Dailey v. Carroll

• Decision Date: 11 December 1917
• Docket Number: 74.
• Citation: 248 F. 466
• Parties: DAILEY et al. v. CARROLL et al.
• Court: U.S. Court of Appeals — Second Circuit

248 F. 466

DAILEY et al. v. CARROLL et al.

No. 74.

United States Court of Appeals, Second Circuit.

December 11, 1917

Dailey & Ivins orally chartered from Carroll the scow Edna L. Woods at a price that 'included the captain.' This 'captain came with the scow,' was not paid by the charterer, and there was no arrangement that charterer could discharge him. Carroll admitted that he hired and paid the man. Libelants used this and many other scows in receiving and transporting to proper places of disposition rubbish and refuse gathered in the city of New York. Such scows were loaded under a dump on a pier in the East River.

While lying partly laden under the dump, and because her lines were improperly made fast, or not timely adjusted, the tide careened the Woods until her load slid off into the slip. The court below found that maladjustment of lines was the fault of the scow master, in that he did not watch them and the tide, but unwarrantably absented himself from the scow (where he lived). By contract with the city, libelants were obliged to dredge from the slip what had been dumped off the scow and filed this libel to recover from the scow owner such dredging expense, alleging that during all the chartered period the scow had 'a master in charge to look after the loading of said (scow) and to care for her as agent and servant of (Carroll) while engaged in the work' of (inter alia) receiving cargo. This allegation the answer of Carrol specifically admitted, notwithstanding which he denied all liability, and under the Fifty-Ninth rule in admiralty (29 S.Ct. xlvi) impleaded the city of New York, alleging that the loss of the cargo and the consequent cost of dredging was proximately caused by the negligence of the city's employes in sundry particulars not here necessary to mention. The trial judge deemed the allegations against the city not proven and dismissed the claim. As no assignment of error complains of such dismissal, the matter will not be considered further.

The court below entered decree requiring the scow owner to pay the expense caused by the aforesaid dumping of cargo, on the ground that the scow master, when he negligently left his lines in improper and dangerous condition, was the servant and agent of the owner (i.e., the respondent), who thereupon appealed from said decree.

Foley & Martin, of New York City (James A. Martin and George V A. McCloskey, both of New York City, of counsel), for appellant.

Alexander & Ash, of New York City (Mark Ash and Edward Ash, both of New York City, of counsel), for appellees Dailey and Ivins.

Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and Charles J. Nehrbas, Asst. Corp. Counsel, both of New York City, on the brief), for appellee city of New York.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

There is no doubt that the oral charter of the scow Woods, even though the owner sent with it a 'master' or laborer in his own pay, constituted a demise, and made the charterer a bailee. The Willie, 231 F. 865, 146 C.C.A. 61. This holding, repeatedly announced by this court in cases of which Hastorf v. Long, etc., Co., 239 F. 852, 152 C.C.A. 638, is a recent instance, has always been in respect of boats with no motive power, incapable of navigation in the sense of independently pursuing a course, and depends ultimately on the fact, commonly known, that the so-called 'captains' of such craft are no more than laborers or deckhands, who cannot reasonably be looked upon as are shipmasters exercising a real command, based on statute, custom, and historic law.

The single question argued is whether under such a charter the scowmaster for any purpose, or in respect of any duty remained the employe and therefore the agent of the man who alone had hired and could have discharged him-- i.e., the scow owner. Whether under the pleadings as...