Harrison v. Hughes

• Citation: 125 F. 860
• Decision Date: 01 September 1903
• Docket Number: 38.
• Parties: HARRISON v. HUGHES et al.
• Court: U.S. Court of Appeals — Third Circuit

125 F. 860

HARRISON v. HUGHES et al.

No. 38.

United States Court of Appeals, Third Circuit.

September 1, 1903

John F Lewis and Francis C. Alder, for appellant.

H. G Ward, for appellees.

Appeal from the District Court of the United States for the District of Delaware.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

A careful review of the testimony, as disclosed in the record in this case, convinces us that the decree of the court below should be affirmed. The opinion of the learned judge of that court so entirely, and satisfactorily to us, covers all the points in controversy, that we adopt the same as the opinion of this court. It is as follows:

'The libel in this case is in personam and was filed by Albert Harrison, master of the British steamship Glenochil against Eugene Hughes, James Hughes, Charles Hughes and Ansom Bangs, trading as Hughes Bros. & Bangs, to recover damages for injuries sustained by that vessel through running upon the new breakwater off Lewes, near the mouth of Delaware By, about 1 o'clock in the morning of November 30, 1897. At the time of the accident the new breakwater, extension to the breakwater, or harbor of refuge, as it is indifferently termed, was in course of construction by the defendants, under a contract between Major C. W. Raymond of the corps of engineers of the United States Army, acting for and in behalf of the United States, as part of the first part, and the defendants as parties of the second part. The contract was in writing, bore date February 5, 1897, was approved by the chief of engineers February 20, 1897, and provided among other things as follows:

''The said Hughes Brothers and Bangs shall furnish the necessary plant and material and do all the work required for the construction of a stone breakwater in Delaware Bay, Delaware, in strict accordance with, and subject to all the conditions and requirements of the specifications hereunto and attached and forming a part of this agreement.'

'Among the conditions and specifications are the following:

"(3) Maps of the localities may be seen at this office. Bidders, or their authorized agents, are expected to visit the place and to make their own estimates of the facilities and difficulties attending the execution of the work, including the uncertainty of weather and all other contingencies.'

"(42) Description of the Locality. The site of the proposed breakwater is about 2 1/4 miles north of the Delaware Breakwater Harbor, about 3 miles from the Government Pier at Lewes, Delaware, and about 10 miles from Cape May. * * * '

"(56) * * * The work shall be conducted in strict accordance with instructions given from time to time by the engineer officer in charge. * * * All operations connected with the work will be under the immediate supervision of assistant engineers, inspectors or other agents of the engineer officer in charge, and their instructions shall be strictly observed by the contractor and his employees.'

"(59) The work will be commenced by the construction of the substructure at the upper or northwest end of the breakwater, where the mound will be raised to the level of mean low water as rapidly as possible, and over a length at mean low water at least 100 feet. Upon this mound a stake light will be erected, which must be thoroughly protected from ice and storms by depositing very large stones around it. This light will be erected and protected in accordance with the instructions of the engineer officer in charge, or his agent, and it will be maintained by the contractor as long as required by the engineer officer in charge.'

"(62) Plant. The plant shall be adapted to the work and shall be kept in good condition at all times.'

"(65) Lights. During the progress of the work, the contractor must keep suitable lights, every night from sunset to sunrise, upon all his vessels at or in the vicinity of the work. He must also maintain on the work such lights as the engineer officer in charge may direct. These lights will be maintained at the expense of the contractor. The United States will not be responsible for any accident that may occur to the contractor's plant, to passing vessels, or to any property whatever during the progress of the work.'

"(70) Bidders shall further state, on the form hereto appended, and in accordance with the directions thereon, whether they are now or ever have been engaged on any contract or other work similar to that which is proposed, giving the nature and location of the work, the year or years in which it was done, the manner of its execution, and such other information as will tend to show their ability to vigorously and successfully prosecute the work required by these specifications. Any bid not complying with these instructions will be rejected.'

'The defendants in their proposal for the work, dated November 24, 1896, among other things said:

''We are now engaged in constructing a stone breakwater at Point Judith, R.I., and a stone breakwater, also at entrance at harbor at New Haven, Conn. Both for the U.S. Government. * * * We make this proposal with a full knowledge of the work. * * * '

'On or about May 3, 1897, work was commenced on the new breakwater and about the same time a stake light was placed on a mound or stone pile constituting its northwesterly end. On the night of the accident the breakwater had been partially constructed for a distance of about 1;925 feet at low water extending from the end provided with the stake light southeastwardly; no other light having been provided for the work prior to that time. The libel, among other things, contains the following averment:

''That the stranding of the said steamship upon the new breakwater as aforesaid was caused by the carelessness, negligence and recklessness of the said respondents, in that the said new breakwater so under construction by said respondents, as contractors as aforesaid was at and before the time of the said stranding of said steamship, entirely without lights to mark its position and was, at its then stage of construction, thereby rendered a dangerous obstruction to navigation, which said absence of lights and dangerous obstructions were at the time known, or with proper diligence ought to have been known to the said respondents.'

'It is admitted that at the time of the accident the stake light was not burning. The fact that it was not then burning undoubtedly caused or contributed to the disaster. There is, indeed, a conflict of evidence on the question whether the lantern was at that time attached to the stake or mounted on any portion of the breakwater. On careful examination of the evidence I am satisfied that it was at the time attached to the stake, properly trimmed and furnished with oil, but that the light had been extinguished, probably by the strong wind then prevailing from the northwest in connection with the defective and negligent manner in which the lantern was mounted on the stake. It was a Funck lantern, with a red lens from six to eight inches in diameter, calculated to burn, without refilling, from eight to ten days, hung in the open air, by means of a ring at its top to a bracket or cross-piece at or near the top of the post or stake at the height of about twenty-five feet above high water. The lantern was furnished to the defendants for use on the stake directly or indirectly by the engineer in charge. When the lantern was suspended from the

bracket or cross-piece its bottom did not rest on any platform, nor was it otherwise prevented from swinging in the wind. When so swinging the lantern was liable to present itself to the wind at such an angle as to allow the wind, through deflection from its dome-shaped top, to blow down against and extinguish the flame. It appears from the evidence that prior to the disaster the lantern was on a number of occasions extinguished, while it should have been burning. The witness Hasskarl who was government inspector in charge of the work on the new breakwater, testified as follows: 'X 87. About how many times did you notice the light on the upper end of the new breakwater out before the Glenochil went ashore? A. I found it out, and noticed it out, but I cannot tell you how often. I do not know that I kept any track of it. * * * X 93. Do you know what the difficulty was with that old lantern? A. Difficulty? X 94. Yes. Didn't it smoke and show very dimly, and sometimes go out? A. Yes, it did all that, I think.' Hasskarl, in an official communication to the engineer in charge, dated October 17, 1898, says of the stake light in question or a lantern similar to it in position, size, construction and adjustment: 'The light at the upper end of the work frequently goes out, or is blown out during storms, and therefore cannot be considered a reliable light.' The insufficiency of the stake light as originally adjusted was, after the accident, recognized by the government, and steps were taken to remedy the evil. The chairman of the lighthouse board in an official communication to the chief of engineers, dated December 6, 1898, says in part: 'The board then reached the conclusion, after careful examination, that the temporary lights on the extension to the breakwater should be standard lens lanterns of the lighthouse board known as 'Funck Tubular Lanterns' with pressed glass lens, red in color, and that they should be set upon rigid platforms on posts which should be strongly braced laterally at the present height of 25 feet.' The engineer in charge December 19, 1898, indorsed the communication as follows: 'The temporary lanterns now and heretofore shown on the extension to the breakwater are standard lens lanterns of the lighthouse board, known as the 'Funck Tubular Lanterns' with pressed glass...