60 F.2d 737 (2nd Cir. 1932), 430, The T.J. Hooper

Docket Nº:430.
Citation:60 F.2d 737
Party Name:THE T. J. HOOPER. v. NORTHERN BARGE CORPORATION. THE NORTHERN NO. 30 AND NO. 17. THE MONTROSE. In re EASTERN TRANSP. CO. NEW ENGLAND COAL & COKE CO. H. N. HARTWELL & SON, Inc., v. SAME.
Case Date:July 21, 1932
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 737

60 F.2d 737 (2nd Cir. 1932)

THE T. J. HOOPER.

THE NORTHERN NO. 30 AND NO. 17.

THE MONTROSE.

In re EASTERN TRANSP. CO.

NEW ENGLAND COAL & COKE CO.

v.

NORTHERN BARGE CORPORATION.

H. N. HARTWELL & SON, Inc.,

v.

SAME.

No. 430.

United States Court of Appeals, Second Circuit.

July 21, 1932

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

Foley & Martin, of New York City (James A. Martin and John R. Stewart, both of New York City, of counsel), for Eastern Transp. Co.

Burnham, Bingham, Gould & Murphy, of Boston, Mass., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Charles S. Bolster and Miles Wambaugh, both of Boston, Mass., of counsel), for New England Coal & Coke Co. and another.

John W. Oast, Jr., of Norfolk, Va. and Crowell & Rouse, of New York City, for Northern Barge Corporation.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The barges No. 17 and No. 30, belonging to the Northern Barge Company, had lifted cargoes of coal at Norfolk, Virginia, for New York in March, 1928. They were towed by two tugs of the petitioner, the 'Montrose' and the 'Hooper,' and were lost off the Jersey Coast on March tenth, in an easterly gale. The cargo owners sued the barges under the contracts of carriage; the owner of the barges sued the tugs under the towing contract, both for its own loss and as bailee of the cargoes; the owner of the tug filed a petition to limit its liability. All the suits were joined and heard together, and the judge found that all the vessels were unseaworthy; the tugs, because they did not carry radio receiving sets by which they could have seasonably got warnings of a change in the weather which should have caused them to seek shelter in the Delaware Breakwater en route. He therefore entered an interlocutory decree holding each tug and barge jointly liable to each cargo owner, and each tug for half damages for the loss of its barge. The petitioner appealed, and the barge owner appealed and filed assignments of error.

Each tug had three ocean going coal barges in tow, the lost barge being at the end. The 'Montrose,' which had the No. 17, took an outside course; the 'Hooper' with the No. 30, inside. The weather was fair without ominous symptoms, as the tows passed the Delaware Breakwater about midnight of March eighth, and the barges did not get into serious trouble until they were about opposite Atlantic City some sixty or seventy miles to the north. The wind began to freshen in the morning of the ninth and rose to a gale before noon; by afternoon the second barge of the Hooper's tow

Page 738

was out of hand and signalled the tug, which found that not only this barge needed help, but that the No. 30 was aleak. Both barges anchored and the crew of the No. 30 rode out the storm until the afternoon of the tenth, when she sank, her crew having been meanwhile taken off. The No. 17 sprang a leak about the same time; she too anchored at the Montrose's command and sank on the next morning after her crew also had been rescued. The cargoes and the tugs maintain that the barges were not fit for their service; the cargoes and the barges that the tugs should have gone into the Delaware Breakwater, and besides, did not handle their tows properly.

The evidence of the condition of the barges was very extensive, the greater part being taken out of court. As to each, the fact remains that she foundered in weather that she was bound to withstand. A March gale is not unusual north of Hatteras; barges along the coast must be ready to meet one, and there is in the case at bar no adequate explanation for the result except that these were not well-found. The test of seaworthiness, being ability for the service undertaken, the case might perhaps be left with no more than this. As to the cargoes, the charters excused the barges if 'reasonable means' were taken to make them seaworthy; and the barge owners amended their answers during the trial to allege that they had used due diligence in that regard. As will appear, the barges were certainly not seaworthy in fact, and we do not think that the record shows affirmatively the exercise of due diligence to examine them. The examinations at least of the pumps were perfunctory; had they been sufficient the loss would not have occurred.

To take up the evidence more in detail, the bargee of the No. 30 swore that she was making daily about a foot to eighteen inches of water when she left Norfolk, and Hutson, her owner's agent in charge of her upkeep, testified that a barge which made five inches was unseaworthy. Some doubt is thrown upon the bargee's testimony because he had served only upon moulded barges and the No. 30 was flat-bottomed; from which it is argued that he could not have known just how much she really leaked. Nevertheless, he was a man of experience, who swore to a fact of his own observation. We cannot discredit him merely upon the hypothesis that he did not know how to sound his boat. It is not however necessary to depend upon the proof of her leaking when she left Norfolk; she began to leak badly under stress of weather before which she should have been staunch, at least so far that her pumps could keep her alive, and her pumps failed. She had two kinds, hand and steam, but the first could not be...

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