THE SNUG HARBOR

• Decision Date: 25 August 1931
• Docket Number: No. 12108.,12108.
• Parties: THE SNUG HARBOR.
• Court: U.S. District Court — Eastern District of New York

53 F.2d 407 (1931)

THE SNUG HARBOR.

No. 12108.

District Court, E. D. New York.

August 25, 1931.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Charles E. Wythe, Sp. Asst. to U. S. Atty., of New York City, and Frederick R. Conway, of Washington, D. C., of counsel), for the United States.

Baird, White & Lanning, of Norfolk, Va., and Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Charles R. Hickox and Clement C. Rinehart, both of New York City, and Edward R. Baird, Jr., and George M. Lanning, both of Norfolk, Va., of counsel), for claimants.

CAMPBELL, District Judge.

This is a petition filed on behalf of the United States of America, as owner of the steamship Snug Harbor, to limit its liability for the loss of the barges Winstead and Vermillion, and their cargoes.

The facts are as follows:

The steamship Snug Harbor, owned and used by the United States solely as a merchant vessel, while on a voyage from Baltimore, Md., to Portland, Me., came into collision on August 15, 1920, at 9:30 o'clock p. m., with the barge Pottsville in tow of the Covington, and sank at a point about four and a half miles east by north of Montauk Point Light, and became a total loss.

At 5:30 o'clock p. m., on the 14th day of September following, the barges Vermillion and Winstead, loaded with coal and in tow of the tug Barrelton, on a voyage from Norfolk, Va., to Fall River, Mass., without fault of those in charge of the tug or tow, came into contact with the wreck of the steamship Snug Harbor, and as a result were sunk, and with their cargoes became a total loss.

The United States of America, its agents, servants and employees, did not mark by buoy or light the wreck.

There was no affirmative act of abandonment on the part of the United States of America.

The collision of the Snug Harbor with the barge Pottsville occurred in a fog.

The crew of the Snug Harbor was saved, and the master thereafter made his report, in which he stated that the collision occurred one-half mile west, three-quarters south, from Montauk Point gas buoy.

This point is in the ocean at the entrance to Block Island Sound. The point where the Vermillion and the Winstead came into contact with the wreck of the Snug Harbor was in Block Island Sound.

The Snug Harbor was an iron vessel fully loaded with coal, and the master erred in fixing the place of sinking, as he did, six miles from the place where it occurred. The Snug Harbor, in sinking, went over on her side, and left nothing above water to mark the spot. Neither her masts, her funnel, nor any part of her superstructure was visible above the surface.

The wreck of the Snug Harbor lay on the bottom of Block Island Sound, in approximately forty feet of water, about four miles to the eastward of Montauk Point Light, and nine miles westward from the southern-most part of Block Island.

Block Island Sound is a wide roadstead, navigable for nearly its entire distance from shore to shore, for vessels of the largest size, a frequented channelway for north and south bound coastwise vessels going to and returning from Rhode Island and Massachusetts ports, which steer a course to take them over or close to the point of the wreck.

From the time of the sinking of the Snug Harbor on August 15th to the time of the sinking of the Vermillion and the Winstead on September 14th, no effort was made by the United States of America either to mark or reclaim the wreck, other than by the lighthouse tender Tulip.

Upon receipt on August 24, 1920, by the Shipping Board from the operators of the ship, the Coastwise Transportation Company of Boston, of the report of the master of the Snug Harbor of her sinking, inquiry was made from time to time of lobster fishermen habitually using Block Island Sound in an effort to ascertain if any one had information of the location of the wreck.

On August 19th the Lighthouse Service of the Department of Commerce undertook the duty of searching for, finding, and marking the wreck, and inquired of the Shipping Board as to the location of the wreck.

No vessel was assigned exclusively to the duty of searching for the wreck and buoying it, if found, but on August 28th an order was issued to the lighthouse tender Tulip, directing her to search for the wreck while on a regular trip or other business, and buoy it, if found.

On September 1st and 2d the Tulip, while on a voyage between New England ports, cruised the waters in and around Montauk Point for seven hours, in an effort to find the wreck, and did not succeed. The officers charged with the duty of searching had nothing more than general information of the sinking to guide them in finding the obstruction.

They had not communicated with the officers of the Snug Harbor, or with the officers of the barge with which she collided, and there is no evidence to show that the latter had communicated with them.

No effective effort was made by the Lighthouse Service to obtain specific and definite information from any source. Two other vessels were in collision with the wreck, one on the 23d day of August, and another on the 25th day of August, and reports were made at least four days prior to the sinking of the Vermillion and Winstead to the local inspectors and to the Lighthouse Service of these collisions, but no report was made to the Shipping Board thereof. These reports showed as to the barge Stetson that the obstruction was encountered "off Montauk Point," and as to the barge Fall River that the obstruction was encountered six miles east one-fourth south from Montauk Point Lighthouse, and these reports were the only information which came to the petitioner's officers, agents, servants, or employees respecting the location or position of the wreck, other than that given in the report of Capt. Swenson, the master of the Snug Harbor at the time she sank.

After these reports were received, no effort was made to locate the obstruction reported, other than by the Tulip, until the Vermillion and Winstead struck the wreck.

The wreck of the Snug Harbor was at the time of the filing of the petition for limitation of liability herein lying at the place hereinbefore found, within this district and within the jurisdiction of this court.

The facts as found show that the Snug Harbor was sunk in Block Island Sound, and that the barges Vermillion and Winstead came into collision with the wreck of the Snug Harbor and sank with their cargoes.

On the 27th day of May, 1929, the District Court for the Eastern District of Virginia, after trial of the issues, made a final decree against the United States of America, in the consolidated case, on the libels filed by the owners of the barges Winstead and Vermillion, and the owners of their cargoes. From these decrees the United States of America appealed to the Circuit Court of Appeals for the Fourth Circuit, which affirmed the decrees. The Snug Harbor, 40 F.(2d) 27.

These decrees imposed liability because of petitioner's falure to perform a personal, nondelegatable duty, that of buoying the wreck as required by statute.

The instant petition, which was filed on October 29, 1930, seeks a limitation of liability, so established.

The claimants appeared specially, and filed exceptions to jurisdiction, which were overruled by this court (Judge Galston presiding) on December 23, 1930. 46 F.(2d) 143.

The claimants answered, and exceptions to articles 12 and 14 of the answer were filed by the petitioner, on the ground that the issues presented had already been determined by Judge Galston, and that his decision became the law of the case in this court. These exceptions were not brought on for hearing, but were left for disposition on the trial, which was held on June 3, 1931.

In the twelfth article of the answer it is alleged that the Virginia litigation established the personal fault of the petitioner in failing to mark the wreck, as required by the Wreck Statute (33 USCA § 409), and that liability arising from such fault does not come within the scope of the limitation of Liability Act.

In the fourteenth article it is alleged that the Virginia litigation established that the loss of claimants' barges and cargoes occurred with the privity and knowledge of the petitioner.

The complete record of the Virginia litigation was not before Judge Galston when he heard the exceptions of the claimants to jurisdiction, his decision was thereon, and not a decision on the exceptions to articles 12 and 14 of the answer.

All that was before him with reference to that litigation was an allegation that the petitioner had been sued in Virginia under the Suits in Admiralty Act (46 USCA §§ 741-752), and had been adjudged liable to pay certain libelants for damages for the loss of the barges Winstead and Vermillion, and their cargoes.

No facts and circumstances were alleged with respect to the Virginia proceedings to enable the court to determine what the nature of the liability was that had been adjudged against the petitioner in Virginia.

The full record of the Virginia litigation is now before this court, and a different situation is presented there than on the hearing of the exceptions, and I cannot hold that with reference to such exceptions this court, in passing on the exceptions to the answer, is bound by that decision. Post v. Pearson, 108 U. S. 418, 2 S. Ct. 799, 27 L. Ed. 774; Roberts & Co. v. Buckley, 145 N. Y. 215, 39 N. E. 966; The Tenbergen (D. C.) 48 F.(2d) 363.

As the exceptions in question go to the root of the case, they will be generally considered in this opinion on the whole evidence offered on the hearing of this petition.

In view of the decision on the exceptions to the jurisdiction, the question now before this court is narrowed down to the single issue, whether, upon the facts found, the neglect and failure of the petitioner to mark and buoy the wreck of the Snug Harbor, upon which liability was predicated, occurred without the privity or knowledge of the petitioner, within the...