In re Moran

• Decision Date: 10 January 1903
• Citation: 120 F. 556
• Parties: In re MORAN. v. LUCKENBACH et al. ATLANTIC, GULF & PACIFIC CO.
• Court: U.S. District Court — Eastern District of New York

120 F. 556

In re MORAN.

ATLANTIC, GULF & PACIFIC CO. v. LUCKENBACH et al.

United States District Court, E.D. New York.

January 10, 1903

Wing Putnam & Burlingham and Harrington Putnam, for petitioner.

Boardman Platt & Soley and James Russell Seley, for Atlantic, Gulf &amp Pacific Co.

Peter S. Carter, for the Luckenbachs.

THOMAS District Judge.

September 3, 1900, the Atlantic, Gulf & Pacific Company, claimant in the above proceedings for limitation of liability, and libelant in the above action, by Catt, its president, engaged the Messrs. Luckenbach to tow a dredge and scow, by the ocean route, from Wilmington, Del., to the mouth of the Potomac, at the agreed price of $450, with an additional $150 if delivered at Washington. September 10th, Edgar F. Luckenbach advised Catt that the tug Luckenbach, intended for the service, was disabled. Thereupon Luckenbach, in his own name and without disclosing the libelant, engaged the tug Moran of the Moran Towing Company, to tow the dredge to Washington for $600, and he reported accordingly to Catt. Luckenbach claims that he made this contract at Catt's request, while the latter insists that it was done upon the responsibility of Luckenbach, and without notice to him that the tug Moran did not belong to the Luckenbach firm, although he admits notice of the disability of the tug Luckenbach, the request on his part that Luckenbach should find another tug, and that the latter reported the substitution of the Moran. September 11th the tug Moran started for, and September 12th arrived at, Wilmington, where her master, Ellis, discovered that a large scow was to accompany the dredge, and reported the fact to his principal. Catt, Luckenbach, and Moran communicated, and Catt learned that Luckenbach had engaged the tug Moran to tow the dredge only. Moran insisted upon additional compensation for towing the scow without risk, and upon such terms he started the tow. At this time at least Catt knew that Moran had been employed by Luckenbach, but his negotiation for another tug at Baltimore, his conduct of the whole transaction, and the conversations, lead to the conclusion that Catt did not intend to look to Luckenbach as the principal. But the neglect of Luckenbach to advise Moran that the scow was part of the tow induced Moran to send his tug to Wilmington, expecting to tow the dredge alone, and resulted in the latter disclaiming responsibility for the scow.

Had the agreement been that the dredge and scow, one or both, were to be towed without risk on Moran's part, it would not exempt him or his tug from damages for injury caused through his own or his servant's negligence. The Syracuse, 79 U.S. 167, 171, 20 L.Ed. 382; Deems v. Canal Line, 14 Blatchf. 474, 7 Fed.Cas. 348 (No. 3,736); Vanderslice v. The Superior, 26 Fed.Cas. 970 (No. 16,843); Williams v. The Vim, 29 Fed.Cas. 1413 (No. 17,744a); The Jonty Jenks (D.C.) 54 F. 1021, Coxe, J., March 16, 1893. But this rule does not preclude consideration of the fact, as bearing upon the owner's privity or knowledge, that he was induced to agree to the owner's privity or knowledge, that he was induced to agree to equip his tug for one burden, sent the tug to Wilmington for such service, was there without an opportunity to adjust his equipment to the superimposed duty of taking the scow, and was urged to start the tow in haste. Hence, on Thursday, September 13th, the undertaking began with towing lines that, under the conditions of weather at times ensuing, proved inadequate for the two vessels, however adequate they may have been for towing the dredge alone. The dredge was, in draft, shape, weight, and superstructure, difficult of navigation, especially in seriously disturbed waters. Her tendency was to flounder rather than to founder. The picture, which does not show the true height of her smokestack, will aid the description.

For the purposes of the voyage planking had been nailed outside of the house, so as to come within 18 inches of the top, and about one foot from the edge of the lower deck. The dredge was about 116 feet long, with 35 feet beam. Her sides were square, 9 feet deep, bottom flat, and ends nearly upright. At the working end, the part aft in towing, there was an open cut into the structure, called the ladder well, about 18 feet long and 12 feet athwart ships, the framework ladder at the outer, and carried a revolving cutter cage which could be raised or lowered by machinery. The ladder frame filled the well, and was at the outer end supported by wire tackle running over a high framework, by which it could be raised or dropped for dredging. On the tow, the ladder dragged in the water, being about two-thirds submerged. Thus ranged horizontally, the ladder projected about 22 feet from the after ends of the dredge.

(Image Omitted)

The cutter cage itself was laden on the scow. In the after end of the hull, next the ladder well, was the pumproom, about 30 feet long, between two side bulkheads; then forward of a wooden cross-bulkhead was the engine room, in front of which (with no separating bulkhead) was the fireroom. Forward of the pumproom the fore and aft bulkheads were open, with the overhead deck resting on the stanchions only, supported by a keelson about 2 or 3 feet high. The boilers were 16 feet long and 14 feet high, rising 3 or 4 feet above the deck, and each had a furnace. The hull was box-shaped, and about 9 feet high. Then came a deckhouse, or machine house, 10 or 12 feet high, and some 70 feet long. This came within 4 feet of the sides of the hull. On this was a nearly square pilot house aft, and another upper house forward, with two rooms. The smokestack rose 60 feet above the top of the engine house, and was 64 inches in diameter, and was held in place by steel guys leading fore and aft, and by temporary rope supports at the sides. There were three anchors, one weighing 996 pounds, another 500 pounds, and another 550 pounds. She had a wire bridle for towing. The scow, which was used as a tender, was 65 feet long, 26 feet wide, and 5 or 6 feet deep, with a draft 2 feet forward and 3 feet aft. She was decked over, and carried about 30 tons of spare parts of machinery, and a crew of 2 men. She had a house seven feet high and six feet square. She was attached t- the dredge by two lines, each 350 feet long, running from her forward corners. The moran was a steel tug, built in April, 1900, 94 feet 10 inches long, with 19 feet beam and 11 feet depth of hold. She had a steel deckhouse, with a pilot house on the forward end thereof, and carried an eight or nine hundred pound anchor. Her consumption of coal was five tons in 24 hours, steaming steadily at sea. When she arrived at Norfolk, as hereinafter stated, she had 15 or 16 tons of coal in her bunkers.

With this ponderous dredge and clumsy scow, the tug made her way to Delaware Breakwater, where, on account of the weather conditions outside, she stayed until Sunday morning September 16th, when she started down the coast. The weather and sea were favorable, save for a heavy southeasterly swell, which moderated so that the tow went well, until about 10 o'clock on Sunday evening, when, in a heavier undertow, the hawser, which ran from the stern of the tug to the steel bridle of the dredge, broke, causing an hour's delay. The hawser, which was 200 fathoms in length and about 8 inches in size, was new in the previous May, and had received such use that the tug's captain requested and received a new 7 or 7 1/2 inch hawser in July, which had been used sparingly. After the parting of the hawser a line was made fast to the dredge, whereby she was held in position until the bridle of the dredge was drawn aboard by hand, whereupon the tug bent on both hawsers, thereby extending the scope of the line, for the purpose of easier towing, which readjustment gave some of the crew of the dredge the erroneous notion of a second parting of the line at that time. There was no further interruption until the next afternoon. At this time the wind was light, but there was a heavy southeasterly swell, with undertow, and when about a mile inside the Cape Charles Lightship, at 4 p.m., on Monday, September 17th, the hawser parted again in the older part thereof. After a delay of an hour the line composed of the two hawsers, except as wasted by former partings, was readjusted, and the tow proceeded. On account of the approaching night, the course into Chesapeake Bay nearer to Cape Charles was deemed inadvisable, and the channel nearer to Cape Henry, although some five miles longer, was attempted, the weather at the time being propitious. But the swell ahead grew more violent, the wind increased until it reached 26 miles from 6 to 9 o'clock, 35 miles between 10 and 11 o'clock, and continued at about that velocity while the tug remained with her tow. The tide was strong ebb, with low water at Cape Henry at 9:46 p.m., and at Cape Charles at 10:28 p.m. Between 10 and 11 o'clock the smokestack of the dredge fell, and was securely lashed, although the fall injured the pilot house roof and crushed one of the small boats. No vital damage was done. However, the repeated breaking of the hawser permitted the dredge to roll heavily in the sea, and enabled the scow to come against her in a manner calculated more to excite alarm of the crew than to produce essential damage to the scow or dredge. Sometime before 11 o'clock the hawser again parted, this time in the newer part thereof. Thereupon the two men on the scow signaled, and were taken upon the tug. The tug then went alongside of the dredge, and received from her an 80 fathom 6-inch line-- upon the offer of the dredge, as the tug claims; upon the request of the tug's captain, as some of the crew of the dredge state. If the use of this line imputes fault to...