The W.H. Baldwin

• Decision Date: 09 February 1921
• Docket Number: 146.
• Citation: 271 F. 411
• Parties: THE W. H. BALDWIN. v. CORNELL STEAMBOAT CO. KENNY
• Court: U.S. Court of Appeals — Second Circuit

271 F. 411

THE W. H. BALDWIN.

KENNY v. CORNELL STEAMBOAT CO.

No. 146.

United States Court of Appeals, Second Circuit.

February 9, 1921

Kirlin Woolsey, Campbell, Hickox & Keating, of New York City (L. De Grove Potter and Theodore M. Hequembourg, both of New York City, of counsel), for appellant.

Macklin Brown, Purdy & Van Wyck, of New York City (Pierre M. Brown of New York City, of counsel), for appellee.

Before WARD, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The W H. Baldwin, a steam tug, was employed to tow the barge Kenny Girls, with a cargo of sand, to the Burden Iron Company dock at Troy, N.Y. The barge was about 15 years old, with square ends, 109 feet long, and 28 feet broad, and 14 feet deep. She was loaded with 500 tons of sand and was made up in a tow in New York. At about 10 a.m. on July 26, 1917, she reached a point about 500 feet below the Burden Company's dock, and then the steam tug W. H. Baldwin took her out of the tow, making the barge fast with three lines on the tug's starboard side. This was an hour before high water. She was taken over the flats, and, after proceeding some distance, the bow of the barge grounded on the bottom, and the tug then cast off her lines and pushed her stern in toward the dock. The bargemaster threw two lines to the dock and made them fast to the barge, one at the bow and one at the stern. While the tug stood by, the bargemaster made soundings around the barge with a pike pole, and all present, with the exception of the barge master, say that the barge master announced that 'he was all right.' By proper inspection with this pole, he should have learned the true condition of the bottom. It was uneven, and slanting toward the channel. Thereafter the tide fell, and the barge twisted and broke one knee and strained another knee. Later, and on the next high tide, by means of a line, she was brought up alongside the dock, where she lay aground on a bottom at a point which was slanting from the bulkhead to the channel. The tug is charged with fault in docking the Kenny Girls in an improper manner and in leaving her in a dangerous and unsafe position.

The decisions of this court have heretofore, in numerous cases, announced the obligations of a tug performing services such as the Baldwin was at the time in question. The tug is not an insurer of the tow, and the contract of towage requires one undertaking it to exercise that degree of caution, skill, and prudence which prudent navigators exercise in performing similar services. The burden is upon the barge, which alleged a breach of such duty, to show that there has been negligence and unskillfulness in performing the contract undertaken, to its injury. The Clarence L. Blakeslee, 243 F. 365, 156 C.C.A. 145; The Winnie, 149 F. 725, 79 C.C.A. 431; C. R. Sheffer, 249 F. 600, 161 C.C.A. 526.

A tug, in her home waters, is chargeable with knowledge of the ordinary currents and tides, channels, depth of water, and well-known obstructions. The Marie Palmer (D.C.) 191 F. 79; The Reichert (D.C.) 258 F. 79. The one fact of injury to the tow raises no presumption of fault. The Margaret, 94 U.S. 494, 24 L.Ed. 146; The Battler, 72 F. 537, 19 C.C.A. 6. A mere mistake in judgment in respect to the tides or currents, channels, depth of water, or obstructions is not sufficient to charge the tug with negligence, for the error must be one that a prudent navigator, sailing under similar circumstances and conditions, would not have made. The Marie Palmer (D.C.) 191 F. 79; Gilchrist Transp. Co. v. Great Lakes Towing Co. (D.C.) 237 F. 432. The tug is bound to act and avoid, so far as reasonable care and skill can do it, dangerous points in navigation upon the voyage undertaken, which are known or should have been known to a master in charge of the tug. To do more would be to hold her to that degree of care which would make the tug responsible as an insurer. Navigators are not to be charged with negligence unless they make a decision which nautical experience and good seamanship would condemn as unjustifiable at the time and under the circumstances shown. The Clarence Blakeslee, 243 F. 365, 156 C.C.A. 145.

Guided by these rules of law, and examining the testimony in this record, we believe the appellee has failed to support the burden which the law casts upon it in order to support the decree below. There is no proof that there was a rock or obstruction, well known to river navigators or to those in charge of the tug, upon which the barge rested and suffered damage. The bargemaster stated that, when the tug got about 50 feet below the derrick, the barge was moved in toward the derrick until within 40 feet of the dock, when the barge's bow struck a lump, and the stern swung or pushed in as far as it would go. He says he then got two lines on the dock, when the tide fell, and the barge got aground on the slanting bottom, and began to twist and strain, resulting in the breaking of one knee and cracking another.

The libelant's witness, Downs, testified that he made soundings within a space of 400 feet up and down the river and 50 feet out from the dock; that within this space the depth of water ran a minimum of 5 feet 9 or 10 inches, but the shallow place was 40 or 50 feet out from the dock and below the crane. He said: 'Outside it was gradually sloping as far as you could tell by sticking the pole down. ' He found no holes, and it indicated the same general depth of water. Those in charge of the tug testified that they took the barge on the starboard side, and proceeded a trifle above the derrick, and pushed the barge in toward the dock, until the bow was grounded where she lay and was apparently in a safe position; that the bow was 8 or 10 feet from the dock and the stern a little further up.

The tugmaster pushed the Kenny Girls into this dock many times...