White v. Upper Hudson Stone Co.

• Decision Date: 11 December 1917
• Docket Number: 58,59.
• Citation: 248 F. 893
• Parties: WHITE et al. v. UPPER HUDSON STONE CO. et al. BAY DREDGING & CONTRACTING CO. v. UPPER HUDSON STONE CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

248 F. 893

WHITE et al. v. UPPER HUDSON STONE CO. et al.

BAY DREDGING & CONTRACTING CO. v. UPPER HUDSON STONE CO. et al.

Nos. 58, 59.

United States Court of Appeals, Second Circuit.

December 11, 1917

One Bleakley, owner of scow U.H. 44, chartered her to Upper Hudson Stone Company. The contract admittedly amounted to a demise, and made the charterer an owner pro hac vice and a bailee. By the terms of charter the scow was to be ordinarily employed within the limits of New York harbor. Bleakley maintained insurance on his boat in the form common for harbor. traffic, insuring him (Bleakley) 'on account of whom it concerns, loss, if any, payable to him' against 'adventures and perils of the harbors * * * and other waters,' within the limits of the harbor of New York. This policy became void if the scow was taken beyond said limits, but it was agreed between charterer and owner that the vessel might be so taken, if the charterer paid for the temporary additional insurance required.

In July, 1915, Gahagan's tug took the U.H. 44 loaded to the Long Beach bar, there delivered her to the Ono, and while in charge of the latter vessel she took the ground twice and received very serious injury. She was drawing 6 1/2 feet, and at high tide there was about 8 feet on the bar. Whether the grounding was due to a miscalculation of the tide or to the swell is perhaps uncertain. It was daylight at the time of injury, and the navigation of the Ono and scow was entirely in the hands of the former's master. After the scow was injured, the owners of the Ono devoted considerable time and effort toward her rescue. The insurer paid Bleakley under the policy for the scow's injury, and he assigned his claim against all parties in the premises to the present libelants who are the insurer's nominees.

For the benefit of the Insurance Company, therefore, libelants brought the first of these suits, seeking to recover against the Upper Hudson Stone Company as charterer and bailee because the U.H. 44 was not returned in good order and condition, reasonable wear and tear excepted. Under the Fifty-Ninth rule in Admiralty (29 Sup.Ct. xlvi) the Stone Company impleaded Gahagan and the Ono, alleging their negligence, or that of one of them, as the immediate cause of the scow's injury. The second action (tried with the first) is by the trustee in bankruptcy of the Ono's owner, and is an attempt to recover as a salvage award the expenses to which he was subjected in endeavoring to assist the U.H. 44.

The trial court found no fault on the part of the Ono or Gahagan and therefore dismissed the libel in the first case, and in the second refused any award on the ground that the claim advanced was not salvage. Both libelants appealed.

Alexander & Ash, of New York City (Mark Ash, of New York City, of counsel), for appellants White and Quick.

Lampke & Stein, of New York City (Nelson Zabriskie, of New York City, of counsel), for appellant Bick.

Foley &amp Martin, of New York City (William J. Martin and George V. A. McCloskey, both of New York City, of counsel), for appellee Upper Hudson Stone Co.

Austin J. MacMahon, of New York City, for appellee Gahagan.

Before ROGERS and HOUGH, Circuit Judges and LEARNED HAND, District judge.

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

Since the relation between Bleakley, the scow owner, and the Upper Hudson Company, as charterer, was exactly that so recently restated by this court in Hastorf v. F. R. long, etc., Co., 239 F. 852, 152 C.C.A. 638, the charterer was prima facie responsible for any failure to return the boat in good order reasonable wear excepted. The obligation was that of a bailee, and liability was not discharged by showing that the vessel had been intrusted to the care of another, and injured either by that other's negligence or while in such other's charge. Gannon v. Consolidated Ice Co., 91 F. 539, 33 C.C.A. 662. Therefore the negligence of Gahagan and the Ono, or of either, was only important because proof thereof would enable the Upper Hudson Company to retrieve from them the loss to which it was subjected by the nature of its contract with Bleakley.

We find it uncertain on the evidence whether there ever was any agreement by Gahagan to tow the respondent's barges all the way into Long Beach inlet or harbor. It may be that he in the beginning of the work, employed the Ono, or sublet or farmed out to that boat some portion of his towing contract. But before the accident herein a course of business had been established by which both Gahagan and the Ono's owner dealt directly with the Upper Hudson Company; each worked independently for that company; each was...