The Eli B. Conine , 233 F. 987 ( 1916 )

HOUGH, District Judge

(after stating the facts as above). Caution in tempestuous weather is of course obligatory, even in narrow and sheltered waters; and danger arises for harbor craft, when stronger or better built vessels would run no risk. Care is largely measured by what is to be taken care of. The navigators of these towing tugs knew, or were bound to know, that they had in charge, not one, but several, boats of little freeboard, filled with coal, and easily swamped, if exposed to the full force of waves, moderate when measured by what is to be expected in open waters.

It was known, also, that a long-continued southerly wind must rouse a considerable sea at the Battery, because there is open water from there to the Narrows, and it was obvious that in turning eastward out of the North River the starboard side of the tow woitld be exposed to the full sweep of a sea that a most unusual wind had been arousing for hours. These dangers were not thought sufficient to prevent or delay the trip, but that proceeding ahead was an error of judgment the event both as to boat and tug soon showed.

“Lack of care under the circumstances,” which is negligence, is rarely willful or reckless; it is usually error of judgment. But the converse is not true — that every error of judgment is negligence. The error must be measured by the standards of conduct and business knowledge furnished by the evidence and by experience of which even courts can take cognizance without direct testimony. If the error, viewed from that standpoint, is such as would not have been committed by a reasonable man, reasonably skilled in his occupation, it is negligence. When thus tested, the presumably deliberate act of the Conine’s navigators must be pronounced negligent, because it exposed the Lillian (and other boats) to dangers they were ill-fitted to endure, and of which no harbor captain could be ignorant, indeed, the evidence leaves us in no doubt that the perils encountered were known to all, and justly feared by some, of the,licensed men in charge of the towing craft.

Defense rests principally upon the argument that it was not negligent to start upon the voyage (which is admitted), that no occasion for alarm arose until Pier 1 was reached, and that it was then impossible •to do anything but go ahead, risk the dangers of rounding the Battery, and seek shelter in the narrow waters of the East River. To this we cannot ■,agree. How hard it was to drag the tow against the wind and waves is shown by the time required to get from Cortlandt street to Pier 1. The tide aided little against such a storm. It was not only possible, but quite feasible, to stay in the North River, and this should have been done. All that was required was cessation of effort to get ahead, and the tow would have remained substantially as it had been for hours. The only obligation to proceed resulted, not from the weather, but from an imperative desire to deliver the coal at its East River destination, which is no excuse for errors of navigation.

It is urged as a contributing cause of disaster, and a fault on the part of the Lillian, that she had no covering hatches in place. Her condition was well known to the tug masters, and it is rarely necessary to put on hatches while working in the upper harbor of New York. Boats of the class in question usually omit them on harbor trips. The Lillian was entitled to expect exposure to no unnecessary danger; she was subjected to such danger, and that constitutes the primary fault in this case. As it was no fault on the Lillian’s part to start without covers in place, and it was a fault in the tugs to take her around the Battery in such a storm, we cannot consider it negligent to omit a possible precaution against a danger not reasonably to be anticipated, and produced by the error of claimant’s employes. We‘say possible precaution, because it is doubted whether the covers under circumstances shown would have changed the event.

The decree is affirmed, with interest and costs.

other cases see samo topic & KKY-NUMB23R ia all Key-Numbered Digests & Indexes