Osterhoudt v. Federal Sugar Refining Co.

L. HAND, Circuit Judge (after stating the facts as above). When a barge moors alongside a pier, she is bound to put out no more lines than are necessary for her own weight. On the other hand, if another barge moors outside of her, she is bound not to overcharge the fasts of the first, and if she does she is liable. Pennsylvania R. R. Co. v. McWilliams, 277 F. 798 (C. C. A. 2); McWilliams v. Davis, 285 F. 312 (C. C. A. 2); The No. 225, 272 F. 130 (D. C. S. D. N. Y.). This duty involves acquainting herself with the size, condition, and number of the lines to the pier, and is not affected by the fact" that the berth is assigned to her, unless she has not sufficient lines- of her own and -protests. Prima facie she is at fault, for the inside barge owes her no duty to strengthen her own position. However, the inside barge may by acquiescence accept the’ situation, and, if so-, she shares the fault. When the Queen Anne made fast alongside the Scully, she was therefore bound to put out such lines to the pier as were necessary to hold her added weight, and in her determination of that question she was charged with notice of the condition of the Scully’s fasts, so far as their appearance disclosed it. The Scully, by allowing her to lie alongside for two weeks without protest, acquiesced in her precautions, and became privy to her fault, if fault there was. The judge held that the Scully’s fasts were unsound, and we see no reason to disturb his finding. That finding depends chiefly on the testimony of the bargee of the Universe, who said that they were ragged and chafed. If their condition was as apparent to the Queen Anne as to the Scully, both were liable; the Scully for using the fasts and acquiescing in the Queen Anne’s dependence upon them, and the Queen Anne for depending upon them. If; on the other hand, their appearance did not disclose their weakness, still the Queen Anne is liable. There is no way to tell, so far as we can see, whether the Scully’s fasts parted before the Queen Anne’s slipped, or vice versa. The Scully’s bargee says that he saw the Queen Anne’s line on the ice before his own parted, and while this seems to us impossible, or nearly, his evidence, so far as it goes, is that the Queen Anne’s line gave first. We cannot see how the contrary can be thought more probable. The barges were made fast together and moved as one, so that the strain may well have been upon all the lines at once; so far as there are any inferences to be made, we should suppose this the more probable conclusion. If so, the Queen Anne’s fast began to slip either before or at the same time when the Scully’s began to part. All would begin to give together. In that ease the failure of the Queen Anne to bend her fast may have contributed to the loss. It is impossible to say how nearly the Scully’s fasts, though unsound, came to carrying the weight of both barges. The added strength of the Queen Anne’s, if well bent, might have held the two. On the other hand, the unsoundness of the Scully’s fasts may have contributed to the loss, because it is impossible to say that they would have carried the weight of both, though reinforced with a well-bent fast of the 'Queen Anne. Since by acquiescence she was responsible for the situation as it existed, she can charge the Queen Anne only for her failure well to bend her line. The situation is such that neither barge can prove that the loss was a result solely of the conduct of the other. It is also such that the libelant cannot prove that the fault of either was necessary to the result;' for aught that appears, either fault might alone have been enough, though the other had not exist [477] ed. However, the ease is not one where the tort-feasors acted independently. On the contrary, they mingled their conduct, and, while it is impossible to disentangle the share of each, each prima facie had a hand in the result. In such eases the injured party may leave it to those whom ho has shown to be apparently jointly involved to unravel the skein of their own making. The Federal Sugar Refining Company is liable because the bargee of the Scully was its servant. Decree modified, by holding the Federal Sugar Refining Company and the Scully liable for half the loss and the Queen Anne for the remainder.