Sabine Towing Co. v. Brennan , 72 F.2d 490 ( 1934 )

HUTCHESON, Circuit Judge.

Appellant, petitioner in “a cause of exoneration from or limitation of liability” on account of the sinking of the tugboat Edgar F. Coney and the loss of her crew, was unsuccessful below. The District Judge found that the weather in which the Coney was operating at the time it sank was not unusual, but reasonably to be expected at that time of year. He thought petitioner had failed to carry the burden it was under to show that the tug was seaworthy and properly equipped and supplied. He found too, that the proof affirmatively established that in making the repairs on the Coney the owner had neg igently made it unseaworthy as to stability and buoyancy by overweighting it. Denying the petition, he found for claimants.

Appellant challenges these findings and the decree on which they rest as without support in the evidence. It argues that the storm in which the Coney sank was sufficiently severe to account for the sinking without fault. It argues too, that the showing it made regarding the outfitting and preparation of the Coney for its change of use from coastwise to ocean going, fully satisfied every requirement of due care. It argues, finally, that if there was negligence in equipping and outfitting the Coney its proof lias clearly shown that this was without its knowledge or privily. Claimants reply, not so. Vigorously defending the findings, they argue that they are in accord with the great preponderance of the evidence; indeed, that no other view would he reasonable. Appellant and appellees are in substantial agreement as to the controlling principles of law. Their differences, except in one particular, arise out of their conflicting views of what the evidence established. The point of law on which they differ is whether, f.o avail of limitation, the barge should not also have been surrendered. The District Judge decided this issue in favor of appellant. Claimants argue here with conviction lhat this was error. They insist that the barge must be sui rendered along with the lug as a condition to limitation — citing Sacramento Nav. Co. v. Saltz, 273 U. S. 376, 47 S. Ct. 368, 71 L. Ed. 663; Standard Dredging Co. v. Kristiansen (C. C. A.) 67 F.(2d) 548; In re W. E. Hedger (C. C. A.) 59 F. (2d) 982; Alvah H. Boushell (C. C. A.) 38 F.(2d) 980; The El Sol (D. C.) 45 F.(2d) 852.

While we think claimants are right that the barge should also have been sun-endered, we do not find it necessary to determine the effect of the failure to surrender it, nor whether it may still be surrendered, because of our view that on the merits the decree for claimants -was right. We address ourselves io those. The facts may be quite briefly stated, for though considerable testimony was taken, the issues are few and narrow, and the ease made was in small compass.

On January 28, 1930; the Edgar R Coney left Sabine Bar with the barge “Pure Detenox” in tow, bound for Pensacola, Fla. At this .time the weather conditions were moderate. During- the afternoon and night they grew worse, with heavy rain squalls and shifting winds. The baige, however, steered all right, following in the wa,ke of the tug, and no signals were exchanged, indicating danger or trouble. The weather, while severe, was not unusual for- that time of the year. As the captain of the barge and some of the crew put it, “We have been in that kind of weather many times” and they wore not expecting or looking for any trouble. The night was very dark, but there were flashes of lightning which enabled them to see the tug from time to time. About 10 p. m. the crew on the barge noticed the lights on the Lug, which had been appearing and disappearing at intervals, finally disappear altogether. Shortly after this cries for help were heard from men in the water near by. Due to the condition of the weather, the barge being deeply loaded, and seas breaking over her decks, with a stiff wind and heavy rain at the time, they were unable to launch the life boats and could only throw life buoys and life belts and other available gear to the men in the water. Shortly afterwards, discovering that the barge was not being towed, they succeeded, though with difficulty, in letting the anchor go and anchoring for the night. On the morning of January 29, the towing hawser was hauled onto the barge with towing hooks on end intact. The chain had parted from around the bitts on the tug. The barge crew then discovered the topmast of the tug sticking out of the water about 4 feet, indicating that the tug was resting on the bottom in about 42 feet of water. All on the tug were lost, and what actually caused it to sink can be determined only circumstantially. For many years the Coney, a Tampa tug, had been engaged in towing coastwise. Appellant in the latter part of 1929 bought it for $30r 009, and after spending $20,000 on it in repairing and reconditioning it, obtained a certificate of inspection from the United States local inspector in which the license was enlarged from coastwise to ocean going. It is not claimed that any of these repairs were badly made, or that any bad material was put into them. The claim is that the Coney was cranky, and unstable, and that only by precisely keeping it within the load and draft limits prescribed for it in an inclining test, which it had been subjected to- many years before at Tampa, could it be safely operated even coastwise. Specifically it was proven that a Dialogue boat, well and safely built, it had from time to time undergone changes in construction and in use from coastwise to ocean going- which had made it so unstable as to require an inclining test, that as the result of this test permanent orders had been issued limiting its draft to I0l feet 5 inches under fixed weight conditions, and that while these weight conditions and this draft were observed, it had been safely operated. It was claimed that appellant, the now owner of the tug, in disregard of these restrictions,' added weight to it which put it down in the water below the draft fixed and so reduced its freeboard as that when subjected to the action of heavy seas rolling over it, it was made unable to eome easily up, and put in great danger of sinking. It was around this point, as to the correctness of the test made by Captain Noel, and as to what was actually done to conform to it, that the great contention raged. Captain Noel testified for claimants in support of his test, while for the petitioner a Mr. Slade very vigorously disputed Noel’s measurements and conclusions, and insisted that the Coney had a much greater depth of hull than Noel allowed it, and that by correct measurements it could have been loaded to 11 feet 10 inches, still leaving 1 foot 1 ineh for freeboard. Noel testified by deposition; Slade in person.

Another matter of dispute and contention was whether the Coney’s fuel tanks were cut down 24 inches as required by the order, or only 12 inches as desired by her then owner. A great deal of testimony hearing circumstantially on this point, but not directly establishing it, was taken. That the boat had been thought cranky and unstable, and that the inclining test was deemed necessary and was made, was not disputed. The dispute was over whether the test had been’properly made, whether the requirements had not been more rigorous than necessary, whether those made were met, and whether the additional weight the new owners added could have made it unstable. The petitioner.was in the embarrassing position of having, after the loss, to minimize the importance of, and to explain away as far as possible, the stability test and the conditions imposed as the result of it, because in purchasing the vessel and reconditioning it for ocean going, and especially in adding the weight which was added, it had acted in complete ignorance of the fact that the test had been made, and in reliance entirely on the certificates of inspection and the oral reports it got without resorting to the information about the boat which was in writing and easily and readily available. In addition, therefore, to vigorously claiming the protection of and the right to rely on the certificates of inspection the boat had, the petitioner struggled hard to show that the crankiness and instability the boat had evidenced before the inclining test was ordered was the result of improper handling, and, if not, that Noel had greatly magnified its gravity in his inclining test, and had imposed unreasonable conditions through wrong measurements and a misunderstanding of the nature, character, and service of the boat. Claimants, in support of their position that the inclining test was accurately made, and the conditions imposed were wisely fixed, proved by Wiebe, for many years its master, that after the test the boat was run for years with the loaded draft kept down to the 10 feet 5 inches recommended, and that during that time it had had no trouble, and they proved also that the addition of 6 tons to its weight would reduce the freeboard. As to just how low the tug sat in the water, what its draft was, and what freeboard it had when, fully loaded, it set out on its voyage, there was no direet testimony. Appellant offered the testimony of its officers and employees and also of the government inspectors that, while they made no tests for stability, the boat looked to be and they thought it was entirely seaworthy and in good shape, and that they did not notice any substantial difference in its freeboard before and after the additional weight had been put on. The only witnesses purporting to state how low it was in the water after its fuel tanks were filled and it was ready for the trip were the master of the barge and some of the employees, but none of these undertook to state the loaded draft or the freeboard of the tug, except that -Barrios, the barge master, testified in answer to the question, “How mueh free-board bad she,” “The top rail was on top of the water about half a foot.” Some of the men testified in a general way that the tug sat “no deeper in the water than the rest of them are when they get oil.” Barrios’ testimony that the.top guard was 6- inches above the water was neither denied nor explained. Claimants rely upon the testimony regarding the necessity for, and the making and result of, the inclining test, and the conditions imposed afterwards, upon Noel’s testimony that, fully loaded, the tug had a draft of 10 feet 111%6 inches, with a total depth of hull of 11 feet 6 inches, and a freeboard of only 6%g inches, and the proof that it sunk in weather usual and to he expected at that time of the year. They argue that here is the complete and perfect explanation of the sinking, an overloaded tug without sufficient buoyancy, subjected to the heat and wash of heavy seas. They rely too, upon it that the instability of the vessel and that it had been subjected to an inclining test, and the orders governing and controlling the weight and load limit thereafter were all matters of record and in printed form available to the purchaser. They argue that it was negligence on appellant’s part to buy an old tug which had undergone as many changes and uses as the Coney liad, and, in order to convert it from coastwise to ocean going, put additional weight on it without first obtaining a thorough acquaintance with the history of the boat, and without taking the precautions against making it unstable which that historv required. The Vestris (D. C.) 60 F.(2d) 273; The Miami (D. C.) 43 F.(2d) 562; Union Pac. Ry. v. James (C. C. A.) 56 F. 1001. They argue that this was negligence, negligence in its very nature that of the petitioner, not only because this was a matter which could not have been delegated, but because it was not in fact delegated to any person. They point to the undisputed evidence that the officers of appellant themselves conducted the purchase and made all the inquiries, and that though the general supervisión of conditions and repairs was under the charge of Guy, the port engineer, none of them wore adopted or installed without consultation with the officers and approval by them.

Appellant insists tliat all of the deductions appellees make are based on the false premises of Noel’s measurements and views, and appellant’s claim, contrary to the evidence, that the fuel tanks were not cut down 24 inches as required. Pointing to Slade’s testimony, that the depth of the hull was at least a foot more than Noel gave it, it urges that the tug must have had a freeboard of at least 2 feet, before the additional weight was put1 on it, and that that could not have lowered it more in the water than 2 to 3 inches, a negligible thing with that freeboard. Replying to appellees’ urging that the circumstances show clearly that the vessel was unseaworthy, it argues that this is not sufficient; it must he shown that if unseaworthy, it was so because of appellant’s negligence. It points to the certificates of inspection obtained year after year and just before this voyage was begun, to the testimony of the owner’s officers and of the inspectors that everything was done which in their opinion ought to- have been done to make the vessel seaworthy, as proof that no negligence appears.

We think it plain, in fact, the record leaves no room for question, that whatever may be said in favor o£ exoneration altogether, beea-use of failure to prove negligence, this is not a case for limitation of liability. Whatever was done with the tug or about it was the aeh of the owner through its managing officers, and, if them was negligence, the owner was privy to it. All of those who testified for appellant make this clear. While they testified positively that Guy was the port engineer and in charge of repairs, they testified too that he made no serious repairs without consulting the officers, and that everything that was done by him in actually equipping this vessel was done under their supervision, and with their approval. Under these circumstances, if there was negligence, the officers were privy to it, and appellant, present in the presence of its managing officers, was privy to it too. Ft. Worth Elevators Co. v. Russell (Tex. Sup.) 70 S. W. (2d) 397; In re N. Y. Dock Co. (C. C. A.) 61 F.(2d) 777; Henson v. F. & C. Trust Co. (C. C. A.) 68 F.(2d) 144; The Malcolm Baxter, Jr., 277 U. S. 323, 48 S. Ct. 516, 72 L. Ed. 901; The Miami (D. C.) 43 F.(2d) 562; The Vestris (D. C.) 60 F.(2d) 273; Kellogg & Sons v. Hicks, 285 U. S. 511, 52 S. Ct. 450, 76 L. Ed. 903. Such difficulty as there is in the ease we think arises out of the question whether petitioner is entitled to exoneration altogether, because, as appellant claims, no negligence has been shown.

Claimants’ suits for death damage sound in negligenee, and all questions of burden of proof aside, now that the ease is fully in, if no negligence appears they may not recover. Appellant argues that its proof of weather conditions completely explains the tug’s sinking, and rebuts the presumption of unseaworthiness which, hut for this explanation, the sinking would raise. Martin v. The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65; Benner Line v. Pendleton (C. C. A.) 217 F. 497; The Calvert (C. C. A.) 51 F.(2d) 494. It argues further, that if it is mistaken in this, claimants still fail because they have failed to show negligence. We do not think so. Proof that the tug was lost in the dirty weather prevailing that night might, if it stood alone, be a sufficient showing to rebut the presumption of unseaworthiness arising from the mere fact of the sinking, though the sto-m was not. an unusual one, and it is the generally accepted rule that a storm relied upon to explain the loss of a boat in rebuttal of the claim, of unseaworthiness must bo shown to have been of extraordinary intensity. The Rosalia (C. C. A.) 264 F. 285; The Anna C. Minch (C. C. A.) 271 F. 192, 195; American Agricultural Chem. Co. v. Brooklyn & B. Nav. Co. (D. C.) 56 F.(2d) 271; The Charlton. Hall (D. C.) 285 F. 640; The Edith (C. C. A.) 10 F.(2d) 684; Atlantic Transport Co. v. Rosenberg Bros. & Co. (The Manchuria), 34 F.(2d) 843 (C. C. A.). Whan, however, the evidence of weather conditions is considered in the light of the whole history of the tug, and of what Was done to it by adding- weight, and especially when it is consideied that no inclining nor stability test ■was made on it, and the repairs and reconditioning were made without knowledge of or regard to its history of tenderness and crankiness, this weather evidence ceases to be explanatory of the loss as its cause. It becomes merely a condition of it. It serves but as a test of the equipment and preparation of the tug for the duties it must perform, and as proof that its condition as to seaworthiness was not what it ought to have been.

“The duty of ship owners to their seamen to see that their ship is seaworthy and her equipment in safe condition for use when she starts on a voyage is a personal oné, responsibility for which they cannot escape by delegating its performance to another. In this respect it is like the common-law duty of a master to provide his servant a suitable place-in which to work. And a seaman injured through failure to perform this duty is entitled to compensation.” Christopher v. Grueby (C. C. A.) 40 F.(2d) 8, 12.

This duty, as to injuries, for which the general maritime law provides recovery, is absolute. Its breach without regard to negligence makes the owner liable for such losses. Carlisle Pkg. Co. v. Sandanger, 259 U. S. 255, 42 S. Ct. 475, 66 L. Ed. 927; The Silvia, 171 U. S. 462, 19 S. Ct. 7, 43 L. Ed. 241; Martin v. The Southwark, 191 U. S. 1, 24 S. Ct. 1, 48 L. Ed. 65. Too, failure to make a ship seaworthy in respect of a matter as important to the lives of the crew as its stability, is prima facie evidence of negligence. The Malcolm Baxter, Jr., 277 U. S. 323, 48 S. Ct. 516, 72 L. Ed. 901; California & Hawaiian Sugar Corp. v. Rideout (C. C. A.) 53 F.(2d) 322; Henson v. F. & C. Trust Co., supra.

The inspection certificates on which appellant relies so strongly are of course evidence bearing on the question of due care, but they are not more, The R. P. Fitzgerald (C. C. A.) 212 F. 678; The Vestris, supra; The Viking (C. C. A.) 271 F. 801, 804; In re Reichert Towing Line (C. C. A.) 251 F. 214; O’Connor v. Armour Packing Co. (C. C. A.) 158 F. 241, 249, 15 L. R. A. (N. S.) 812, 14 Ann. Cas. 66. They certainly are not evidence of the tug’s stability when no tests of it were made. We think, it quite clear that when an owner buys an old tug, licensed coastwise, and equips it for ocean going, it is negligence to send it out without knowing something of its stability, and especially to send it out without such tests, when as in this case its history - and performance in regard to crankiness and tenderness is a matter of official record. We think the case may be summed up in the statement that, after all evidence is in, there stands out as a complete and sufficient explanation of the sinking, in weather serious indeed, but the kind it was expected, and should have been fitted to- meet, the fact that a cranky tug, which because it was unstable and lacking in buoyancy had been theretofore subjected to an inclining test, and operated coastwise under rigid requirements for safety, was prepared, equipped, loaded, and sent out as an ocean-going tug without the owner’s taking notice of this prior test, and in direct vio’ation of the limitations they fixed. We cannot find that the court erred in the conclusions he drew that there was actionable fault. The decree is affirmed.