Boston Towboat Co. v. Darrow-Mann Co., 1491

• Citation: 276 F. 778
• Decision Date: 29 November 1921
• Docket Number: 1491,1492.
• Parties: BOSTON TOWBOAT CO. v. DARROW-MANN CO. ADAMS et al. v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

276 F. 778

BOSTON TOWBOAT CO. v. DARROW-MANN CO.

ADAMS et al. v. SAME.

Nos. 1491, 1492.

United States Court of Appeals, First Circuit.

November 29, 1921

Appeals from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.

Suits in admiralty by the Boston Towboat Company and by Charles F Adams and others, against the Darrow-Mann Company. Decrees for respondent, and libelants appeal. Affirmed.

For opinion below, see The Bessie J., 268 F. 66.

1. Shipping 209(3)-- Sinking of loaded barge at dock held due to want of attention by master.

Findings of the trial court that the sinking of a barge at a dock some hours after she had been loaded with coal, was due to the failure of her master to remain on board and give attention to her pump, and that the company loading her was not responsible therefor, because the loading was properly done in accordance with the directions of the master, held sustained by the evidence.

2. Shipping 208-- Owner held barred by privity from right to limitation of liability for sinking of unattended barge.

A finding that the owner of a barge, which sank at a dock because her master left her unattended at night after loading with coal, was not entitled to limitation of liability on the ground that it had knowledge of a custom of its masters to so leave their vessels, though contrary to instructions, held supported by the evidence.

3. Shipping 208-- Privity or knowledge of assistant manager of towboat company held that of the company.

Privity or knowledge of the assistant manager of a towboat company who, though not an officer of the company, had the charge and management of its boats, of a custom of its barge masters to leave them unattended at night, while lying loaded in docks held the privity or knowledge of the company.

Edward E. Blodgett and Foye M. Murphy, both of Boston, Mass. (Blodgett, Jones, Burnham & Bingham, of Boston, Mass., on the brief), for appellants.

Harry Le Baron Sampson, of Boston, Mass. (Hutchins & Wheeler, of Boston, Mass., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON Circuit Judge.

The first of these actions is a petition for limitation of liability by the Boston Towboat Company, as owner of the barge Bessie J., and the second is a cross-libel by the trustees of the Boston Towboat Company to recover damages occasioned by the improper loading of the barge by the Darrow-Mann Company and its failure to properly care for her after she was loaded.

On the afternoon of March 5, 1917, the Bessie J. was towed to the wharf of the Darrow-Mann Company in Charlestown, Mass., where she was to be loaded by that company with coal, which was to be carried to the wharf of Batchelder Bros., also in Charlestown. On board of her at that time was a master, Capt. Pendleton, whose duties, as testified by Capt. Nickerson, assistant manager of the Towboat Company, were-- 'to take care of his barge, see that she was loaded properly, report any accident, any damage to her in any way and keep his barge in proper shape to take cargo.'

The loading of the barge was commenced about 3 o'clock and continued until about 5 o'clock p.m., when about 175 tons had been placed in her two after hatches. Work was then discontinued until the night gang came on and Capt. Pendleton, master of the barge, went to his home in East Boston for the night, leaving no one in charge of the barge, although there was testimony that he was told that the loading would be completed that night. The night crew of the Darrow-Mann Company completed the loading of the barge about 9 o'clock that night, by putting aboard of her about 400 tons of coal, making, with what had been loaded in the afternoon, about 575 tons, which was within her carrying capacity. She lay at the wharf of the Darrow-mann Company until about 6:30 o'clock the next morning, when she sank stern first. Before she sank, a tug was sent by the Boston Towboat Company to take her in tow, and Capt. Pendleton came over on it. He saw the Bessie J. before she sank, and there was testimony that he said that she was properly loaded and stated that he could companies, in which it was stated that the cause of the sinking was unknown. The barge was not raised until the afternoon of May 12, 1917. The cost of raising and repairs is the subject of the suit by the trustees of the Boston Towboat Company, while the obstruction of their dock by the sunken barge is the basis of the claim of the damage claimant, the Darrow-Mann Company.

The District Court found that the proximate cause of the sinking of the barge was the failure of the master, Capt. Pendleton, to stay aboard of her after she was loaded; that she was equipped with a gasoline pump of sufficient capacity to have prevented her sinking, if there had been any one aboard of her to operate it; that the loading was done in accordance with instructions of her master, whose duty it was to have remained aboard his barge while she was being loaded and after the loading was completed; that while the placing of 175 tons of coal in her two after hatches, when her forward hatches were empty, might have strained the barge and caused her to leak, yet, as this was done under instructions of the master, the Darrow-Mann Company was relieved of all liability therefor, and the libel of the trustees was ordered to be dismissed.

There was evidence tending to show that, after Capt. Pendleton left his barge unattended, the night crew of the Darrow-Mann Company completed the loading in accordance with his instructions, by placing no coal in the two forward hatches, which gave her stern the necessary drag to cause water to run to her gasoline pump.

The Bessie J. was originally a schooner built in 1879, and converted into a barge in 1912. She been used for some time as an outside barge, and then as a lighter in New York Harbor, and later about Boston Harbor. She had been aground and her whole stern rebuilt. She had also received quite extensive repairs in 1914 and in 1916. There was evidence tending to show that she had leaked badly on several different occasions. She was an old vessel, and when loaded needed watching. Capt. Pendleton had been on her for several years and should have known that it was unsafe to leave her, when loaded, with no one aboard. While the Darrow-Mann Company had a watchman who made the rounds of its wharf every hour, it was no part of his duty to go aboard the Bessie J. and examine her condition. She was loaded deeply, and he testified that there was nothing unusual in her appearance, which attracted his attention, although he saw her only a short time before she sank.

The members of the night gang, who completed the loading of the barge, testified that they saw no...