EASTERN S. S. CORPORATION v. GREAT LAKES DREDGE & DOCK CO.; GREAT LAKES DREDGE & DOCK CO. v. EASTERN S. S. CORPORATION, 256 F. 497

BINGHAM, Circuit Judge. No. .1355 is an appeal- from a decree of the District Court for Massachusetts, dismissing the petition of the Great Lakes Dredge & Dock Company, brought under sections 4283-4289 of the Revised Statutes (Comp. St. §§ 8021-8027), to have its liability to the Eastern Steamship Corporation for a collision between the corporation’s steamship, the Massachusetts, and the dredge company’s drillboat No. 4 determined, and, if liable, the damages limited.

Appeal No. 1354 arises out of the subject-matter of the appeal in No. 135.5 and involves certain questions that become material only in case the dredge company is held liable for the collision, but is entitled to have its damages limited. The collision occurred July'5, 1913, at about .8:18 a. m., at which time the drillboat lay submerged in the channel of Boston Harbor on what is known as the Spectacle Island upper ledge. Under the direction of the court the drillboat was appraised as she lay on the bottom at $13,568, and a stipulation for that amount was filed by the dredge company.

In the District Court the dredge company was held personally and solely at fault, and damages were assessed at $70,499.65, with costs of $617.92. We fully agree with the findings and rulings of the court below that the dredge company was at fault in that its subordinate agents and servants failed to exercise reasonable care to mark the drillboat after it was sunk, and that the Massachusetts was not at fault in failing to discover the wreck in season to avoid the collision.

The dredge company, however, contends that it was not personally at fault; that, on a fair consideration of the evidence contained in the record, it was without that privity or knowledge essential to charge it with personal responsibility. The evidence discloses that drillboat No. 4 was about 132 feet long, 33 feet beam, and about 8 feet deep; that it was divided into five water-tight compartments, and carried a boiler, drilling machinery, four two-cylinder engines, and other apparatus used in connection with its work.

It was built of steel, and, when at work on a ledge, was held in place by four spuds or iron legs 65% feet long, about 23% inches square, and weighing 12% tons each. The spuds were moved up and down in casings about 13 feet long. The casings at their lower ends were flush with the bottom of the boat and extended above the deck about 6 feet. The spuds were located near the corners of the boat, and their lower ends, which were tapered to about 6 or 8 inches square, rested on the ledge or bottom. They were raised or lowered by steam engines operating geared pinions engaged in a rack on each spud.

There was a valve on the engines, which, on being turned in a given direction, would permit the engines automatically to aid in moving the spuds up or down according as the tide rose or fell. When the spuds stood perpendicularly, the boat would work up and down automatically with the tide; but sometimes they would jam, and to provide for such cases steam was kept on the engines. The drillboat was towed from the Great Takes around through the St. Uawrence to Boston Harbor. When being towed, the spuds are raised and held by pawls fastened to the deck.

In the summer of 1913 the dredge company had a contract with the United States government for the removal of ledges in Boston Harbor. Under this contract drillboat No. 4 had been at work for about two weeks before the accident on a ledge almost in the center of the deep channel, which at that point was something over a quarter of a mile wide. There was some twenty-six feet of water over the ledge, so that only vessels of very deep draft paid any attention to- it. It was the plan of the government to make a 35-foot channel which would be safe for ships of the deepest draft.

No work was done by the drillboat during the day and night of July 4. About 6 o’clock on the evening of July 4, the night crew, when the drill was not working, consisting of Folz and Murphy, went aboard. Folz acted as watchman and mechanic; Murphy acted as fireman. High water occurred about midnight. In the neighborhood of 1 o’clock Folz, who had been working in the pump room, noticed that the drillboat had taken a pronounced list.

He went on deck and found that the two front spuds had jammed, so that that side was not lowering with the tide, but was then from a foot to- 15 inches higher than the back side of the boat. He tried to start the spuds with the engines, but was unsuccessful. He then called Murphy, and they worked at the spuds with bars, but with no better success. As the tide continued to ebb, the boat tilted more and more. Attached to the drillboat were two scows carrying dynamite, a yawlboat, and a rowboat.

About 1 -45 a. m., -finding that the drillboat was sliding and about to tip over, they jumped upon one of the dynamite scows. One of the two ropes which held the scows to the drillboat, being entangled with the fenders hanging over the side of the drillboat and it being dark, they cut, and the other parted when the drillboat tipped over. There were plenty of oars for the yawlboat and the rowboat on the deck of .the drillboat, but they were washed overboard before the men took to the scows, and there was only one oar in the yawlboat.

The scows and yawlboat with the men drifted on the outgoing tide towards the lower harbor until about 3:30 a. m., when they were picked up by the tug Sadie Ross and were slowly hauled up past the sunken drill-boat No. 4 to drillboat No. 8, belonging to the dredge company, and which was located about 6,400 feet further up the harbor. As they came past drillboat No. 4, it would have been entirely feasible for them to have stopped and anchored the yawlboat to the sunken drill-boat, whose sand-pipes were then extending out of the water some 3 and 6 feet, respectively, and thus have marked it as a warning.

This., however, was not done. They reached drillboat No. 8 at about 5:30 a. m. About 6 a. m. a Boston police boat called at drillboat No. 8 and inquired if the men who had been adrift were there, and on receiving an affirmative answer left, without being told of the wreck or asked to mark it.

About 6:15 or 6:20 the day crew of No. 4 arrived at drillboat No. 8, with Hancock, the foreman of No. 4, and after making observations of the wreck, and seeing that the sand pipes were projecting out of the water, as he thought some 2y2 and 5 or 6 feet, Hancock went ashore with the men, including Folz, to find Superintendent Williams. While they were ashore looking for Mr.-Williams, the steamship Massachusetts .came in from New York and at about 8:18 ran into the wreck, which was then submerged. In considering the right of the dredge company to a limitation of its liability under

section 4283, it is necessary to determine whether its drillboat No-. 4 was a vessel, as defined in

section 4289, as amended by Act June 19, 1886, c. 421, § 4, 24 Stat. 80 (Comp. St. _§ 8027). The word “vessel,” as there defined, applies “to all seagoing vessels, and also to all vessels used on lakes or rivers in inland navigation, including canal boats, barges and lighters,” and has been held to include a barge without motive power used for transporting excursion parties (In re Myers Excursion & Navigation Co. [D. C.] 57 Fed. 240; The Republic, 61 Fed. 109, 9 C. C. A. 386); a mud scow used in Boston Harbor for moving mud (In re Eastern Dredging Co. [D.

C.] 138 Fed. 942); a scow originally constructed and used for carrying stone, and later provided with a derrick and used for raising stone (The Sunbeam, 195 Fed. 468, 115 C. C. A. 370); and a scow carrying a pile driver permanently attached thereto (In re Sanford Ross [D. C.] 196 Fed. 921, Id., 204 Fed. 248, 122 C. C. A. 516). Revised Statutes, § 3 (Comp. St. § 3), defines what craft are vessels for the purposes of the maritime law, and in In re Eastern Dredging Co. (D.

C.) 138 Fed. 942, 944, it was held that “all craft which are vessels for the purposes of the maritime law are vessels within the intent of the act as it now stands,” meaning within the intent of the act of 1851 (sections 4283-4289) as amended in 1886. In the case of Charles Barnes Co. v. One Dredgeboat (D. C.) 169 Fed. 895, Judge Cochran, after an extended review of the cases in an endeavor to ascertain what was a vessel within the meaning of

section 3, held that a navigable structure, intended for the transportation oí a permanent cargo, and that had to be towed in order to navigate was a vessel. The vessel there in question was a pumpboat. It consisted of a floating structure, equipped with an engine, boiler, pumps,- pipes, and capstans, which were permanently attached, and it was used for pumping out coal barges.

Drillboat No. 4 was a navigable structure having a permanent cargo, viz. its engines, boiler, drilling machinery, etc., which it transported from place to place for the purpose of removing ledges in navigable waters and as an aid to commerce and navigation. It was not a floating dry dock intended to be permanently moored, as was the case in Cope v. Vallette Dry Dock Co., 119 U. S. 625, 7 Sup. Ct. 336, 30 L. Ed. 501; but was intended and used for the transportation of a cargo which it carried from place to place to ,remove ledges.

We are therefore of the opinion that it was a vessel, within the meaning of sections 4283-4289, as construed in the cases above cited. We also think that the drillboat, by being temporarily sunk, did not cease to be a vessel, and that the dredge company is not tó be deprived of the benefit of the provisions of

section 4283, provided the fault that caused the collision was without its privity or knowledge, or that of its general manager, Williams. In the Sanford Ross (D. C.) 196 Fed. 921, 926, an accident-occurred on a scow fitted out as a pile driver while it was resting upon the bottom at low tide, and it was held that the scow did not lose its character of a vessel by being grounded temporarily, as it was the intention that it should be towed before proceeding to the next position for driving piles. In the District Court the dredge company’s claim for a limitation of liability was denied upon the grounds:

(1) That the drillboat, at the time it was sunk, was improperly manned, in that neither Folz nor Murphy were men fitted to exercise, under conditions which .might reasonably be foreseen, prudent and careful seamanship, and was therefore unseaworthy; that this fault was attributable to the petitioner personally, and was the cause of the accident, as Folz and Murphy, whose duty it was to take steps, after the sinking, to warn other vessels of the wreck, failed to do so because of their incompetency; and (2) that Act March 3, 1899, c. 425, § 15, 30 Stat. 1152 (Comp. St. § 9920), as construed in the Anna M.

Fahy, 153 Fed. 866, 83 C. C. A. 48, in The Macy, 170 Fed. 930, 96 C. C. A. 146, in Weisshaar v. Kimball S. S. Co., 128 Fed. 397, 402, 63 C. C. A. 139, 65 L. R. A. 84, and in J. Smith & Sons, Inc., 193 Fed. 395, 113 C. C. A. 391, made it the personal duty of “the owner of such sunken craft to immediately mark it,” and that this duty could not be delegated, so as to relieve the owner from responsibility.

In holding the dredge company liable on this ground, the court evidently assumed that, inasmuch as Williams was the general superintendent of the petitioner’s operations around Boston and the petitioner was a corporation, the privity or knowledge of Williams was the privity or knowledge of the petitioner, - for -it found “that Williams was informed that the drillboat had sunk early enough so that, if he had sharply set about marking the wreck, he could have done so before the collision,” and that his negligent and unexcused failure to do so was a disregard of the statutory duty and attributable to the petitioner personally.

We agree with the court below that, inasmuch as Williams had the general control and direction of the company’s business at Boston, his privity or knowledge was the privity or knowledge of the corporation. Craig v. Continental Ins. Co., 141 U. S. 638, 646, 12 Sup. Ct. 97, 35 L. Ed. 886; Oregon Round Lumber Co. v. Portland & Asiatic S. S. Co. (D. C.) 162 Fed. 912; The Erie Lighter (D. C.) 250 Fed. 490, 494.

But we do not think that the evidence warrants the finding that he was informed of the sinking of the drillboat sufficiently early, so that he could-reasonably have been expected to have marked the wreck before the collision occurred. The collision occurred July 5, 1913, not later than 8:18 a. m., and the evidence was that Mr.

Williams was not informed of the sinking of the drillboat until 7:30 that morning, when he was found by Hancock at the Atlantic works, some three miles or more distant from the wreck, and that, upon procuring a launch, he and Hancock started for tire wreck, and while on their way passed the Massachusetts going to her dock in Boston Harbor.

The collision had then taken place, and we do not think it could reasonably be found that he had a sufficient opportunity to mark the wreck after he knew that the drillboat was sunk and before the accident occurred. * The statute of 1899 is a criminal statute, and the failure of duty on the part of the owner of a vessel sunk in navigable waters there penalized is failure to mark the wreck after knowledge of the fact necessitating the performance' of the duty; and the duty there imposed upon the owner as a basis for civil liability cannot be greater and will not arise until after knowledge that the vessel is a wreck.

This is the construction placed upon the statute in The Fahy and other cases- above cited. The act of 1899, therefore, is not, as has been suggested, in conflict with

section 4283, but in harmony with its provisions, for the duty imposed on the owner is a personal one. Was it the duty of the petitioner to see that the drillboat was manned with men fitted to exercise, under conditions which might reasonably be foreseen, prudent and careful seamanship, and does the evidence disclose that Folz and Murphy, by previous training and experience, were incompetent, or that Hancock, the foreman, was likewise incompetent and that this was known, or ought to have been known to Williams?

If there was a duty cast upon the owner to see that the drillboat was properly manned, it did not arise' out- of a contract relation, for there was no contract between the dredge company and the steamship company. The duty therefore arose, if at -all, out of some other relationship of the parties, and was one imposed by law due to that relationship. The law govefnin-g actions for negligence has for its foundation the rule of reasonable conduct. That rule has to do with one’s acts with reference tó the person, property, or rights of another. It is a rule of relation.

If there be no relation, there is nothing upon which the rule can operate. But when one knows or has reason to believe his conduct may affect injuriously the person or property of another, then a duty arises requiring him to exercise reasonable care to see that his acts do not result injuriously to the person or property of that other.

So, when the dredge company located its drillboat on the ledge in the channel in Boston Harbor, knowing, as it must, that ships would be navigating in that locality and that accidents were liable to occur, in case it sank, if it was not marked in a suitable manner, the law imposed upon it the duty of manning the drillboat with men charged with the duty of marking the wreck and reasonably competent to perform that duty.

In the District Court it was found that Folz, Murphy, and Hancock were all thoroughly competent men for the operation of drillboats, but that none of them appeared to have been competent seamen, or to have had any general knowledge of vessels or the proper management of them.

The evidence shows that Hancock, at the time of the accident, had been engaged for 25 or 28 years in the handling of drillboats; that he helped to build drillboat No. 4 in 1907 or 1908, and “bring her out”— probably meaning bring her from the Great Lakes to Boston — and that he had been the foreman of her most of the time since; that he knew that the act of 1899 required the owner of sunken wrecks to mark them; and that he would have done so at the time he observed the wreck, had he not thought that the two sand pipes, which were about 6 inches in diameter and protruded out of the water 2% and 5 or 6 feet, respectively, at the time he observed them, sufficiently marked it.

Hancock had worked in Boston Harbor on this drillboat since October, 1911, a period of nearly 2 years. He knew that the mean rise of the tide in that locality was then about 9% feet, and, if his testimony is to be believed, his judgment was, on observing the wreck, that it would not rise sufficiently to cover and obscure the protruding sand pipes.

He no doubt was wrong in entertaining this idea, and was negligent in acting upon it .without marking the wreck; but it is difficult to believe that the petitioner should be held personally at fault for putting him in charge of the drillboat, in view of his long experience and his knowledge of what it was necessary to do in case the drillboat sank, and we think that it cannot fairly be said that he was incompetent, or that the petitioner or Williams ought reasonably to have known that he was.

As to Folz and Murphy, the evidence was that Murphy’s duty was to run the boiler to keep up steam for the engines; that he was a marine fireman with 11% years’ experience, and had a license; that he had been employed on drillboat No. 4 for 8 months, and that he had had much experience the past 11 years in going to sea, during which time he acted as fireman.

He had never been instructed to mark the drillboat in case it sank, and he did not know that the owner of a sunken vessel was required to mark it, and it would seem that it was not reasonably necessary that he should have known or been so instructed, as his work was that of an engineer. The duty of placing warning signals, to the extent at least of hanging out lights, devolved upon Folz, who was required, when he came on duty at night, to light all the lights and hang them out at both ends of the drillboat and look after the spuds.

Folz had worked on drillboats for 5 or 6 years, and on this boat since some time in 1911. When the drillboat was in operation, he had to do with the blasting1 of the holes that were drilled, and when it was not in operation he worked as a watchman.

He testified that he knew the owners of vessels sunk in navigable waters were required to mark them, but that he had never been instructed by the foreman or any one representing the dredge company to mark the drillboat in case she sank, and Williams testified that he had never instructed his men, in the event of the drillboat sinking, to mark it, although that duty would devolve upon him, if any instructions were necessary. Folz’s testimony also shows that from about 5:30 to 6:30 on the morning of the accident he had ample opportunity to mark the wreck and means at hand with which to do it.

He then knew that the tide was rising, or was about to rise, but what he knew as to the mean rise of the tide did not appear. It is as probable that he did not know what the mean rise of the tide was as that he did, and that he had no means of judging whether it would rise and obscure the sand pipes or not. He made no effort to mark the wreck or to have any one else mark it. He could have asked the police boat at 6 a. m. to^ do so if he had understood it was his duty to have it done, but he did not.

In view of his conduct-at the time, and of the fact that no one representing the company had told him that it was his duty, to mark the boat in case she sank, or how to do it, we think it is more probable than otherwise that he did not regard it as his duty, and for this reason omitted marking her. As due care on the part of the dredge company or its general manager, Williams, required that it should have directed Folz to see that the boat was marked in case she sank, and it failed to do so, its failure in this respect was the cause of the collision, and was a fault for which it was chargeable personally.

It is contended that the dredge company had no reason to anticipate that the drillboat might sink, and therefore it was not called upon to instruct Folz what to do in such a contingency; but, as it was generally known that vessels in encountering the perils of the sea were liable to be sunk, and also known that drillboats and dredges, supported by spuds, when subjected to like perils, had sunk, we think it was bound to have foreseen that such a situation might arise, and that it should have instructed Folz with reference thereto.

The burden was upon the dredge company to show that it exercised reasonable care and diligence to see that the drillboat was manned with competent men. The Carib Prince, 170 U. S. 655, 18 Sup. Ct. 753, 42 L. Ed. 1183; The Wildcroft, 201 U. S. 378, 388, 26 Sup. Ct. 467, 50 L. Ed. 794; International Navigation Co. v. Farr, etc., Mfg. Co., 181 U. S. 218, 225, 226, 21 Sup. Ct. 591, 45 L. Ed. 830.

In recognition of this, the dredge company, in its petition, .alleged as follows : “At the time of the sinking of the said drillboat No. 4, the same was in every way seaworthy and fit and proper for the uses for which it was built and used, and that its appliances were in good condition, it had on board a sufficient number of competent men, and that the said sinking of the said drillboat No. 4 and the collision with the same by the said steamer Massachusetts, were occasioned or incurred without the privity or knowledge of this X)etitioner.” It failed to sustain the burden of this allegation.

The dredge company also complains that the District Court erred in its allowance of interest on the damages awarded for loss of property from the date of the collision, on the sums paid for repairs from the dates of payment, and on demurrage from the time when the damages were liquidated. The allowance of interest in cases of this kind rests in the discretion of the court. The Albert Dumois, 177 U. S. 240, 255, 20 Sup. Ct. 595, 44 L. Ed. 751; The Scotland, 118 U. S. 507, 518, 6 Sup. Ct. 1174, 30 L. Ed. 153; Straker v. Hartland, 2 H. & M. 570, 575; Frazer v. Bigelow Carpet Co., 141 Mass. 126, 4 N.

E. 620; The Rabboni (D. C.) 53 Fed. 948, 952. Complete restoration required the payment of interest. Judge Hazel, in discussing the question of the allowance of interest in collision cases in The Gilchrist (D. C.) 173 Fed. 666, at page 672, said: “'On the settlement of final decree the question arose whether interest on demurrage should properly be allowed from the date of loss, as specified in the stipulation filed herein, or from the entry of decree. Heretofore this court apparently held in The Sitka [D. C.] 156 Fed. 427, on the authority of The Eloina [D.

C.] 4 Fed. 573, that interest on demurrage was only recoverable from the date of decree, and not from the date of loss or injury. But this broad holding is not sustained by the weight of prior decisions.

Collision cases are now called to my attention by which it is clearly shown that, not only is demurrage a proper element of damage, but that interest should he allowed from the time of collision, unless in the discretion of the court there are special reasons for its disallowance.” The dredge company further contends that the court below erred in allowing taxation of mileage for one Colbath, a witness for the steamship company, from New York City to the place of trial, although his domicile or home was in Melrose, Mass. The taxation was in accordance with the previous rulings of this court.

City of Augusta, 80 Fed. 297, 304, 25 C. C. A. 430; United States v. Sanborn (C. C.) 28 Fed. 299; The Governor Ames, 187 Fed. 40, 50, 109 C. C. A. 94. In view of the conclusion here reached, the questions sought to be raised in No. 1354 become immaterial and are not considered. In No. 1355 the decree of the District Court is affirmed, with interest and costs to the appellee; in No. 1354, the appeal is dismissed without costs.