Nicholson v. Erie R. , 255 F. 54 ( 1918 )

HOUGH, Circuit Judge.

While entertaining no doubt that the charter, by virtue of which respondent was in possession of the Nicholson, amounted to a demise, we do not ground decision on the relation thus established. The libel does not require consideration of this point, but charges in common form negligence in mooring and leaving the barge in “an' exposed, unsafe, and dangerous position.” We agree with the trial court that this charge is sustained by the joint effect of the following considerations: 4

[1,2] 1. It was some evidence of negligence that the navigators of respondent paid no attention to the official warnings of the northwest storm, which was the principal cause of libelants’ damages. It is not held that mere failure to observe storm warnings or to obey them is conclusive proof of negligence; but it is evidence of a failure in that ordinary care and skill which is a master mariner’s duty. In substance we agree with the remarks on this subject contained in The Salutation (D. C.) 239 Fed. at page 423. The evidence herein shows that the testifying masters considered it no part of their duty either to observe or give weight to the Weather Bureau’s advice. This was an error; we think such duty exists.

2. Probably the proximate cause of the Nicholson’s damage was the placing outside of her of the Erie lighter 262-F. When this was done, the weather was apparently getting worse and the storm about to burst. The mooring of this lighter against the Nicholson was not done by respondent, but by another tug, apparently acting under the orders of the agent for a steamship loading near by, to whom, however, respondent had intrusted the charge of its lighter 262-F. Plainly the owner of that lighter does not escape responsibility to third parties by employing or permitting another person to handle and move said lighter. For the purposes of this case it is respondent that placed the 262-F against the Nicholson and left her there, whatever may be the. rights and remedies of the Erie Company over and against the persons performing this piece of carelessness.

3. It was further evidence of negligence that at a time when the danger was imminent, if some damage had not already been done, the railroad company did not more swiftly furnish assistance to any boat in its charge. A delay of two hours in sending a tug to South Brooklyn, when a high northwest wind was known to be injuring vessels in such an exposed position as is here shown, cannot be excused by anything in the present record.

For the foregoing reasons, the decree appealed from is affirmed, with interest and costs.