Opinion · Court of Appeals for the Second Circuit

Petition of Anthony O'Boyle, Inc.

161 F.2d 966

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1947-06-03
Topic
bankruptcy

FRANK, Circuit Judge. There can be no doubt that the tug Baltimore was grossly negligent. All danger could have been avoided by taking the Daly No. 38 up the port side of the tow, and even the passage up the starboard side could have been safely executed by a master navigating with reasonable care. The master of the Baltimore, knowing of the existence and approximate location of the wreck, used neither a searchlight nor a lookout, although by doing either he could have determined the exact location of the wreck. The only question is whether the damage to the Daly No. 38 should be apportioned between the Baltimore and O’Boyle, the owner of the Farragut, because of the latter’s failure to mark the wreck before the collision.

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PETITION OF ANTHONY O'BOYLE, INC.,161 F.2d 966(2nd Cir. 1947)
Petition of ANTHONY O'BOYLE, Inc., et al. THE FARRAGUT. THE BALTIMORE. THE
DALY NO. 38. THE OVERBROOK.
No. 219, Docket 20526.
Circuit Court of Appeals, Second Circuit.
Decided June 3, 1947.
Proceeding in the matter of petitions of Anthony O'Boyle, Incorporated, as owner of the barge "Farragut"; and of the Pennsylvania Railroad Company, as owner of the steam tug "Baltimore", for exoneration from and limitation of liability; and of Bartle Daly, as owner of the barge "Daly No. 38," libellant, against the tug "Overbrook" her engines, etc., the Pennsylvania Railroad Company, claimant; and of Greenpoint Coal Docks, Incorporated, as owner of a cargo of coke laden on barge "Daly No. 38," against barge "Daly No. 38," Bartle Daly, claimant. From an interlocutory decree,71 F. Supp. 72, holding the tug Baltimore solely at fault for damages arising out of collision between the barge Daly No. 38, in tow of the tug Baltimore, and the sunken barge Farragut, owned by Anthony O'Boyle, Incorporated, the Pennsylvania Railroad Company appeals.

Affirmed.

The Pennsylvania Railroad Company has taken this appeal from an interlocutory decree holding it solely responsible for damages to the libellant Daly's Barge No. 38. The damage occurred when the Daly No. 38 hit the wreck of the barge Farragut while in tow of appellant's tug Baltimore.

The Baltimore took a tow of fourteen barges to its stake boat near Bedloe's Island about midnight of February 7, 1944. At 1.00 a.m. the barge Farragut, owned by Anthony O'Boyle, Inc., sank in the middle of the third tier of the tow. After the barge on her starboard side was removed, the tow swung to port, leaving the wreck in an exposed position to the right of the tow. The tug Baltimore moved the Daly No. 38 from the rear of the tow and started to take her up to the head, along the starboard side of the tow, between the tow and the wreck of the O'Boyle barge, Farragut. The night was clear and moonlit at the time the accident occurred, and the roof of the house on the Farragut, though awash, was visible above the water. The trial judge found that "no steps were taken by those in charge of the Baltimore to ascertain the location of the sunken Farragut by sounding, inquiry, the use of its searchlight or other available means. Proper precaution in the navigation of the tug Baltimore would have disclosed to those in charge of the tug Baltimore the location of the barge Farragut."

About an hour after the sinking of the Farragut, Loretta O'Boyle, secretary-treasurer of Anthony O'Boyle, Inc., received aPage 967telephone call at her home in Brooklyn from one Miller, a dispatcher employed by the Pennsylvania Railroad. Miller informed her that the Farragut had sunk at the stake boat and that the Coast Guard had been notified of the sinking. A Coast Guard vessel was at the scene of the sinking shortly after it occurred and before the tug Baltimore commenced to tow the Daly No. 38. The trial judge found that "the Coast Guard was the proper authority to receive notice of a sunken vessel in order that it would be properly buoyed and marked. No steps were taken by Loretta O'Boyle or anyone connected with Anthony O'Boyle, Inc., to give notice to the Coast Guard until after the Daly No. 38 had been brought into collision with the Farragut." Loretta O'Boyle testified that she assumed that, if the Coast Guard had been notified, they would "take care of the boat."

The trial judge concluded, "(1) Those in charge of the Baltimore were solely at fault for bringing the barge Daly No. 38 into collision with the sunken Farragut, because they knew or should have known of the location of the wreck or should have taken steps to ascertain its position in that area. (2) There was no fault on the part of the barge Farragut or her owner, either in connection with the sinking of the Daly No. 38 or by reason of the fact that steps were not taken prior to the collision to mark the wreck, because * * * the Pennsylvania dispatcher told Loretta O'Boyle that the Coast Guard had been notified, and also because too short a time elapsed between the notice to Loretta O'Boyle and the time of the collision of the Daly No. 38 with the Farragut, to have afforded her or the other officers of Anthony O'Boyle, Inc., the opportunity to mark the wreck."
Burlingham, Veeder, Clark Hupper, of New York City (Chauncey I. Clark, Frederic Conger, and George R. Wagner, all of New York City, of counsel), for petitioner-appellant.

Mahar Mason, of New York City (Frank C. Mason, of New York City, of counsel). for claimant-appellee.

Macklin, Brown, Lenahan Speer, of New York City (Gerald J. McKernan, of New York City, of counsel), for petitioner-appellee.
Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
There can be no doubt that the tug Baltimore was grossly negligent. All danger could have been avoided by taking the Daly No. 38 up the port side of the tow, and even the passage up the starboard side could have been safely executed by a master navigating with reasonable care. The master of the Baltimore, knowing of the existence and approximate location of the wreck, used neither a searchlight nor a lookout, although by doing either he could have determined the exact location of the wreck.

The only question is whether the damage to the Daly No. 38 should be apportioned between the Baltimore and O'Boyle, the owner of the Farragut, because of the latter's failure to mark the wreck before the collision. The Wreck Statute, 33 U.S.C.A. § 409, places a duty on the owner "immediately to mark" the wreck. "Immediately" has been interpreted to mean within a reasonable time after the owner is notified of the wreck. The Anna M. Fahy, 2 Cir., 153 F. 866. About two hours elapsed between notification and the time of the collision. In some conditions, failure to mark within that period might be unreasonable. But, considering the time of night and the fact that none of the O'Boyles was then in the office, we cannot say that the passage of two hours without any action on the part of the O'Boyles constituted a dereliction of the statutory duty to mark the wreck.

This alone would be sufficient to dispose of the case, but we note, in passing, the reasonableness of Miss O'Boyle's assumption that notification of the Coast Guard was equivalent to a request that they mark the wreck; such a request would probably have been sufficient to discharge O'Boyle's duty to mark. See The Plymouth, 2 Cir., 225 F. 483. We are aware that the duty has been held to be non-delegable, Elizabeth Company v. Mesick Mesick, 2 Cir., 298 F. 743, but we feel thatPage 968a distinction may be drawn between (1) a request to the authorized government agency, 33 U.S.C.A. § 736, and (2) a request to a private company which, by such request, becomes the agent of the owner so that the agent's delay in marking the wreck would be imputed to the owner of the wreck.

Affirmed.