121 F.2d 190 (2nd Cir. 1941), 353, Quinn v. Southgate Nelson Corp.

Docket Nº:353.
Citation:121 F.2d 190
Case Date:June 30, 1941
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 190

121 F.2d 190 (2nd Cir. 1941)




No. 353.

United States Court of Appeals, Second Circuit.

June 30, 1941

Page 191

Tompkins, Boar & Tompkins, of New York City (Arthur M. Boal, of New York City, of counsel), for appellant.

Gazan & Caldwell, of New York City (Simone N. Gazan, of New York City, of counsel), for appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

On the morning of January 10, 1939, the S.S. Waukegan-- owned by the United States Maritime Commission and operated under a contract with the Commission, by the appellant as 'Managing Agent' -- was proceeding up the Delaware and Chesapeake Canal at St. Georges, Delaware, and while attempting to pass through the center span of the St. Georges Bridge, which was fully opened to permit the vessel passage, crashed into the bridge, causing the death of appellee's intestate, who was on the bridge performing his duties as bridge tender. Appellee recovered damages in the amount of $20, 000 for the wrongful death of appellee's intestate, and appellant appeals from this judgment.

At the trial it was shown that the accident occurred on a clear day, with normal tide and current, and light wind. Finding no other satisfactory explanation for the accident, the trial judge applied the doctrine of res ipsa loquitur, and held that appellant was at fault. He concluded that the probable cause of the accident was the ship's inability, because of improper trim caused by poor loading, to respond to her rudder, but held that, in any case, appellant was negligence and to the court's holding that, as managing agent, it was responsible for the acts of the master, officers, and crew of the Waukegan.

Under the contract, appellant was to 'manage, operate and conduct the business of the line' and 'to man, equip, victual, supply and operate the vessels, subject to such restrictions and in such manner as the owner may prescribe '. The Maritime Commission retained a power of veto over the agent's selection of licensed officers. In return for these services, the managing agent received from the Maritime Commission all its operating costs and its overhead expenses, but received no share of the profits and did not bear any part of the losses. Appellant argues that by this contract it operated the vessel for the account of the Maritime Commission, and that, in...

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