Waldie v. Steers Sand & Gravel Corporation

• Decision Date: 13 July 1945
• Docket Number: No. 327.,327.
• Citation: 151 F.2d 129
• Parties: WALDIE v. STEERS SAND & GRAVEL CORPORATION et al.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 129 (1945)

WALDIE v. STEERS SAND & GRAVEL CORPORATION et al.

No. 327.

Circuit Court of Appeals, Second Circuit.

June 8, 1945.

On Rehearing July 13, 1945.

Stanley R. Wright, of New York City, for Red Star Towing & Transportation Co.

Edmund F. Lamb, of New York City, for Steers Sand & Gravel Co.

Joseph F. Murray, of New York City, for Standard Surety & Casualty Co.

Leo F. Hanan, of New York City, for Susanna E. Waldie.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The Red Star Towing and Transportation Company and the Steers Sand and Gravel Corporation appeal from a decree in the admiralty, which held the Red Star Company primarily, and the Steers Company secondarily, liable for damage to the libellant's barge, caused by resting upon the uneven bottom of a berth alongside a wharf at Fort Slocum. The libellant sued the Steers Company as charterer of the barge; and the Steers Company impleaded the tug, which delivered the barge at the wharf, the consignee^* of the barge's cargo, which directed delivery at the wharf, and th which directed delivery at the wharf, and the surety of the consignee — the last on the theory that the surety had taken over the consignee's contract with the War Department. The facts as found were as follows. The libellant chartered the barge to the Steers Company, and the charterer loaded her on May 15th at North Port, and left her at its stakeboat off Whitestone on the 17th. It then arranged with the Red Star Towing and Transportation Company to tow her to the wharf at Fort Slocum; and that company sent its tug, "Portchester," to do the job. The tug took her in tow, and on the night of the 17th left her on the north side of the wharf in question, bows in, abreast of a coal derrick. Before doing so, the tug captain inquired of a military policeman, on duty at the wharf, whether the barge was "all right here," and was assured that she was. The captain then told the bargee to make fast, so that the barge would drift off some four or five feet from the side of the wharf at low water, and left after the bargee had done so. On the fall of the tide the barge's bows took the ground upon a shoal and she suffered the damage for which the suit was brought. The tug captain testified that for twenty years he had been placing coal boats and "trap rock scows" at this pier in the same place; that they had never been damaged, and that he had never heard of any damage; and in this he was confirmed by an apparently disinterested witness. The judge held the tug at fault because the captain had relied upon his own knowledge of the waters, and had not sounded before mooring the barge; and that the presence of the derrick, abreast of where he left her, was not sufficient assurance that the berth was safe. He exonerated the contractor's surety on the ground that it had not taken over the performance of the contract.

The books contain a good deal of discussion as to the duties of wharfingers, consignees and tugs towards barges, damaged by unknown boulders, piles, shoals or other obstructions in the bottom of berths at which they are moored. Panama R. Co. v. Napier Shipping Co., 166 U.S. 280, 17 S.Ct. 572, 41 L.Ed. 1004, is to be set down rather as a case where the wharfinger actually knew that the berth was foul; but in Smith v. Burnett, 1898, 173 U.S. 430, 19 S.Ct. 442, 43 L.Ed. 756, the court rested liability upon the failure of the respondent, at once the consignee and the wharfinger, to acquaint itself with the berth. For this it relied for the most part upon English and state cases; but laid down no more specific principle than that the care must be that called for by all the circumstances. Already in 1880 Judge Choate had exonerated a tug because "reasonable care" did not include acquaintance with the bottom, Powell v. The Willie, D.C., 2 F. 95 (affirmed by Blatchford J. on the opinion below in C.C.N.Y., 8 F. 768); and we have often held or implied, that the liability of wharfingers, consignees, or tugs, is to exercise "reasonable care," and is to be determined in each situation by balancing the risks imposed upon others by not taking precautions against the cost and trouble of the precautions. In short we have treated the situation as an ordinary case of "negligence." Schoonmaker v. City of New York, 2 Cir., 167 F. 975; Stevens v. Maritime Warehouse Co., 2 Cir., 263 F. 68; The W. H. Baldwin, 2 Cir., 271 F. 411; M. & J. Tracy Inc. v. Marks, Lissberger & Son, 2 Cir., 283 F. 100; Berwind-White Coal Mining Co. v. City of New York, 2 Cir., 48 F.2d 105; The Gildersleeve, 2 Cir., 68 F.2d 845; Berwind-White Coal Mining Co. v. City of New York, 2 Cir., 135 F.2d 443. See also Atlantic & Gulf Shipping Co. v. Marine Contracting & Towing Co., 5 Cir., 26 F.2d 70. We do not mean that this results in imposing the same degree of care upon all three classes; for example, as Hough J. indicated in M. & J. Tracy Inc. v. Marks, Lissberger & Son, supra, 283 F. 100 at page 102 the reputation of a wharf may excuse a consignee, and a fortiori a tug, though it would not excuse a wharfinger. A wharfinger invites vessels to use his wharf and induces them to suppose that all berths are safe: if he has not exercised care to see that they are, he exposes them to a risk which they have no reason to anticipate. A consignee also invites a barge to use the wharf, when he asks it to deliver goods there; and if he has been using it for a long time, his invitation may induce as much reliance as a wharfinger's, though not if he is using the wharf for that single occasion; the degree of precaution expected of him may well be deemed to depend upon the permanency of his use. But a tug will rarely, if ever, be in his position; she must ply her trade all over the harbor, and there is ordinarily no warrant, either in principle or authority, for requiring her to sound at each wharf where she delivers a barge. She is indeed to be held for such information as is current in the calling; and if the wharf has a bad name, she should know it; that would...