McWilliams Bros., Inc. v. Director General of Railroads, 156
| Decision Date | 02 March 1921 |
| Docket Number | 157.,156 |
| Citation | 271 F. 931 |
| Parties | McWILLIAMS BROS., Inc., v. DIRECTOR GENERAL OF RAILROADS (two cases). |
| Court | U.S. Court of Appeals — Second Circuit |
Burlingham Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Charles E. Wythe, both of New York City, of counsel), for appellant.
Herbert Green, of New York City, for appellee.
Before WARD, ROGERS, and MANTON, Circuit Judges.
Testimony on these two cases was taken on the same day in the court below. By stipulation of counsel it was agreed that the testimony taken in each might be used in the other. The trial disposed of both cases in a single opinion; the vital point in each case being the same. The cases were heard in this court together, and they will be determined here in one opinion.
The libel in the first case was against the Pennsylvania Railroad Company and against all persons lawfully intervening for their interests therein. In the second case it was filed against the steam tug P.R.R. 35, her boilers and engines, and against all persons lawfully intervening for their interests therein. And on the same day that the libels were filed the court entered an order in each case, on motion of the proctors for the respondent and for the Director General of Railroads, and with the consent of the proctor of the libelant, that the Director General of Railroads (operating Pennsylvania Railroad) be substituted as respondent in the place and stead of the Pennsylvania Railroad, with the same force and effect as if the suit had originally been brought against him.
The Pennsylvania Railroad Company filed a petition under the fifty-ninth rule in admiralty (29 S.Ct. xlvii) in each case to implead M. J. Mulqueen and William Molyneaux, owners respectively, of the wrecks of the coal boats M. J. Mulqueen and George W. Chambers, with which the Red Rose collided. Repeated efforts to obtain service upon Mulqueen and Molyneaux were fruitless, and process was returned as not found. A decree was entered in favor of the libelant in both cases. In the first case it was entered in the sum of $2,066.03. In the second, the sum was $302.28.
In both cases the injury complained of was to the barge Red Rose. In the first case the injury was done on January 22, 1918. In the second case it occurred on March 11, 1918. In both cases the barge was in a tow which the respondent's tugs were hauling through the channel leading from South Amboy, N.J. The claim is that the barge was carelessly and negligently dragged over two wrecked and sunken boats lying in the channel, and which the respondent knew were there, and knew that they were a danger and menace to any tows hauled through those waters. The sunken boats were the Mulqueen and Chambers, already referred to.
The dredged channel in which the wrecks lay is 300 feet wide, and the wrecks, the District Judge found, were on the upper side of it, and could not have diminished the width of the channel by more than 40 feet at the most. The wrecks had been in that position since January 12, 1918, which was ten days before the first injuries complained of happened, and two months before the second injuries. And the District Judge has also found that their presence there was known to the Pennsylvania Railroad tugmasters. That they had this knowledge is beyond question. The day after the Mulqueen and Chambers were sunk the evidence shows that the Pennsylvania Railroad Company had actually marked the spot with a spar buoy, but that it had been carried away. At the time the injuries occurred the wrecks were unmarked.
The sole question is whether the tugs were navigated with that degree of care which the known conditions imposed upon them. It is elementary that in every contract of towage it is impliedly agreed that the tug will use proper skill and diligence, and that she will not unnecessarily by negligence or...
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In re Pennsylvania R. Co.
...any defence to the petition. As to the barges themselves there was, however, such a duty. The road was a bailee. McWilliams Bros. v. Director General, 271 F. 931 (C. C. A. 2); Doherty v. Pa. R. Co., 269 F. 959 (C. C. A. 2); The Wyomissing, 45 F.(2d) 160 (C. C. A. 2); Stevens v. The White Ci......
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