July 15, 1929.
Appeal from the District Court of the United States for the Southern District of New York.
Petition by Spencer Kellogg Sons, Inc., against Louis O'Donnell and others to enjoin a libel and limit their liability as owners of the tug Hugh O'Donnell. On appeal from the decree [22 F.2d 410], the Circuit Court of Appeals appointed a commissioner to take proof and report on the evidence respecting seaworthiness of the barges involved [ 26 F.2d 334]. On exceptions to the report of the commissioner. Exceptions overruled, decree dismissing claim reversed, and cause remanded, with instructions.
On exceptions to the report of a commissioner appointed by the Circuit Court of Appeals in a suit in the admiralty.
This proceeding is a consequence of the decision in In re O'Donnell (C.C.A.) 26 F.2d 334, where the court held that the tug and tow were one within the meaning of the Harter Act (46 USCA §§ 190-195), and that if both were seaworthy the tug was excused. The tug had been proved such, but there was no proof as to the barges, and a commissioner was appointed in this court to hear and report upon the evidence. At the hearings the tug proved that the barges were sufficiently seaworthy, but their proper manning was sharply contested. The voyage was from Buffalo to Waterford in the Erie Canal, and began on November 15, 1925; it was the last trip eastward of the season.
On leaving the western terminus of the canal at Buffalo, the tug had five barges in tow in two tiers, three barges in the first tier and two in the second. Upon reaching Tonawanda 13 miles beyond, where the canal narrows, all were singled out; the first section being of the three in the first tier, made fast close together, the second section of the two in the second tier, likewise close together, but separated from the first section by a hawser of about 200 or 300 feet. Each section was steered by "kinking"; that is, by changing the direction of the rear barge or barges relative to the first, so that the section as a whole was not straight. At Buffalo the barge owners had hired seven bargees for the fleet, of whom one was concededly unfit, and another was a boy of between 16 and 19, the stepson of one of the bargees, as to whose competence, although he had some experience in the canal, the evidence was in much dispute. The seven were distributed, two on the first barge of the first tier, of whom one was in general charge, one on each of the next three, and the incompetent bargee and the boy on the last.
At Lockport, not far from Buffalo, the unfit bargee was discharged, and another went back to help the boy, one of the two on the first barge taking his place. The flotilla went on without mishap until lock 16, when trouble arose, and at lock 15 three bargees deserted; two deck-hands from the tug took their places, and the barges were thereafter manned by a crew of five, counting the boy. Whether thereafter there was a man on each of the first four barges and the boy alone on the last, or whether a man assisted the boy and one barge was left without any one, is not clear from the evidence. It was after this change was made that the collision took place.
The cargo owner maintained that the barges were not properly manned, first, because there was not a bargee on each barge; and, second, because there was not an extra bargee, or "tripper" — this being the last autumn voyage. Canal Law of New York (Consol. Laws, c. 5) § 33, subd. 12, gives power to the superintendent of public works to make regulations for navigation, and he promulgated a number of these, of which, however, only Nos. 3 and 4 are here pertinent. No. 3 enacted that "every boat navigating the canal shall be equipped with a rudder and a wheelsman, who shall be constantly on duty at the wheel or tiller, except such boats as are so constructed as to tow safely on two hawsers, or use other suitable steering equipment and have permission from the commissioner of canals." No. 4 enacted that "every boat navigating the canal shall be properly manned, that is, having at least one man for each cargo boat, unless written permission to operate with a less number of men is obtained from the commissioner." There was much evidence pro and con of a custom that, because of the likelihood of ice and severe cold, an extra man should be carried on the last autumn trip.
The commissioner held that the barges were not manned as required by the custom, because when the flotilla left Buffalo there was not a sixth bargee, or "tripper," and because after lock 15 there were only four. In so doing he excluded the incompetent bargee and the boy, whom he found to be not qualified. The tug excepted to this report.
George V.A. McCloskey, of New York City (John H. Purdy, of New York City, on the brief), for tug.
Forrest E. Single, of New York City, for cargo.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
Regulation 3 of the superintendent of public works speaks of barges which are steered by a rudder and have a wheel or tiller. Only in such a case does it presuppose a wheelsman for each boat, who shall be always on duty. These barges were not steered in that way, but by two lines, one of which could be shortened to put a bend in a section, and so change its direction. No question is made of the propriety of this mode of navigation; there was no pretense that a man should be at each wheel, or that each barge should have a tiller, wheel, or rudder. We do not think that the regulation applied. Regulation 4 was general, and required "every" barge to be manned by having at least one man "for each boat," unless some dispensation was obtained, of which there was no evidence. The commissioner appears to have thought that this regulation was satisfied if at Buffalo there were five competent bargees on the fleet as a whole, for he entirely relied upon the custom to have a "tripper" for any default in manning when the voyage began.
Moreover, several of the witnesses impliedly took this view at the hearing. Nevertheless we do not think that the regulation means that. It says that "every" barge shall be manned, in the sense that there shall be a bargee "for each boat." This must mean, at least when the boats are singled out, that there shall be a bargee on each barge. It cannot be, when the fleet is under way and the sections separated by 200 feet of hawser, that it is enough if there are two men on one barge in the forward section and no competent man, or none at all, on one in the second. Obviously that would not be safe navigation.
Now it is true that when the fleet left Buffalo, and for the 13 miles to Tonawanda, the barges were all clustered together in two tiers. It is possible that up to that point it was not improper to have some of the barges without any one on board, if the crew had not yet been assigned to the barges, though we doubt that the regulation allows even that. If it does, perhaps a failure properly to distribute an as yet undistributed crew at Tonawanda would be only a fault in management or navigation. The Silvia, 171 U.S. 462, 19 S. Ct. 7, 43 L. Ed. 241. But these were not the facts. The "fleet captain," Dolland, though a bargee, had no intention of acting as such on the last or any other barge, except in an emergency, as between Lockport and lock 16. He was in general charge, and had detailed the unfit bargee and the boy together to take care of the last barge, where they were already stationed. That was their assignment when the voyage began; they were to continue to act as bargees of that boat when the fleet was singled out, and Dolland was to keep his roving command, going here and there, or nowhere, as occasion required. The purpose was then fixed; it was not the case of an undistributed crew to be later distributed. If, therefore, they were both incompetent, the barge owners had failed to fulfill that condition on which the privilege granted by section 3 of the Harter Act (46 USCA § 192) depended, and the tug, which must identify herself pro tanto with the barges to invoke the statute at all, is responsible for her own faults of navigation.
She makes only the faintest assertion that the bargee discharged at Lockport was fit; he clearly was not. He was drunk when he shipped, and failed to steer when he became sober. As to the boy, the evidence was in great dispute; but we will not disturb the finding of the commissioner, who had far better means of judging than we. He was certainly not over 19, probably less, and there was ample evidence to justify the conclusion that he was not able to man a barge alone. Indeed, he was never left alone until perhaps after lock 15, when the fleet was shorthanded. Therefore we conclude that the last boat was ill-manned on leaving Buffalo, regardless of the supposed custom to have a "tripper," on the existence of which we do not pass.
What took place at lock 15 is not relevant, unless we are to say that the voyage began anew at that place, since, as we have said, it is its commencement which counts. Supposing that we were to assume that it did, the fleet was again ill-manned. Either there was no man on one of the barges in the first section, or the boy was alone on the last barge; it makes no difference which.
There remains only the question whether the barge owners exercised due diligence to man the last barge at Buffalo. Plainly they did not. The qualifications of the boy could have been learned without difficulty, if not already known. The issue of due diligence is quite different from the right of the tug to limit liability. The right to take advantage of the Harter Act depended upon the diligence of the fleet as a whole in respect of both tug and barges; as to this the tug shared any default of the barge owners. The right of the tug to limit can hardly arise, as the decree states the face of all the claims to be less than $40,000, and the tug has given a stipulation for $44,000. At any rate, that question must await the liquidation of the claims.
The commissioner's fees are fixed at $500. Exceptions overruled, decree dismissing the claim reversed and cause remanded, with instructions to adjudicate the validity and amount of the claim.