Smith v. Bouker
| Citation | 49 F. 954 |
| Parties | SMITH v. BOUKER, (two cases.) |
| Decision Date | 14 December 1891 |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Wing Shoudy & Putnam, (Harrington Putnam, of counsel,) for appellee.
Before WALLACE and LACOMBE, Circuit Judges.
This is an appeal from a decree for the libelant for the value of a scow. Smith chartered the scow of Bouker at an agreed price per day, to be used in transporting a building from one location to another. The transportation necessitated the use of a tug, and Smith engaged Jaycox, with his tug and crew. While the tug was towing the scow, she ran aground, and before she could be got off, and the scow was taken to a place of safety, a storm arose, and the scow was so injured as to be practically worthless.
We are satisfied that there is no merit in any of the specific allegations of fault set forth in the libel. It was a suitable time to start upon the trip. The scow was to be taken through a channel from Rockaway inlet, and thence a short distance on the open sea. It was necessary to proceed when there was high water in the channel, and it was high water then. A storm was approaching, and it was probable that if the trip were postponed until high water again the sea would be too rough, perhaps for several days, to permit the scow to be towed safely. Any delay consequent upon the postponement would have been at the expense of the charterer. Jaycox was interested in having such a delay, as he would get pay for his tug in the mean time; and his protests about the danger of starting at that time were prompted, we think, by this motive. There is as little merit in the other allegations which set forth that the tug was of insufficient capacity to handle the scow, or that the scow should not have been taken through the channel. The accident was caused by the incompetency of Hults, who was familiar with the channel and was on board the tug for the trip, not to assist in her management, but to give Jaycox the benefit of his knowledge of the channel. He was not experienced in steering a tug and scow sufficiently to be intrusted with that duty in the difficult passage through the channel. Jaycox should have stood by the wheel. Instead of doing so, he deserted it, and asked Hults to take the wheel. Hults did the best he could but could not control the tug, as she was influenced by the scow, and ran her aground. The case seems to be one in which the libelant in the...
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