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The John E. Enright

Circuit Court of Appeals, Second Circuit
Apr 7, 1930
40 F.2d 588 (2d Cir. 1930)


Nos. 268, 269.

April 7, 1930.

Appeal from the District Court of the United States for the Western District of New York.

Libels in rem by John E. Wall, owner of the barge John E. Enright, and Frank La Fontaine, owner of the barge Captain M. Chapman, respectively, against the steam tug William G. Fox, claimed by the Cowles Towing Company, Inc. Decrees for libelants [ 36 F.2d 821], and claimant appeals.


These two suits are based upon the same facts. Each of the libelants is the owner of a barge which was injured when one of the boats collided with the bullnose at Lock No. 12 in the New York State Barge Canal during an attempt by the tug William G. Fox, owned by the claimant, to tow them into the lock in September, 1927.

On April 4, 1927, the claimant demised its tug Fox, and one other not here involved, by bare boat charter to the Independent Towing Company, Inc., upon conditions which admittedly transferred "the entire dominion and control of the tugs and of the operation and the navigation thereof" to the Independent Company. This charter was in effect at the time the barges were injured. At this time also there was in full force and effect an agreement made between the Independent Towing Company, Inc., and the owners of these barges under the now material terms of which the towing company agreed to "provide sufficient power on the New York State Barge Canal, in Buffalo Harbor, on the Hudson River and New York Harbor" and the owners agreed "to operate on the New York State Barge Canal, between New York Harbor and points not west of Buffalo, N.Y., and to tow at all times * * * behind tugs provided by the Towing Company." The agreement also contained the following clause:

"The Owner agrees to assume all expenses incident to the physical operation of his barges with the exception of towing charges; that he will provide at all times a competent Captain and keep his barges fully equipped according to the customs of the trade. The Owners also agree to designate one man, to be known as `Fleet Captain,' who will at all times work in harmony and co-operate with the Towing Company or tug Captain designated by them, in order to facilitate operation of the fleets and to co-operate with the Towing Company's representative and the Agent as to loading procedure and discharge of barges and assist in every way in the speedy movement of barges in the canal, rivers and in port."

The share of each party in the proceeds accruing from operation was worked out on a percentage basis after certain deductions for expenses were made from gross earnings, including the commission to be paid an agent for obtaining cargoes.

While operating in accordance with the contract partially quoted, the towing company used the tug Fox to tow the libelant's barges into Lock No. 12. As the tow approached the long wall at the entrance to the lock at about 9 o'clock on a rather dark evening, the tug had out from 225 to 300 feet of towing hawser made fast to the first barge to which the second was close coupled in tandem. There was a second section to the tow, but, as that came through safely and had nothing to do with the collision, no attention need be given to it. The tug checked her speed twice and made on alongside the wall into the lock. She did not shorten her hawser until she had passed in and stopped. In the meantime the barges, steered by their captains, had come up along the wall on which were mooring posts spaced approximately 75 feet apart with an attendant to take the lines. When the barges were "just passing the end of the long wall," as one witness put it, and certainly when they were not far from this end, the captains observed that a cross current was taking them away from the wall toward the bullnose. At the request of one of them, a heaving line was thrown by the attendant on the wall when the barges had drifted some 15 feet away and by means of it a 5½ or 6 inch line from one of the barges was passed over a mooring post about 150 feet from the westerly end of the wall. This line was 100 feet long. It was used to check the drift by snubbing while its length permitted and then made fast on the barge. This brought to bear sufficient strain to part it and let one of the barges drift over and strike the side of its stem on the bullnose, causing the other to come into the first barge stem to stern. In this way the damage was done to both boats.

Rule No. 40 of the New York State Barge Canal rules provides: "Length of tow lines: In passing into and out of Locks, no towing line in excess of 50 feet shall be used by towing floats."

William F. Purdy, of New York City (John E. Purdy, of New York City, of counsel), for libelants-appellees.

Stanley Gidley, of Buffalo, N.Y. (Arthur E. Otten, of Buffalo, N.Y., of counsel), for claimant-appellant.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

We agree with the finding of the District Court that the proximate cause of the collision was the failure of the tug to comply with the rule requiring it to use a towing line no longer than 50 feet when passing into this lock. Had that rule been heeded, the tug would have been near enough to the barges to have controlled their drift in the current and prevented the damage. The captain of the tug as much as admitted this when he testified, and it seems too self-evident for discussion. Nor can any contributory fault be cast upon the captains of the barges for not succeeding in the attempt to control them with the line to the mooring post. It was put out, while not perhaps at the very first instant it might have been, in a timely manner, before there was reason to believe it would be insufficient, and, when that fact was, or should have been, first realized it was too late to do more. The tug had virtually abandoned the barges to the mercy of the cross current, and they were thus rendered helpless to avert the collision.

It is thought by the claimant that these libels in rem will not lie against the tug, however, because it is claimed that the Independent Towing Company and the barge owners had by their agreement entered into a partnership into which the tug and barges had been put as partnership property. We think their agreement did create a partnership. They voluntarily joined in the business of general transportation of merchandise on the canal between New York and Buffalo. The principal contribution of one party was the motive power and that of the others the carrying capacity. All were to own an agreed interest in the net profits as such after expenses were paid. All the essential earmarks of a partnership were embodied in this agreement. Meehan v. Valentine, 145 U.S. 611, 12 S. Ct. 972, 36 L. Ed. 835; Ward v. Thompson, 22 How. 330, 16 L. Ed. 249.

But we are not now concerned with any effect of their agreement on third persons nor with the jurisdiction of the court of admiralty over a partnership contract. The claimant questions the right to maintain libels in rem against a tug to recover for a tort consisting in the negligent towage of barges by the tug where the use of the tug only has been contributed to the partnership by one partner, who has retained its exclusive management and operation, and the use only of the barges has been contributed by other partners, who have likewise retained for themselves the exclusive management and operation of their barges, subject only to an agreement by all the parties to manage and operate in the common interest as it might appear. The towing company did not put into the partnership the tugs themselves as property to become partnership assets, nor did the barge owners contribute their boats as physical property of the partnership. They each kept that part for themselves; but they did put into the partnership the right to use the tangible property as agreed. Their contribution in so far as the vessels are directly concerned was nothing more than motive power on the one hand and carrying capacity on the other. Each partner acquired an interest in the combination of these two things, though not in the vessels by means of which these things were furnished, since their agreement did not go that far and the intent of the partners sets the bounds to which among themselves, at least, the ownership of their own property is transferred to the partnership. In re Swift et al. (D.C.) 118 F. 348. It is even so where property is purchased with partnership funds. Hoxie v. Carr, 12 Fed. Cas. page 746, No. 6802. These partners had a community of interest in the profits, in whatever good will, contracts of carriage, or other intangible property the partnership acquired; indeed, they each had an interest in all partnership property of whatever kind. Yet the libelants did not own any part of the tug nor did the towing company have any proprietary interest in the barges. Consequently the partnership did not own any of the vessels. Under these circumstances we see no reason why the libelants may not maintain an action in rem against the tug for its negligent towing by which the barges were damaged. They are not seeking to enforce a lien on partnership property but on property which has been kept apart as its own by one of the partners who was the owner pro hac vice. The claimant, of course, is bound by the limitations of the partnership agreement made by the towing company to whom it chartered its tug.

Decrees affirmed.

Summaries of

The John E. Enright

Circuit Court of Appeals, Second Circuit
Apr 7, 1930
40 F.2d 588 (2d Cir. 1930)
Case details for

The John E. Enright

Case Details


Court:Circuit Court of Appeals, Second Circuit

Date published: Apr 7, 1930


40 F.2d 588 (2d Cir. 1930)

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