159 F.2d 169 (2d Cir. 1947)
These appeals concern the sinking of the barge, “Anna C,” on January 4, 1944, off Pier 51, North River.1 The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered.2 The Grace Line, Inc., was the charterer of the tug, “Carroll,” of which the Carroll Towing Co., Inc., was the owner.3
The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge’s cargo of flour, and to the Pennsylvania Railroad Company for expenses in salving the cargo and barge.4 It held the Carroll Company also liable to the Conners Company for one half the damage to the barge.5 These liabilities were all subject to limitation.6
The decree in the libel suit held the Grace Line primarily liable for the other half of the damage to the barge, and for any part of the first half not recovered against the Carroll Company because of limitation of liability.7 It also held the Pennsylvania Railroad secondarily liable for the same amount that the Grace Line was liable.8 The Carroll Company and the Pennsylvania Railroad Company have filed assignments of error.9
On June 20, 1943, the Conners Company chartered the barge, “Anna C,” to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a bargee, apparently limited to the hours 8 A.M. to 4 P.M.10 On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52.11 At some time not disclosed, five other barges were moored outside her, extending into the river.12 Her lines to the pier were not then strengthened.13
The Grace Line, which had chartered the tug, “Carroll,” sent her down to the locus in quo to “drill” out one of the barges which lay at the end of the Public Pier.14 In order to do so it was necessary to throw off the line between the two tiers.15 On board the “Carroll” at the time were not only her master, but a “harbormaster” employed by the Grace Line.16 The captain of the “Carroll” put a deckhand and the “harbormaster” on the barges.17 He told them to throw off the line which barred the entrance to the slip, but before doing so to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river.18 The “harbormaster” and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the “Anna C,” to the pier.19
After doing so, they threw off the line between the two tiers and again boarded the “Carroll,” which backed away from the outside barge, preparatory to “drilling” out the barge she was after in the tier off the Public Pier.20 She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the “Anna C,” either rendered or carried away.21 The tide and wind carried down the six barges, still holding together, until the “Anna C” fetched up against a tanker, lying on the north side of the pier below — Pier 51 — whose propeller broke a hole in her at or near her bottom.22 Shortly thereafter, at about 2:15 P.M., she careened and dumped her cargo of flour. She sank. The bargee had left her on the evening before, and nobody was on board to observe that she was leaking.23
The Grace Line wishes to exonerate itself from all liability because the “harbormaster” was not authorized to pass on the sufficiency of the fasts of the “Anna C” which held the tier to Pier 52.24 The Carroll Company wishes to charge the Grace Line with the entire liability because the “harbormaster” was given an over-all authority.25 Both wish to charge the “Anna C” with a share of all her damages, or at least with so much as resulted from her sinking.26 The Pennsylvania Railroad Company also wishes to hold the barge liable.27 The Conners Company wishes the decrees to be affirmed.28
Whether the Grace Line should be held liable for any part of the damages based on the harbormaster's authority to check the fasts of the Anna C?29
Yes. The harbormaster was an employee of the Grace Line.32 The captain of the Carroll put the deckhand and the harbormaster aboard the boats at the end of Pier 52.33 He told them to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so.34 This finding establishes that the master deputed the harbormaster jointly to pass upon the sufficiency of the Anna C's fasts to the pier.35
The harbormaster was not instructed what he should do about the fasts but was allowed to use his own judgment.36 Therefore the Grace Line is responsible for his negligence in failing to ensure the fasts were adequate before the line was thrown off.37
The Grace Line is liable for damages resulting from the inadequate mooring of the Anna C.38
Whether the Conners Company should bear a share of the damages to the Anna C because of the bargee's absence from the vessel?39
Liability for a vessel breaking from her moorings depends upon whether the burden of adequate precautions is less than the probability that she will break away multiplied by the gravity of the resulting injury.40 This is expressed as B < PL.41 A barge owner reduces recovery proportionately when the bargee's absence constitutes a failure of proper care during working hours without excuse.42
Yes. The bargee left at five o'clock in the afternoon of January 3rd and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards during working hours of daylight.43 The bargee had been away all the time and his fabricated story was affirmative evidence that he had no excuse for his absence.44 At the locus in quo barges were being constantly drilled in and out, making it a fair requirement that the Conners Company should have a bargee aboard during the working hours of daylight.45
If the bargee had been on board he would have examined the injury and called for help from the Carroll and the Grace Line tug, which could have kept the barge afloat and avoided the sinking damages.46
The Conners Company bears one third of the sinking damages to the Anna C.47
Whether the Carroll Company and the Grace Line are liable for collision damages and sinking damages to the Anna C and its cargo?48
A tug owner and charterer that negligently cause a flotilla to break adrift are liable in full for collision damages sustained when the barge strikes another vessel.49 They are liable for one third each of the sinking damages when the barge owner's own negligence in leaving the vessel unattended contributes to the loss.50
Yes. The tier off Pier 52 broke adrift because the fasts from the Anna C either rendered or carried away after the harbormaster and deckhand readjusted them.51 The tide and wind carried the six barges until the Anna C fetched up against a tanker.52 The tanker's propeller broke a hole in her at or near her bottom.53
Shortly thereafter she careened and dumped her cargo of flour.54 She sank at about 2:15 P.M.55 The Carroll Company and the Grace Line are liable in full for the collision damages because the absence of the bargee did not contribute to the breakaway itself.56 They are each liable for only one third of the sinking damages because the bargee's absence prevented timely discovery of the leak and a call for assistance from the tugs that had syphon pumps on board.57
The Carroll Company and the Grace Line are liable for full collision damages and one third each of the sinking damages to the Anna C and its cargo.58