Guinan v. Boston, Cape Cod & New York Canal Co.

• Decision Date: 16 July 1924
• Docket Number: No. 325.,325.
• Citation: 1 F.2d 239
• Parties: GUINAN et al. v. BOSTON, CAPE COD & NEW YORK CANAL CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

1 F.2d 239 (1924)

GUINAN et al. v. BOSTON, CAPE COD & NEW YORK CANAL CO. et al.

No. 325.

Circuit Court of Appeals, Second Circuit.

July 16, 1924.

Glenn & Ganter, of New York City (Garrard Glenn and William B. Walsh, both of New York City, of counsel), for appellant Boston, Cape Cod & New York Canal Co.

Blodgett, Jones, Burnham & Bingham, of Boston, Mass., for appellant New England Fuel & Transportation Co.

Leo J. Curren, of New York City, for appellees Guinan and Garner.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

ROGERS, Circuit Judge.

The libelant Guinan is a citizen and resident of the state of New York, and he maintains an office in the borough of Manhattan in the city of New York. At the times hereinafter mentioned he was the owner of the barge Kathleen, which he used in his business of transporting merchandise by water, and which was without motive power of its own. It is alleged that prior to the damage hereinafter mentioned the barge was tight, staunch, and strong. The libelant Garner was the master of the Kathleen at the times mentioned herein.

The Boston, Cape Cod & New York Canal Company, a respondent, is a corporation organized and existing under the laws of the state of Massachusetts, but at all the times herein mentioned it has maintained an office in the borough of Manhattan in the city of New York for the transaction of business. It is hereinafter called the Canal Company. The New England Fuel & Transportation Company, also a respondent, is likewise a corporation organized and existing under the laws of the state of Massachusetts. It also maintains an office for the transaction of business in the borough of Manhattan in the city of New York. It is hereinafter called the Transportation Company.

The Canal Company, in accordance with its charter powers, constructed, or caused to be constructed, and owned, maintained, and operated, a tidewater ship canal for the passage of water craft between Buzzard's Bay and Cape Cod or Barnstable Bay, Mass. It imposed and collected tolls upon all water craft using the canal for purposes of passage, being authorized thereto by charter.

The libel alleges upon information and belief as follows: On the 16th day of June, 1918, the barge was under charter to one James Hughes, Jr., of New York City, who caused the same to be towed from New York to the entrance of the canal. It carried a cargo of 865 tons of coal, consigned to Boston, Mass., and respondent, the New England Fuel & Transportation Company, had agreed with Hughes to tow the barge through the canal and to Boston, in consideration of the payment of the usual towage rates. The Canal Company was to receive the usual tolls for the passage of the barge through the canal. Between 11 and 11:30 p. m. on that day, when the weather was clear, the steam tug Neptune, owned by the Transportation Company and operated by its employees, had the barge in tow in performance of the towage contract, and started through the canal with the barge and the loaded barge Scully Boys; the latter towing astern of the Kathleen and about six feet therefrom, and the tug having a hawser to the Kathleen. The Kathleen was drawing between 9 and 10 feet. About 12 o'clock the same night, while the tug was proceeding through the canal with her tow, the Kathleen suddenly and without warning brought up against a rock or other obstruction under water, struck the same with great force and violence, and caught thereon. Thereupon the Scully Boys ran up hard against the Kathleen, and the impact, either alone or in conjunction with the hauling of the tug, dislodged the Kathleen, and she proceeded on in the tow of said tug, but immediately began to take in water through the wounds received in the collision. When she reached the further end of the canal the Kathleen sank as a result of said collision. The libelants claimed damages in the sum of $19,658.34.

The libelants alleged that the collision and resulting damages were caused by the negligence of the respondents. The negligence charged against the Canal Company was: (1) That it permitted the canal to remain in a condition unsafe and unfit for the passage of vessels. (2) That it permitted the Kathleen to be towed through the canal when it knew of its unsafe and unfit condition, or should have known it by the exercise of due diligence. (3) That it did not buoy or otherwise mark the rock or obstruction, or give warning of its presence.

That charged against the Transportation Company was: (1) That although its tugs towed numerous vessels through the canal, and it knew, or should have known by the exercise of due diligence, that said dangerous obstruction was in the water way, it piloted and towed the barge in such a manner that it ran against said obstruction. (2) That it took and piloted the barge through the canal under the dangerous conditions then existing.

The answer of the Canal Company denied negligence upon its part, and denied that it permitted its canal to remain in a condition unsafe and unfit for the passage of vessels, and that the canal was in such condition, and that it knew of said alleged unsafe and unfit condition, or should have known of the same by the exercise of due diligence, and that it was negligent in not marking the alleged rock or obstruction in the canal, or in not giving warning of the same.

It alleged that the canal was constructed and maintained without locks, and was open at both ends thereof, so that the tide freely flowed through the canal from and to the waters into which it opened; that at all times mentioned in the libel the canal was in a condition safe and fit for the passage of vessels, and that the channel was more than sufficiently deep to accommodate vessels of the draught of the Kathleen, and that such depth was constantly maintained in the channel; that the channel was free and clear of any and all obstructions dangerous to navigation, and that all sand bars, shoals, rocks, and other obstacles were properly marked and designated, and due warning was given of the same, and that the lines of the channel were duly and properly staked, marked, and designated by poles, spars, and other buoys, and that lights were placed at proper intervals along the channel, so that vessels going through the canal at night by the exercise of reasonable care in navigation could remain in the channel and navigate the same safely; that at the time of the alleged collision and alleged injury to the barge there were no fixed obstructions, shoals, rocks, or other obstacles in the channel which were not properly marked and designated, and which could not be avoided by the exercise of reasonable care by vessels navigating the canal; that the respondent at all times exercised all reasonable means and due care to keep the channel and canal free and clear from any and all temporary obstructions and obstacles, such as floating or partially submerged logs, piles, or wreckage, which might drift into said canal with the tide, or which might otherwise be present in the canal, and which might be dangerous to navigation in said canal.

It further alleged that, if the damage as alleged in the libel occurred to the barge, the same was caused either (a) by reason of the barge striking a fixed rock, obstruction, or shoal outside of the duly designated and marked channel of the canal; or (b) if said damage as alleged in the libel occurred to the barge, the same was caused by the barge striking a temporary floating or partially submerged obstacle floating in said channel, and that the same was one of the ordinary and usual hazards of navigation, such as might have been encountered on the open sea, for which the respondent was in no way liable, having taken all reasonable and necessary means to prevent the existence of such temporary obstacles in the canal, and that the damage occurred without any fault or negligence on the part of the respondent.

The Transportation Company in its answer alleged that, if the barge sustained damages as a result of striking against some object in the canal while in tow of the tug, said damage was not due to any fault or neglect on the part of respondents, their agents, or servants, or of said tug, but was due to contact with some object, the presence of which was not known and should not have been known to it or those in charge of the tug.

Its answer also alleges that it was not a corporation, but, on the contrary, that its business was conducted by certain individuals named in its answer, who were trustees under a written agreement and declaration of trust, dated June 28, 1917, and as such were doing business under the name of New England Fuel & Transportation Company, and that as such they were and are doing business in Boston, in the district of Massachusetts, and that they maintained an office as such trustees in the city of New York.

Thereupon, on January 11, 1921, the trustees having duly appeared in the cause, an order was entered in the District Court which substituted them as respondents in the place and stead of the Transportation Company in all respects as if they had been originally named as respondents, and amending the libel in that respect, and directing that the answers theretofore filed should stand in all respects as if filed as so amended. The proctors for the trustees consented to the entry of the order.

The District Court, after the cause had been submitted upon the pleadings and proof, entered a decree in which it dismissed the libel as to the Transportation Company, and it ordered and adjudged that the libelants recover from the Canal Company the damage sustained, with interest and costs, and a commissioner was directed to ascertain the amount of the damages. Thereafter the proctors for the libelants and those for the Canal Company waived the reference to the commissioner and stipulated the amount of the damages as $23,547.17, and the interest on the various items of damage, which aggregated the further sum of $6,901.50,...