City of New York v. Clyde Lighterage Co. , 13 F.2d 533 ( 1926 )

HAND, Circuit Judge

(after stating the facts as above). We have no doubt of the correctness of Judge Goddard’s ruling that the respondent’s silence, coupled with sending the tug for daily orders, was an acceptance of the terms of the libelant’s letter of November 16th. That letter was certainly not an acceptance of the letter of November 8th; it would be wholly unwarranted to separate the later amendments which it contained from that which changed the rate on Sundays. The letter was indeed a rejection of the offer of November 8th and a counter proposal, including the clause now in question, as a promise to be made by the respondent in consideration for the libelant’s promise to raise the Sunday rate. The respondent’s acceptance of that counter proposal does not rest merely upon its silence, though under the circumstances that perhaps might aloné have been enough. The respondent did more than that when, without protest, it continued daily to send the tug for orders. That could have had no other meaning than that the proposal was satisfactory, as unquestionably it was in respect of the increased pay. But plainly the respondent could not cut the promise in parts, accepting the increased pay and rejecting those promises which were its consideration.

We are not clear that the respondent, in . addition, questions the sufficiency of the con•sideration for its promise. If so, the point is as ill taken as the first. The original agreement was for $125, “daily,”'which includes Sunday. The added price was a new detriment, which the libelant had not already assumed ; it was therefore a valid consideration for the respondent’s promise, quite independently of either party’s facility of withdrawal on 24 hours’ notice.

The more important question is of the extent of the obligation assumed. The respondent argues, and must argue, that it was subjected -.only to liability for negligence. If so, the whole contract was meaningless, because the tug was liable for negligence in any case. The contract covered three kinds of loss to the city — liability to vessels not in tow of the tug; liability to the owners of scows in tow and chartered by the city; damage to scows in tow and owned by the city. In respect of the first kind of damage, the city’s scows, whether owned or on charter, might be at fault in a collision, either wholly or in part. It was natural for the city to wish to avoid such questions, notoriously difficult of solution, and to ask the tug to pay all such losses as might be established against its vessels while in tow. Next, as to scows on charter, the libelant might be liable under the charters beyond its liability for negligent towage; if so, the contract would absolve it, and avoid any question of proving negligence in the tug. Finally, the city might suffer injury to its own barge from a collision. It was again natural to require the respondent to assume the burden of throwing the loss upon the other party to the collision, if there was one. Prima facie it stood charged. Unless the contract meant this, it meant nothing. While we do not rely on the precise words used, the phrase “assume entire responsibility” seems as apt as any to express the purpose of the parties.

The liability appears to us plain, and the respondent may not avoid it because it was inconsiderately assumed. However, the delays in prosecuting the cause were extravagant. The libelant allowed the respondent nearly 14 months to answer, and took 7 months to put the cause on the calendar. Again, it took 10 months to agree to the damages. If proctors consent to conduct their causes in so laggardly a fashion, we have often said that we will penalize them. Only two-thirds of the interest included in the decree is allowed.

• Decree modified, and, as modified, affirmed.

Judge ROGERS, through illness, was unable to take part in the decision of this case.