a pier operated by a steamship company, Swedish American Lines. The steamship company employed the tug "Marion A.C. Meseck" to shift scows at that pier. The steamship company's harbormaster instructed the tug's master to shift libellant's scow from the north side to the south side of the pier, and to place the scow abreast a door in the pier-shed. The bow of the scow was brought to the pier and the tug then moved back along the side of the scow to work the stern into the pier. While the stern was being worked into the pier, the harbormaster was on the scow, and the head stevedore of Pier 97, also an employee of the steamship company, was standing on the pier abreast of the scow; both were giving directions to the tug as to how the scow's stern should be brought into the pier. The master of the tug was in the tug's pilothouse and the tug's deckhand was on the tug's deck. The head stevedore directed the tug to push the stern into the pier. He advised the tug that there was some ice between the scow and the pier, but that, as the tug pushed the stern of the scow to the pier, this ice would float under the piles of the deck. The tug pushed against the stern of the scow until it was against the pier, and the scow was then tied up. It was then discovered that the port side of the scow had been damaged. The court found that this damage was "probably caused by the ice."
The evidence shows that the tug's master did not himself make, or direct the tug's deckhand to make, any investigation of the condition of the ice, but relied on the advice received from the steamship company's stevedore.
Libellant brought this action in rem against the tug. The trial judge dismissed the libel. He made and filed conclusions of law reading as follows:
"1. The `Marion Meseck' is liable only for negligence.
"2. Mere proof of damage to the scow `George R,' as a result of contact with ice is not sufficient to impose liability on the `Marion Meseck' without proof of negligent operation of the tug `Marion Meseck.'
"3. The `Marion Meseck's' engagement was to carry out the orders and directions of the harbormaster and the stevedore in charge of Pier 97.
"4. As the `Marion Meseck' properly carried out such orders and directions she is not liable for any damage which might have been caused while she was engaged carrying out such orders.
"5. If there was any risk in maneuvering the scow `George R' into the pier that risk was assumed by those who directed the `Marion Meseck' to do so."
In his opinion the trial judge said: "From these authorities and because the `Meseck' was under no contract with the scow, but only with those who operated and controlled the loading and unloading of cargoes at the pier and the movement of the shifting tug, the only obligation of the `Marion Meseck' was to carry out without negligence, it is true, the orders of those in control of those operations. On the proof it appears that all the tug did was to carry out the orders of the harbor master or stevedore boss. They were acting not as agents of the tug but on behalf of the charterers of the scow. If the scow has any claim it would seem to be against the charterers. It may very well be that the harbor master or stevedore boss, or both, were negligent in failing to advise the master of the tug of the presence of heavy cakes of ice on the south side of the pier, but their negligence, if any, cannot be attributed to the tug. The case of the scow against the tug must, therefore, fail for lack of proof that the tug was negligent."
Hagen Eidenbach, of New York City (Charles W. Hagen and Nelson J. Johnson, both of New York City, of counsel), for libellant.
Foley Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for appellee.
Before SWAN, CHASE, and FRANK, Circuit Judges.
The damage to the tug was the result of forcing the barge into place against the ice. The trial court judge did not find that no one was negligent nor that the scow had contributed to the damage. He exculpated the tug on the theory that the directions and advice given by the steamship company's employees insulated the tug from liability. That theory is untenable. The tug owed the scow the duty "to do the work in a seamanlike manner." It may be that the steamship company and its employees, had they been sued by the libellant, would have been held liable; but that fact could not free the tug from liability. "That a principal is liable for a wrong does not necessarily immunize his agent. * * * The books are full of instances where dual liabilities are not alternatives or mutually exclusive; a plaintiff may be lucky enough to have a two-stringed bow." The tug's master, in order to do his work in a seamanlike manner, should not have relied on the stevedore's advice, but should himself have ascertained the condition of the ice.
The Golden Rule, 1925, A.M.C. 297, 298.
There the tug left the barge, undamaged, at a place designated by the company which employed the tug, and the court held that the tug's duty then ended. The court said, "It was of course obligatory on the tug to do the work in a seamanlike manner, but she was not chargeable as is a vessel contracting for towage, in respect of propriety in starting out, and safety at the point of mooring and leaving." It should be noted that the court held, on the facts, that there was no negligence in the place of mooring the barge.
Quinn v. Southgate Nelson Corp., 2 Cir., 121 F.2d 190, 191, certiorari denied 314 U.S. 682, 62 S.Ct. 185, 86 L.Ed. 546. See also Brady v. Roosevelt S.S. Co., 317 U.S. 575, 581, 63 S.Ct. 425, 87 L.Ed. 471.
Cf. The Procida, D.C., 243 F. 251, 253; The Edward G. Murray, 2 Cir., 278 F. 895, 897.
Reversed.