Cranberry Creek Coal Co. v. Red Star Towing & Transp. Co.

• Decision Date: 10 June 1929
• Docket Number: No. 298-302.,298-302.
• Citation: 33 F.2d 272
• Parties: CRANBERRY CREEK COAL CO. v. RED STAR TOWING & TRANSP. CO., and four other cases.
• Court: U.S. Court of Appeals — Second Circuit

33 F.2d 272 (1929)

CRANBERRY CREEK COAL CO. v. RED STAR TOWING & TRANSP. CO., and four other cases.

Nos. 298-302.

Circuit Court of Appeals, Second Circuit.

June 10, 1929.

Barry, Wainwright, Thacher & Symmers, of New York City (Earle Farwell, of New York City, of counsel), for the Wessels.

William J. Mahar, of New York City, for the Liberty and the Cranberry Creek Coal Co.

Macklin, Brown, Lenahan & Speer, of New York City (J. Dudley Eggleston, of New York City, of counsel), for the Harry Howard, the Rita Howard, and the Irvington.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for the tug.

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

L. HAND, Circuit Judge (after stating the facts as above).

As in collision, so in towing, a vessel does not, of course, become liable for all damage arising from her navigation or unfitness; she is not an insurer, and the injured party must establish some fault through neglect or affirmative misconduct. But there are situations in which the law does not put the duty upon the sufferer to make proof at the outset; either because the facts are especially within the owner's knowledge, or, as in the case of collisions with an anchored vessel, because usually there must be some fault, it is thought just to require the owner to explain, and if he does not, to charge him. A failure of machinery or gear is within this class of cases and the owner's duty is often spoken of as the defense of "inevitable accident." Strictly, it is no defense at all, but a true presumption; that is to say, a duty laid upon him to supply proof which casts him if he fails.

This duty extends not only to disclosing what happened, but what was done to avoid, and what would have been necessary to prevent it. After he has done so, no doubt the burden remains upon the injured party to show that the necessary care was not beyond what the law exacts, but the owner is in no position to demand consideration of that question until he has made his proof. We have enforced this rule under a variety of circumstances (The J. Rich Steers (C. C. A.) 288 F. 319; In Re Reichert Towing Line (C. C. A.) 251 F. 214; The Westchester (C. C. A.) 254 F. 576; The Columbia (C. C. A.) 255 F. 515); and it is not at all peculiar to us (The Olympia, 61 F. 120, 122, 123 (C. C. A. 6); The City of Camden, 292 F. 93 (C. C. A. 3); The Merchant Prince, 1892 Prob. Div. 179 (C. A.). It makes no difference whether the case involves a collision, towage, or, for example, the local statute against dumping refuse in New York Harbor.

In the case at bar the respondent showed nothing at all as to what it had done to provide a seaworthy stud. The tug was 25 years old at the time, and, so far as appeared, the stud may have been in continuous use all the time. When she was overhauled shortly before the break, nothing was done to ascertain that it was still serviceable. Whether metal degenerates with age under such circumstances we cannot tell, nor how often such a member should be examined and replaced. The reason for the break we are left to guess by inspection. It was quite immaterial that the nuts were screwed home; that would have been important only if they had worked loose. The proof stopped precisely at the critical point; it showed what the defect was, but not what was necessary to detect and provide against it. The liability was therefore established.

On the other hand, the failure of the barges to let go their anchors might have been a true defense. This could not, indeed, apply to the Harry Howard, which did what she could, nor to the Liberty and the Irvington, which were the middle barges in the second and third tiers and could not let go their anchors, unless they cut adrift, which they were neither called upon to do, nor justified in doing without orders. It was important only as to the Rita Howard and the Wessels. As to the first the argument is that the bargee should have heaved her anchor over the starboard rail so as to clear the Harry Howard, made fast close ahead. As we think that no adequate orders were given in any case, and as that is an answer both as to...