Eastern S.S. Corporation v. Great Lakes Dredge & Dock Co.

• Citation: 256 F. 497
• Decision Date: 07 March 1919
• Docket Number: 1355.,1354
• Parties: EASTERN S.S. CORPORATION v. GREAT LAKES DREDGE & DOCK CO. GREAT LAKES DREDGE & DOCK CO. v. EASTERN S.S. CORPORATION.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

256 F. 497

EASTERN S.S. CORPORATION v. GREAT LAKES DREDGE & DOCK CO.

GREAT LAKES DREDGE & DOCK CO. v. EASTERN S.S. CORPORATION.

Nos. 1354, 1355.

United States Court of Appeals, First Circuit.

March 7, 1919

Charles E. Kremer, of Chicago, Ill., and Fitz-Henry Smith, Jr., of Boston, Mass., for Great Lakes Dredge & Dock Co.

Edward S. Dodge, of Boston, Mass., and Benjamin Thompson, of Portland, Me., for Eastern S.S. Corporation.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

No 1355 is an appeal from a decree of the District Court for Massachusetts, dismissing the petition of the Great Lakes Dredge & Dock Company, brought under sections 4283-4289 of the Revised Statutes (Comp. St. Secs. 8021-8027), to have its liability to the Eastern Steamship Corporation for a collision between the corporation's steamship, the Massachusetts, and the dredge company's drillboat No. 4 determined, and, if liable, the damages limited.

Appeal No. 1354 arises out of the subject-matter of the appeal in No. 1355 and involves certain questions that become material only in case the dredge company is held liable for the collision, but is entitled to have its damages limited.

The collision occurred July 5, 1913, at about 8:18 a.m., at which time the drillboat lay submerged in the channel of Boston Harbor on what is known as the Spectacle Island upper ledge. Under the direction of the court the drillboat was appraised as she lay on the bottom at $13,568, and a stipulation for that amount was filed by the dredge company.

In the District Court the dredge company was held personally and solely at fault, and damages were assessed at $70,499.65 with costs of $617.92.

We fully agree with the findings and rulings of the court below that the dredge company was at fault in that its subordinate agents and servants failed to exercise reasonable care to mark the drillboat after it was sunk, and that the Massachusetts was not at fault in failing to discover the wreck in season to avoid the collision. The dredge company however, contends that it was not personally at fault; that on a fair consideration of the evidence contained in the record, it was without that privity or knowledge essential to charge it with personal responsibility.

The evidence discloses that drillboat No. 4 was about 132 feet long, 33 feet beam, and about 8 feet deep; that it was divided into five water-tight compartments, and carried a boiler, drilling machinery, four two-cylinder engines, and other apparatus used in connection with its work. It was built of steel, and, when at work on a ledge, was held in place by four spuds or iron legs 65 1/2 feet long, about 23 1/2 inches square, and weighing 12 1/2 tons each. The spuds were moved up and down in casings about 13 feet long. The casings at their lower ends were flush with the bottom of the boat and extended above the deck about 6 feet. The spuds were located near the corners of the boat, and their lower ends, which were tapered to about 6 or 8 inches square, rested on the ledge or bottom. They were raised or lowered by steam engines operating geared pinions engaged in a rack on each spud. There was a valve on the engines, which, on being turned in a given direction, would permit the engines automatically to aid in moving the spuds up or down according as the tide rose or fell. When the spuds stood perpendicularly, the boat would work up and down automatically with the tide; but sometimes they would jam, and to provide for such cases steam was kept on the engines. The drillboat was towed from the Great Lakes around through the St. Lawrence to Boston Harbor. When being towed, the spuds are raised and held by pawls fastened to the deck.

In the summer of 1913 the dredge company had a contract with the United States government for the removal of ledges in Boston Harbor. Under this contract drillboat No. 4 had been at work for about two weeks before the accident on a ledge almost in the center of the deep channel, which at that point was something over a quarter of a mile wide. There was some twenty-six feet of water over the ledge, so that only vessels of very deep draft paid any attention to it. It was the plan of the government to make a 35-foot channel which would be safe for ships of the deepest draft. No work was done by the drillboat during the day and night of July 4. About 6 o'clock on the evening of July 4, the night crew, when the drill was not working, consisting of Folz and Murphy, went aboard. Folz acted as watchman and mechanic; Murphy acted as fireman. High water occurred about midnight. In the neighborhood of 1 o'clock Folz, who had been working in the pump room, noticed that the drillboat had taken a pronounced list. He went on deck and found that the two front spuds had jammed, so that that side was not lowering with the tide, but was then from a foot to 15 inches higher than the back side of the boat. He tried to start the spuds with the engines, but was unsuccessful. He then called Murphy, and they worked at the spuds with bars, but with no better success. As the tide continued to ebb, the boat tilted more and more. Attached to the drillboat were two scows carrying dynamite, a yawlboat, and a rowboat. About 1:45 a.m., finding that the drillboat was sliding and about to tip over, they jumped upon one of the dynamite scows. One of the two ropes which held the scows to the drillboat, being entangled with the fenders hanging over the side of the drillboat and it being dark, they cut, and the other parted when the drillboat tipped over.

There were plenty of oars for the yawlboat and the rowboat on the deck of the drillboat, but they were washed overboard before the men took to the scows, and there was only one oar in the yawlboat. The scows and yawlboat with the men drifted on the outgoing tide towards the lower harbor until about 3:30 a.m., when they were picked up by the tug Sadie Ross and were slowly hauled up past the sunken drillboat No. 4 to drillboat No. 8, belonging to the dredge company, and which was located about 6,400 feet further up the harbor. As they came past drillboat No. 4, it would have been entirely feasible for them to have stopped and anchored the yawlboat to the sunken drillboat, whose sand pipes were then extending out of the water some 3 and 6 feet, respectively, and thus have marked it as a warning. This, however, was not done. They reached drillboat No. 8 at about 5:30 a.m. About 6 a.m. a Boston police boat called at drillboat No. 8 and inquired if the men who had been adrift were there, and on receiving an affirmative answer left, without being told of the wreck or asked to mark it. About 6:15 or 6:20 the day crew of No. 4 arrived at drillboat No. 8, with Hancock, the foreman of No. 4, and after making observations of the wreck, and seeing that the sand pipes were projecting out of the water, as he thought some 2 1/2 and 5 or 6 feet, Hancock went ashore with the men, including Folz, to find Superintendent Williams. While they were ashore looking for Mr. Williams, the steamship Massachusetts came in from New York and at about 8:18 ran into the wreck, which was then submerged.

In considering the right of the dredge company to a limitation of its liability under section 4283, it is necessary to determine whether its drillboat No. 4 was a vessel, as defined in section 4289, as amended by Act June 19, 1886, c. 421, Sec. 4, 24 Stat. 80 (Comp. St. Sec. 8027).

The word 'vessel,' as there defined, applies 'to all seagoing vessels, and also to all vessels used on lakes or rivers in inland navigation, including canal boats, barges and lighters,' and has been held to include a barge without motive power used for transporting excursion parties (In re Myers Excursion & Navigation Co. (D.C.) 57 F. 240; The Republic, 61 F. 109, 9 C.C.A. 386); a mud scow used in Boston Harbor for moving mud (In re Eastern Dredging Co. (D.C.) 138 F. 942); a scow originally constructed and used for carrying stone, and later provided with a derrick and used for raising stone (The Sunbeam, 195 F. 468, 115 C.C.A. 370); and a scow carrying a pile driver permanently attached thereto (In re Sanford Ross (D.C.) 196 F. 921, Id., 204 F. 248, 122 C.C.A. 516).

Revised Statutes, Sec. 3 (Comp. St. Sec. 3), defines what craft are vessels for the purposes of the maritime law, and in In re Eastern Dredging Co. (D.C.) 138 F. 942, 944, it was held that 'all craft which are vessels for the purposes of the maritime law are vessels within the intent of the act as it now stands,' meaning within the intent of the act of 1851 (sections 4283-4289) as amended in 1886. In the case of Charles Barnes Co. v. One Dredgeboat (D.C.) 169 F. 895, Judge Cochran, after an extended review of the cases in an endeavor to ascertain what was a vessel within the meaning of section 3, held that a navigable structure, intended for the transportation of a permanent cargo, and that had to be towed in order to navigate was a vessel. The vessel there in question was a pumpboat. It consisted of a floating structure, equipped with an engine, boiler, pumps, pipes, and capstans, which were permanently attached, and it was used for pumping out coal barges.

Drillboat No. 4 was a navigable structure having a permanent cargo viz. its engines, boiler, drilling machinery, etc., which it transported from place to place for the purpose of removing ledges in navigable waters and as an aid to commerce and navigation. It was not a floating dry dock intended to be permanently moored, as was the case in Cope v. Vallette Dry Dock Co., 119 U.S. 625, 7 Sup.Ct. 336, 30 L.Ed. 501; but was intended and used for the transportation of a cargo which it carried from place to place to remove ledges. We are therefore of the opinion that it was a vessel, within...