The Sarnia

261 F. 900, 1919 U.S. App. LEXIS 1862

• Court: Court of Appeals for the Second Circuit
• Decided: November 12, 1919
• Docket: No. 7
• Status: Published

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). [1] The form of this decree is wrong. The tug Palmer committed no fault, and when Barrett furnished the Sarnia with a pilot in the person of Capt. Slauer, he did not. thereby promise a maritime lien on his tug for whatever errors Capt. Slauer might commit while standing on the Sarnia’s bridge and managing that steamer with her own steam. The Palmer was as innocent as the Dalzell, -and for the same reasons.

[2] Nor is it a reason for holding the Sarnia that she did not bear the burden of proving her own petition; indeed, that would seem more reason for absolving those parties brought in by said petition. Apart from endeavors to fix secondary liability or “responsibility over,” the object of the fifty-ninth rule in admiralty is to bring in parties to answer the exigency of the libel, not of the petition; and the sole question in this case is whether on the whole evidence the Sarnia overreached by fault on the bridge, or in the engine room, or hoth. It is agreed that libelant has complied with the rule of The L. P. Dayton, 120 U. S. 337, 7 Sup. Ct. 568, 30 L. Ed. 669; alter that, no question of proof burden is here relevant.

[3] As the Sarnia’s bow entered the slip, the pilot, third officer, and a quartermaster were on the bridge, and the first officer on the forecastle head. It is plain that the ship’s bow slowly approached the barge’s side, until when “20 or 30 feet distant,” the first officer “hollered” to the “tugboat captain he was getting close.”

But Capt. Slauer testifies that when distant “60 to 75 feet” from the barge he ordered the engines half astern; they went ahead instead, and thereupon he three times rang them full astern before collision, and before the first officer “hollered”; but there was no stern movement until after contact.

The deck log, written by Sarnia’s third officer, thus records this performance:

“1:59 p. m. Anchor away slow astern.

“2:08. Stop and half speed ahead.

“2:30. Stop off end of Pier 4.

“3:15. Alongside of dock, warping skip into berth, slow speed ahead.

“3:18. Half speed astern, and then full speed astern. Telegraph answering astern, but engines going ahead.

“Telegraph run astern three times successively, and answered from engine room, but no change in engines.”

Much testimony has been taken in the endeavor to show that this story from the bridge, in the making of which record Slauer had no hand, is untrue. It is certainly not refuted by the engine room, whose methods are open to criticism, into the details of which we do not think it profitable to go. We accept the deck’s explanation of collision.

It is finally suggested, in support of the result below, that, admitting errors in the engine room, the pilot’s order astern was too late, and his repetition of signals evidence rather of his own trepidation than persistent disregard by' the engineers of orders given. This explanation lacks testimony to support it, and does require belief in an .agreement between Capt. Slauer and the third officer of the Sarnia (a stranger to him) to falsify the deck log — not to speak of the quartermaster. Such a conspiracy is improbable and unproven.

In our opinion, the sole cause of this collision was the failure of the Sarnia’s engineers to obey orders; and the decree appealed from is modified, hy dismissing the libel against all parties except the Sarnia, against which vessel Barrett and the libelant will severally recover one bill of costs in this court.