The opinion of the court was delivered by: MOSCOWITZ
On June 2, 1943, the libellant, Conners Marine Co., Inc., as owner of the covered barge Anna C. entered into an agreement with the respondent, Pennsylvania Railroad Company, wherein the libellant agreed to let and charter the Anna C to the respondent and the respondent agreed to charter and lease the Anna C from the libellant for an indefinite period of time at an agreed rate of charter hire per diem. This was the usual oral harbor charter. The Anna C was delivered to the respondent in good condition and returned in damaged condition on or about January 5, 1944.
On January 2, 1944, the Anna C, loaded with flour owned by the United States of America, was left at Pier 58 Manhattan, North River, to which pier she had been consigned. Subsequently she was shifted from Pier 58 to Pier 52 and left on the end of Pier 52. Five other barges were subsequently placed outside of the Anna C. Four barges lay at the Public Pier to the north of Pier 52. In order to strengthen the moorings of the barges at the end of Pier 52, a line was run from the barge O'Hara, the fourth barge of the tier, to the barge Erie R.R., the latter barge the fourth barge in a tier of four barges at the end of the Public Pier, the Public Pier being to the north of Pier 52. The position of the six barges or scows at the end of Pier 52 and the four barges or scows at the Public Pier are shown in the diagram, Conners Marine Co., Inc., Exhibit 1. The Anna C had one line out to Pier 52 from its down-river corner which was doubled up in three parts. She had another line which was in a single part from its up-river corner to the corner of the pier. These lines were practically new, in good condition and were from 5 1/2 to 6 inches.
On January 4, 1944, Burn, a harbor master employed by the Grace Line, Inc., ordered the tug Joseph F. Carroll, which was working as a shifting tug for the Grace Line, Inc. to shift the barge Camden, being the second barge in the tier of four at the end of the Public Pier, to a designated berth at Pier 58, North River. At this time the tide was at the strength of the ebb. The captain of the Carroll on arriving at the end of Pier 52 saw the line running between the tiers of boats on the two piers and concluded that it was necessary to remove this line which was obstructing the tug Carroll's way into the Camden. Thereupon the captain of the Carroll placed the harbor master who was riding on the tug and his deckhand on the tier of barges at the end of Pier 52. The deckhand and Brun, the harbor master, went on the tier of boats at the end of Pier 52 and readjusted the lines between the boats at the end of Pier 52, taking in slack and doubling up some of the lines and readjusting the lines between the Anna C at the end of Pier 52. After completing this, either the harbor master or the deckhand or both threw off the lines between the two tiers of boats and returned to the tug. The tug master, without inquiring, assumed that the condition was safe and moved the tug from the tier of boats at the end of Pier 52, to which the tug Carroll had previously been made fast with a line from the tug to the Pennsylvania R.R., the end boat of the tier, and upon which the tug had kept a strain to hold up the boats while the harbor master and deckhand were adjusting the lines between the boats at the end of Pier 52 and readjusting the lines between the Anna C and the end of Pier 52. the tug had moved away about 75 feet from the tier of boats when the tier broke adrift.
Prior to the time that the harbor master and the deckhand of the tug adjusted the lines, the Anna C was safely made fast and lying properly. Had they left the Anna C as she was, there would have been no accident. Had they adjusted her lines properly and also had another line been placed between the two tiers or another tug been used to assist the Carroll, there would have been no accident. In order to obtain access to the Camden, which was to be removed from the Public Pier, it was necessary to remove the line extending between the barge Erie R.R., moored at the Public Pier, and the barge O'Hara, moored at Pier 52. The duty of the harbor master was to give orders to the tug and to aid and arrange the lines. It is not clear from the testimony whether the deckhand of the tug or the harbor master actually removed the lines from the barges at the Public Pier and Pier 52. However, there was an understanding between the harbor master, the master of the tug and the deckhand that that was a necessary operation. The harbor master and the deckhand required no specific directions from the master of the tug to rearrange the line on the Anna C. This was a voluntary act on the part of the harbor master; it was his custom and his duty to perform such tasks and while so performing he was not acting in the capacity of a deckhand of the tug; he was acting in his capacity as an employee of Grace Line, Inc. If he had been acting merely as a deckhand assisting the master of the tug, although employed as harbor master by Grace Line, Inc., there would be no liability on the part of Grace Line, Inc. However, it appears that his duties were quite different. It was his duty, jointly with that of the master of the tug, to give orders and directions. This had been his custom, it is assumed, with the knowledge and consent of his employer, Grace Line, Inc. It appears from the proof that in this undertaking, which was negligently performed, the tug and the harbor master were acting together and the tug and Grace Line, Inc., should be held jointly responsible.
At the time the lines were shifted by the harbor master and the deckhand on the Anna C, it is believed that the captain of the barge Anna C was absent. The testimony is in conflict with reference to this. The absence of the captain of the Anna C did not in any wise contribute to the accident. He was not required to anticipate negligence of the harbor master, the master and deckhand of the tug Carroll. Under the circumstances here disclosed, the absence of the captain is not in itself negligence. See The Kathryn B. Guinan, 2 Cir., 176 F. 301; United States Trucking Corporation v. City of New York, D.C., 14 F.2d 528; Schmutz v. Pennsylvania Railroad Company,
1926; The Baltimore,
1934; The Trenton, 2 Cir., 72 F. 283.
It is doubtful that the tug and Grace Line, Inc., should have undertaken the operation of removing the Camden without either securing an additional tug or placing a line from the barge O'Hara at Pier 52 to another one of the barges at the Public Pier. The removal of the line between the barges at Pier 52 and the Public Pier placed a strain upon the lines of the Anna C. The accident was caused through the joint fault of the tug Carroll in not properly protecting the Anna C while engaged in the removal of the Camden from the Public Pier. If a line had been placed from the barge O'Hara at Pier 52 to one of the barges at the Public Pier or if the lines of the Anna C had been properly adjusted by the harbor master and the deckhand or if another tug had been used, the accident would have been avoided. It has been stipulated that the Carroll Towing Line, Inc., is entitled to limitation of its liability.
The libellant, Conners Marine Co. Inc., as the owner of the barge Anna C, is entitled to recover damages sustained by it from the Carroll Towing Line, Inc., as owner of the tug Joseph F. Carroll, and from Grace Line, Inc., primarily, and from Pennsylvania Railroad Company, the charterer of the said barge, secondarily.
The United States of America is entitled to a decree for damage to the cargo.
1. Libellant, Conners Marine Company, Inc., is a domestic corporation and was and still is the owner of the covered barge Anna C.
2. Respondent, Pennsylvania Railroad Company, is a corporation and has goods, chattels and credits within this district.
3. On or about June 2, 1943, the libellant made and entered into an agreement with the respondent whereby the libellant agreed to let and charter the covered barge Anna C to the respondent and the respondent agreed to charter and lease the said barge from the libellant for an indefinite period of time at an agreed rate of charter hire per diem. The libellant delivered the said barge to the respondent and the respondent accepted the delivery thereof from the libellant.
4. The agreement of the charter and the delivery of the barge to the respondent ...