Where a large steamship, heavily laden and awkward to steer,
traversing a canal, sheered to one bank and then the other,
grounded, sprang a leak, and, despite efforts first to hold and
lighten and then to tow her through, sheered again to the other
bank and sank, becoming a total loss with her cargo,
held,
upon the findings and evidence --
(1) That the master was not to blame for not displacing a canal
pilot after the first accident and for permitting the vessel to
proceed, before slack water, not fully pumped out and with her
cargo unadjusted, in view of the canal company's regulations, the
directions of its superintendent, and the situation and consensus
of opinion existing at the time. P.
258 U. S.
344.
(2) That the loss was attributable to the joint negligence of
the canal company and the master in attempting to pass such a
vessel through the canal. P.
258 U. S.
345.
(3) That all the damages, arising from the loss of the vessel
and its cargo, injury to the canal, and obstruction of the canal
business should be divided equally between the canal company and
the vessel owner. P.
258 U. S.
345.
(4) The cargo owner, having proceeded only against the canal
company, was entitled to a decree for the full amount of its loss
against that company. P.
258 U. S.
345.
265 F. 538, 267 F. 176, reversed.
Certiorari to decrees of the circuit court of appeals, the one
holding the petitioner Transportation Company liable to the
respondent Canal Company for damages found to have resulted from
negligence of the petitioner in the management of its vessel in the
respondent's canal,
Page 258 U. S. 342
the other exonerating the respondent Canal Company from
liability to the petitioner Coal Company for the loss of a cargo
contained in the same vessel.
MR. JUSTICE HOLMES delivered the opinion of the Court.
On December 13, 1916, the steamer
Bay Port, while
passing through the Cape Cod canal, ran ashore on the south bank,
and the next day sank diagonally across it. In January, 1917, the
Canal Company filed a libel against the White Oak Transportation
Company, the owner of the steamer, to recover for damages suffered
by the canal and the obstruction of traffic through it. It also
filed a libel against the T. A. Scott Company, Inc., a wrecking
company, for negligence in dealing with the steamer after it had
grounded, but this company has been exonerated, and is not before
us. In May, 1917, the Transportation Company filed a libel against
the Canal Company to charge it with a total loss of the steamer and
freight, and in March, 1918, the Northern Coal Company intervened,
seeking to hold the Canal Company for a total loss of the cargo,
which was coal. The causes were heard together below, and were
consolidated by agreement for hearing and determination upon one
record here. The district court found no negligence on either side,
and dismissed all the
Page 258 U. S. 343
libels. 251 F. 356. The circuit court of appeals held the
Transportation Company liable to the Canal Company, and reversed
the decree in that cause. 265 F. 538. It also dismissed the
intervening petition of the owner of the coal. 267 F. 176.
We agree with the circuit court of appeals that the owners of
the Bay Port and the Canal Company both ought to have known that it
was unsafe to take the vessel through the canal. We agree with the
dissenting Judge in the circuit court of appeals that the loss of
the cargo must be attributed to the joint negligence of the two,
and we are of opinion that the amount of that loss, that suffered
by the vessel and that suffered by the canal, should be added
together and divided between the Bay Port and the Canal.
The Bay Port was a lake-built steamer of the whaleback type, 265
feet long and of 38 feet beam, which had been brought to the
Atlantic. When deeply laden, she steered somewhat awkwardly, but as
well as other vessels of the type. She was loaded with 2,393 tons
of coal, and had a draft of eighteen feet two inches aft and
seventeen feet eight inches forward, when, soon after noon on
December 13, 1916, she appeared at the western or Wing's Neck
entrance to the canal. Her captain was a man of experience, and had
gone through the canal twice with the
Bay Port when empty,
never when loaded. He had been solicited by the Canal Company to go
by way of the canal, the Company representing the canal to be 25
feet deep throughout, as its charter required. Mass. Act of 1899,
c. 448, ยง 3.
Having got permission, the
Bay Port started in tow of a
tug with a competent pilot. The tide was about half out, running
west at about three knots an hour. After proceeding halfway through
the canal, the vessel passed over a shoal where there was not more
than twenty-one or
Page 258 U. S. 344
twenty-two feet of water, and soon after sheered toward the
north bank and then toward the south bank, where she grounded at
about 1,000 feet from the shoal. It is strongly argued that this
and the shoal next to be mentioned caused the trouble, but,
notwithstanding
The
Pennsylvania, 19 Wall. 125, we will accept the
finding of the two courts that they were not the proximate cause.
Two tugs and the superintendent of the canal came to the help of
the
Bay Port, but could not get her off, as the tide was
falling. The tugs kept her upon the bank, and the next morning, a
hole was discovered in her bottom, but was plugged. Arrangements
had been made to lighten the cargo when unexpectedly, about 10:15
a.m., she slid into the channel. The pilot with whom she started
had left, but another canal pilot who seems to have taken his place
ran upon the bridge and directed the captain to start his engines
at full speed to prevent her drifting upon the opposite bank. She
was down at the head from 18 to 30 inches, with a list to port from
15 to 24 inches. Since 6 a.m., the tide had been running to the
east, the direction in which the steamer was going, and the pilot
ordered a tug to take her in tow and started toward the east. The
Bay Port proceeded about a mile, but after she had passed
another shoal spot by some 2,000 feet, sheered again two or three
times and stranded on the north bank, the bow came clear and swung
downstream, and then she sank and became a total loss.
The circuit court of appeals thought that the master was
responsible for the loss because he did not displace the pilot and
prevent the vessel proceeding before she was fully pumped out, the
cargo adjusted, and slack water had come, which he might have done
by holding her in the channel by the tugs that were present or by
tying up to some dolphins that he passed. Upon this point we agree
with the reasoning of the district court. The emergency was
serious. The canal regulations provided
Page 258 U. S. 345
that, in the event of grounding, the canal authorities should
have the right to direct all operations for floating the vessel.
The superintendent of the canal, while present, had told the pilot
that he wanted to get the vessel out of the canal as soon as
possible. The captain regarded that as the understanding of all
concerned. The wreckers called out to the pilot: "She is yours."
The pilot assumed command and started to carry out the
superintendent's wish. Everybody at the time thought that the
proper course, and we cannot think that the master was to blame for
not overriding the judgment of the local experts, with which his
own concurred, on general grounds. On the other hand, as we have
said, we agree with the circuit court of appeals, and, in any
event, we find that the evidence recited by it shows that the
Company had notice, and that the master of the vessel ought to have
known that it was unsafe and improper to try to carry this vessel,
loaded as it was, through the canal. Both parties therefore are
responsible for all the damages, including the loss of cargo, and
they should be divided between the two. The cargo owner, however,
having proceeded only against the Canal Company, is entitled to a
decree against that company for the full amount.
The
Atlas, 93 U. S. 302;
The New York, 175 U. S. 187,
175 U. S.
209-210.
Decree of circuit court of appeals reversed.
Decree to be entered that the Northern Coal Company recover
its damages and costs from the Boston, Cape Cod & New York
Canal Company; that the White Oak Transportation Company exonerate
the Boston, Cape Cod & New York Canal Company from one-half of
the above damages and costs, and that the damages and costs of the
White Oak Transportation Company and the Boston, Cape Cod & New
York Canal Company be equally divided between those two
companies.