Thompson Towing & Wrecking Ass'n v. McGregor

• Decision Date: 04 August 1913
• Docket Number: 2,262.
• Citation: 207 F. 209
• Parties: THOMPSON TOWING & WRECKING ASS'N et al. v. McGREGOR et al.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 209

THOMPSON TOWING & WRECKING ASS'N et al. v. McGREGOR et al.

No. 2,262.

United States Court of Appeals, Sixth Circuit.

August 4, 1913

Keena Lightner, Oxtoby & Oxtoby, of Detroit, Mich. (Hermon A Kelley, of Cleveland, Ohio, of counsel), for appellants.

John W Shine and E. S. B. Sutton, both of Sault Ste. Marie, Mich for appellees.

Before WARRINGTON and KNAPPEN, Circuit Judges, and SATER, District judge.

WARRINGTON Circuit Judge (after stating the facts as above).

The claims of both appellees have been presented and considered together.

1. It is objected that the appellants are not shown to have been guilty of negligence, which was the proximate cause of the explosion. The effort is to show that all who were at the time engaged on the Stewart, including the captain, were members of the crew, and so to excuse the owners under the fellow-servant doctrine. This fails to give due effect to the condition of both the boiler and the hull of the Stewart. The boiler was formerly in use on the Crusader. In 1896 the Crusader burned to the water's edge and the remnants of its hull, including the boiler, sank. Some four years later the boiler was raised and placed in the Stewart. Besides the proved impairment of the boiler by reason of the fire and the time it was under water, it was suffered to fall into serious disrepair while on the Stewart. The year before the explosion, the safety valve of the boiler had been taken off and the opening plugged. The steam gauge was so broken and otherwise out of order that the steam pressure could not be ascertained, even approximately, except by tapping and manipulating the gauge; and the water gauge would not disclose the stage of water in the boiler. Thus the appliances for avoiding excessive pressures of steam or stages of water below the normal were grossly defective; and, as to substituting 'plugging' for a safety valve, we agree with Judge Denison, who in deciding the case below said:

'The absence of the safety valve might well be presumed the cause of the explosion and, for the purposes of this case, I think that fact should be considered as established.'

These matters were common knowledge among those who had to do with the boiler. Moreover, the boat itself was old; it had been a schooner and converted into a lighter; it carried two boilers, one for operating its derrick and the other (the one that exploded) for pumping water. The Stewart had not been 'fitted out' in the year of the explosion; it leaked badly when heavily loaded, as it appears to have been at the time; indeed, the boiler that exploded was then in use to pump out her hull.

These details are sufficient, without more, to warrant turning to the inquiry whether the owners of the Stewart were chargeable with knowledge of such conditions as these. Capt. Thompson was the local manager of the owners in Sault Ste. Marie, Mich., and, although his 'orders came from officials at Cleveland,' he testified that he had 'general charge of the sending of the expedition to the Elwood,' and further that he ordered 'the outfit down there to do the work that was required to get that vessel afloat. ' There was evidence tending to show that he had knowledge of these conditions. True, he disclaimed such knowledge, but their proved existence made denial vain; they had been allowed to remain too long, almost a year; and we think it is not too much to say that the owners were chargeable with knowledge of them and of the danger their existence meant to the crew when the vessel was hired and started on its mission to lighter the Elwood.

It is the duty of a shipowner, for the purposes either of a voyage or of an undertaking like this, to furnish a vessel, with the usual and necessary appliances, in such condition and repair as reasonably to attain the objects intended; in a word, the vessel as an entirety must be seaworthy; and the owner's duty in this behalf is positive and nonassignable. La Fernier v. Soo River Wrecking Co., 129 Mich. 596, 89 N.W. 353; The Drumelton (D.C.) 158 F. 455, 456; Hughes on Admiralty, 184, and citations announcing the rule, although the facts of the particular cases did not warrant its application. See, also, Cornell Steamboat Co. v. Fallon, 179 F. 293, 294, 295, 102 C.C.A. 345 (C.C.A. 2d Cir.); The Lowlands (D.C.) 142 F. 888; Lafourche Packet Co. v. Henderson, 94 F. 872, 873, 36 C.C.A. 519 (C.C.A. 5th Cir.) . In short, we must regard the applicable rule of liability as settled by The Osceola, 189 U.S. 158, pages 173, 174, 23 S.Ct. 483, 47 L.Ed. 760, where Mr. Justice Brown in the course of the opinion pointed out the distinction between the duty of the shipowner as to seaworthiness and fitness of appliances and his duty concerning matters of navigation and the like, and then in summing up in four propositions, said in the second (189 U.S. 175, 23 S.Ct. 487, 47 L.Ed 760):

'That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.'

This rule does not differ in principle from the rule which holds a master liable in damages for neglect of his positive duty to his injured servant, no matter whether such injury is due in part to neglect of fellow servants or not. Kreigh v. Westinghouse & Co., 214 U.S. 249, 257, 29 Sup.Ct. 619, 53 L.Ed. 984.

2. Objection was next made to the action of the court below in requiring a stipulation to include the tug Merrick; the insistence being that the appellants' liability is limited to the Stewart. The appraised value of the Stewart was $1,400; and the value of the Merrick, as ultimately reduced, was $10,000. Objection is also made to the valuation placed upon the Merrick; but in view of the evidence, which need not be recited, we are not disposed to interfere with the value fixed below. The argument that the stipulation regarding the Merrick should not have been exacted is that the Merrick was not concerned in the accident. The Stewart was not equipped with motive power and in her movements was wholly dependent upon that of some other vessel. Capt. Thompson sent to the relief of the Elwood the tug Merrick and the lighter Stewart; the former towing the latter to the Elwood. It is true that he sent other boats to engage in the same operation, but the effort to force either the surrender of those boats or the giving of a stipulation covering their value failed. The situation of the Merrick and Stewart before and at the time of the explosion and the conditions in effect converting those boats into a unitary instrumentality while working to release the Elwood were aptly described and, as we conceive, the applicable law forcefully stated by Judge Denison. He said:

'I think, however, that the Merrick and the Stewart, under these circumstances, belong together. The Merrick was the motive power of the combination, without which the lighter could not move. They were, at the moment, physically connected, through the Elwood. The Merrick could not move the Elwood until part of her cargo was taken out, and the most effective way was to keep on removing cargo to the Merrick's attendant barge while the Merrick kept on pulling. Both boats were jointly engaged in floating the Elwood, the Stewart in one way and the Merrick in another; and the work which the Stewart was doing was a necessary element in the work which the Merrick was doing. The fact the Stewart had, for a short time, discontinued removing cargo while the Merrick was pulling cannot be controlling. Whether or not the master of the Elwood had general control, the Stewart was, as between the Merrick and the Stewart, under the direction of the Merrick's captain. The Merrick had placed the Stewart and would soon take her away, unless the Thompson Company substituted some other tug for that duty. Under such circumstances, the two boats together constituted the unit that must be surrendered in order to justify a limitation of liability. The Northern Belle, 9 Wall. 526, 19 L.Ed. 746; The Arturo (D.C.) 6 F. 308, Lowell, C.J.; The Alabama (C.C.) 22 F. 449, Pardee, C.J.; The Bordentown (D.C.) 40 F. 686, Brown, D.J.; The Columbia, 73 Fed.at page 237, 19 C.C.A. 436 (C.C.A. 9). Even if the more limited rule of The Mason, 142 F. 913, 74 C.C.A. 83 (C.C.A. 2), reversing (D.C.) 131 F. 632, was to prevail in this court, still I think that the character of the Stewart's work as incidental to the main service being performed by the Merrick, and the fact that the good condition of this boiler was indirectly necessary in order that the Elwood might yield to the Merrick's pull, distinguish the present case. See, also, The Anthracite (D.C.) 162 F. 384, Adams, D.J.'

And on rehearing the court further said:

'There has been exhaustive argument upon the meritorious question whether the tug Merrick should have been included in the surrender, or her value in the stipulation. I cannot doubt that the question of the liability of the Merrick is a close one, but I find no controlling authority which prevents what seems to me the very proper course of holding her liable in this case. Unquestionably both the Merrick and the lighter were engaged in a common enterprise; they were physically connected, although, instead of being lashed rail to rail the Elwood and a tow line intervened; the then existing act of the Stewart in lightering the Elwood was an act in aid of and in co-operation with the then existing pull of the Merrick on the tow line; and the act of the Merrick in so pulling was in co-operation with and in aid of the lightering being conducted by the Stewart. In addition, I think the fair assumption is that the captain of the Merrick was...