consigned to any vessel by the furnishers, but to the owner, as had been the practice for years. In the case of coal, food, and culinary supplies, these were stored by the owner at its factory. Their arrival there was not a mere arrest or stoppage in transitu, but, so far as their delivery is concerned, they had reached their final destination. If the goods are furnished to the vessel in good faith, the materialman is not answerable for their misapplication. The H. B. Foster, supra. If not furnished to the vessel, their subsequent use thereon will not create a lien, as the furnisher's right to a lien arises, if at all, from what occurred at the time the supplies were ordered or furnished, not from what may have been subsequently done in regard thereto. It was not because the vessel was away from her supply port and under necessity of immediate provisioning that any of these goods were ordered or furnished. They were ordered on the owner's general order to be held in store for use at its convenience, as its business should subsquently require. In the case of the seine and parts of the fishing tackle furnished by the Thread Company, these articles, from their very character, as before noted, carry the intelligence that they were probably for use on a fishing boat. Does this distinction entitle them to a lien? On the hearing I was rather impressed that it did, but further reflection has convinced me that the distinction is not controlling. The evidence establishes that in the sale of these goods, as well as in the sale of the goods embraced in the King and Coal Company's libels, none of these libelants considered this steamer, or any other vessel for that matter, as a factor in accepting the orders or in the delivery of said supplies, but that the Fertilizer Company, one of their old and up to that time reliable customers, alone was considered in those transactions, and that said commodities were furnished to it, and it alone, and on its sole credit. The claim of the Thread Company for parts of fishing tackle is similar to that of Atwood's for a "net-lifter,' denied a lien in The Bethulia (D. C.) 200 Fed. 877. This net-lifter was for use on a fishing vessel. It was purchased by the Boston Fisheries Company, the owners of the Bethulia, and on the order of Atwood was forwarded to it direct from the manufacturers. This machine was subsequently installed on said vessel. The owners of that vesssel had previously purchased a machine from Atwood, which it used on another of the company's vessels. The district court in that case laid stress on the facts that this lifter had not been ordered specifically for the Bethulia, nor delivered to that particular vessel. [2] By the general maritime law before the act of 1910, when supplies were ordered for a vessel by the owner, in the absence of evidence showing that they were furnished on the credit of the vessel, the presumption was that they were sold on the credit of the owner, and a lien was denied. The St. Jago de Cuba, 9 Wheat. (22 U. S.) 409, 416, 417, 6 L. Ed. 122; The Valencia, 165 Ú. S. 264, 271, 17 Sup. Ct. 323, 41 L. Ed. 710; Prince v. Ogdensburg Transit Co. (C. C.) 107 Fed. 978; New York Trust Co. v. Bermuda-Atlantic S. S. Co. (D. C.) 211 Fed. 989,999. For other cases, see note 46, 26 Cyc. 778. By this act, when the supplies are furnished to the vessel on the order of the owner or his authorized agent, this presumption is nullified, and a prima facie lien is given. When, however, as in the instant case, the evidence discloses that no vessel was mentioned in the ordering, shipping, or billing of the goods; that they did not reach the libeled vessel as a part of the transportation begun by the vendor; that the circumstances attending said furnishing in no respect differed from the course of dealing between these libelants and the Fertilizer Company carried on for many years; that the said company was carrying on a business in which vessels were but one kind or class of instrumentalities used in its promotion; that at no time was a vessel named as the recipient of said supplies by either said company or the shipper, and that the vendor had heretofore always looked to that company for payment-the furnishing of the supplies embraced in these libels must be held to be commonlaw sales and deliveries, made on the sole credit of the vendor, and not maritime contracts, for which a lien is given by the act of 1910. The exceptions are sustained, and the libels of the Pennsylvania Coal & Coke Company, Wm. King & Co., and the Linen Thread Company are dismissed, with costs. [3,4] As to the contention of Wm. King & Co. that the Pusey & Jones Company and some of the other libelants cannot have a lien for repairs, etc., made before the year 1915, it is sufficient to say, first, that laches is not raised by the pleadings; and, second, that, as the proceeds of the sale of this steamer are insufficient to pay the uncontested liens, such a challenge can be made only by one who has a maritime lien on said vessel. THE PROCIDA. (District Court, S. D. New York. March 3, 1917.) 1. COLLISION 95(2)-VESSEL IN TOW-FAULT OF TUGS. Three tugs were engaged in taking a steamship from dry dock in Erie Basin to a berth outside. In passing from the basin, one was in the lead with a hawser, another was made fast to a quarter, and the third, for the proper execution of the maneuver, should have acted as rudder by hanging to the stern with a line until the ship had passed through the entrance, but, instead of doing so, it made fast by three lines to the other quarter, and the ship, having no motive power of her own at the time, came into collision with some barges alongside another vessel. Held, on the evidence, that the third tug alone was in fault, and liable for the collision. [Ed. Note. For other cases, see Collision, Cent. Dig. §§ 200-202.] 2. COLLISION 16-TUGS CO-OPERATING IN HANDLING TOW-DUTIES. When several tugs are co-operating in the movement of a ship, it is the duty of each to obey the orders of the one in control of the operation, and to assume that the others will render proper assistance. [Ed. Note. For other cases, see Collision, Cent. Dig. § 15.] 3. COLLISION 115-LIABILITY OF TOWING CONTRACTOR FOR NEGLIGENCE. While tugs are liable in tort for a collision through their fault, by which their tow is injured, the contractor, who has undertaken to render For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the service, may also be liable personally for failure to properly perform his contract. [Ed. Note. For other cases, see Collision, Cent. Dig. §§ 244-247.] 4. COLLISION 115-INJURY TO TOW-LIABILITY-MASTER OF TUG ACTING AS PILOT. Respondent contracted to move a steamship from one berth to another, and for the purpose used one tug owned by him and two which he hired. The operation was under the direction of the master of his own tug, who, as customary in the port, also went on board the ship and acted as pilot, for which he was paid $5 by the ship. Through his negligence and the fault of one of the hired tugs there was a collision, in which the ship was injured. Held, that the fact that the ship was required to have a pilot did not make such pilot her agent, in such sense as to relieve respondent of liability for his negligence. [Ed. Note. For other cases, see Collision, Cent. Dig. §§ 244-247.] In Admiralty. Suit by the Navigazione Generale Italiana against Edward M. Timmins and the tugs McCaldin Bros. and Edward G. Murray for collision with the Procida. Decree for libelant against the Murray and respondent Timmins. The libel is for a collision between the Procida, while in tow of three tugs, and certain barges alongside the steamer Winnebago in the Erie Basin. The Procida had been in dry dock and was without steam; she wished to go to her berth in the North River, and for that purpose she called up the respondent Timmins and asked to be taken by tugs from the Basin to her destination. Timmins sent his own tug, the J. J. Timmins, and hired the McCaldin Bros. and the Edward G. Murray, each belonging to another owner. On arriving. Keene, the captain of the J. J. Timmins, ordered the Murray to put a line on the Procida's stern and pull her out into the Basin, and then to come alongside on the port quarter, either after the Procida had left the Basin or as soon as she was pulled out into the Basin (which of these was the order is in dispute). Keene next made his own tug fast to the starboard quarter of the Procida and went on the bridge. The Murray pulled the Procida out stern first, till she was about 125 feet clear of the dry dock, and then straightened her out to be pulled through the mouth or Gap of the Basin to the river. Keene then ordered the McCaldin Bros. to lead the flotilla with a hawser, which she did, being at the time of the collision the only vessel under way. At some period not altogether certain, but a substantial time before the collision, the Murray came alongside the Procida on her port quarter and made fast with three lines. Thus, as the flotilla approached the Gap, the McCaldin led and the other two tugs flanked the Procida's quarters. The Winnebago and her outlying barges the Procida would have passed safely to port, except for reasons not altogether clear, necessarily resting, however, in faulty navigation of some kind, because there is no tide in the Basin and the wind was light. Instead of this, the Procida was allowed to sag to port, and touched her port quarter about 150 or 125 feet from her stern, with enough momentum to break in one of her plates and do much damage to her newly installed refrigerating plant. Just before the collision the Murray, seeing herself likely to be crushed between the barges and the Procida, slacked the backing line to the steamer and fell back till the Procida's headway had been stopped. After the collision the Murray resumed her position, and the flotilla passed through the Gap without further accident, where it was met by a fourth tug, with which all vessels went to the Procida's berth in the North River. Keene sent a bill to the steamer for $5 as payment for his services for pilotage on the day in question, and this was paid in addition to $120 charged for the hire of the tugs. It appears that the practice of charging and paying $5 to the captains of tugs, who go upon the bridge of steamers under such For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes conditions as these, is universal in the harbor. If there be a pilot proper on the steamer, no tugboat master goes on the bridge. Homer L. Loomis, of New York City, for the Procida. LEARNED HAND, District Judge (after stating the facts as above). [1] It is the universal testimony in the case that proper navigation under the circumstances was for the Murray to act as rudder for the ship and hang on at the rear on a hawser till the flotilla had. emerged from the Gap. Even Delamater, the Murray's captain, admits this, and gives as his excuse only his orders from Keene. The failure to observe this method was the direct cause of the collision, and in my judgment the sole cause, and those tugs which shared in it are certainly at fault. The Murray's fault is the most obvious, because she was clearly out of position, as her own master concedes. Her excuse is twofold-that she acted under orders, and that the fault was that of McCaldin Bros. As to the first, she had no right to surrender herself to improper orders, and she is liable in tort if she did. The Anthracite, 168 Fed. 693, 94 C. C. A. 179. She might, it is true, have remained in a position where she could have nosed off the Procida, if need arose; but she could not do this with three lines out, and I can therefore see no excuse for her. the [2] The McCaldin Bros. was not at fault. Her hard astarboard wheel is complained of, but I think unjustly. She allowed the bows of the Procida to come very close, perhaps too close, to Beard's Stores before she changed her wheel; but that was not her fault. It cannot, of course, be possible for each tug to use her own discretion, or the whole command disappears. When she did starboard, she starboarded hard, which was all she could have done. Though it was obvious then, as Howe concedes, that the Murray must nose off the stem, he had the right to assume that the Murray would do so. It would violate very foundation of good seamanship for the McCaldin Bros., by speculating on her own account, to vary from the orders received. The only possible liability is from entering the maneuver with the Murray in the wrong position. As to that, I think that it has not been proved that, when the McCaldin Bros. started ahead on the hawser, the Murray was already alongside the Procida. The Murray's mate says that was after the flotilla was under way. If so, I do not think a tug is at fault which, though she is herself in proper position, fails to stop a maneuver of which she has no charge or direction, because she sees that another tug has changed to an improper position. Obviously this would be impossible under most circumstances, because it would be much more dangerous to abandon the maneuver already under way than to go on. While I am not sure that the McCaldin Bros. could not have stopped without danger, I am not sure that she could. It can only be in the clearest case that a tug is bound to break up such a maneuver once started. No doubt, instances can be put where that would be her duty; but I do not think that this is one. It always remained possible for Keene to direct the Murray to nose away the stem if it became necessary. There is no evidence that Howe saw that the Murray had out three lines. The position of the Murray was not so obviously perilous to the Procida as to call for such extreme conduct. Therefore I find the McCaldin Bros. without fault. [3] The liability of the tug J. J. Timmins needs no consideration. Not only was she not at fault in any respect, being where she should have been, doing all that was required of her; but she has not even been sued. The libel is against Edward M. Timmins personally, and he has not yet limited his liability. While the liability of the tugs in such a case is in tort, and they must be found at fault (The W. G. Mason, 142 Fed. 913, 918, 74 C. C. A. 83), Timmins personally undertook to perform the towage service for the Procida, and his personal liability, whether it sounds in contract or in tort, does not depend upon the misconduct of his tug, taken as a mere instrument of navigation. That liability-the question of limitation may await its exercisedepends, first, upon whether Keene performed the obligation undertaken by Timmins to transport the Procida safely from berth to berth; and, second, whether his negligence, if any, in that performance, may be imputed to Timmins. As to Keene's personal fault, I think it is proved, whether he ordered the Murray to go alongside inside or outside the basin. If he ordered her to go alongside while she was still inside the basin, no more need be said; if he did not, he was liable for failing to enforce his orders. On his own statement, he knew that the Murray was alongside for some time before the collision occurred, long enough to make use of her. The evidence is not contradicted that she came alongside soon after the McCaldin Bros. began to tow; just when it is quite impossible to tell. Salvadori's testimony, on which Mr. Clark relies to show that her change of position was a surprise, refers to her slacking off and falling back at the moment of collision. She had had time to put out two added lines and take in her original towing line, and she must have been alongside, in my judgment, at least five minutes. The most reasonable assumption is that, as soon as she finished towing, she turned about and came up, and, as the motion of the Procida was at all times very slow, it is apparent that she must have got there a substantial time before the flotilla reached the Gap. Of course, she did not start behind as a rudder, and change her mind in the midst of affairs and come up. Whether she followed orders, or mistook orders, she meant always to go alongside at once, and that she did. This being assumed, it follows that Keene was not keeping a watch upon his vessels, or he would have seen her in season, assuming he did not. Nothing prevented his stopping the McCaldin Bros., and, if necessary, stopping the Procida, too, until the Murray took her right place. His failure strongly suggests that he had ordered her there at the outset, as does the fact that she resumed her position after the collision, but before the flotilla had passed the Gap. His judgment to allow her to continue her position was not in extremis; the wind was light, there was no tide, the Procida's motion was very slow, and there was no other shipping in motion; he had ample time and space. |