Sullivan v. P. Sanford Ross, Inc.

HOUGH, Circuit Judge (after stating the facts as above). [1] We agree, with the decision in Eastern Corporations v. Great Lakes, 256 Fed. 497, that the act of Congress above quoted is a criminal statute, and further that the duty of marking a wreck thereby imposed does not arise until the owner receives information that his vessel is sunk. [350] [2] We are also of opinion that the effect of any failure to observe the provisions of this statute raises a presumption of negligence, or, as the matter is sometimes put, a failure to do what the act requires is evidence of negligence; hut it is no more. Thus for civil purposes the act is but declaratory of the general maritime law in this respect. The Plymouth, 225 Fed. 483, 140 C. C. A. 1, and cases cited. [3] Thus the question here is whether respondent has successfully rebutted the presumption or evidence furbished by the bald fact that it did not maintain (in the sense of keeping it burning) a light upon this wreck. A majority of this court are of opinion that the owner’s responsibility is to be measured, not by what might have been done, but by what was actually done, and that the sufficiency of the steps taken are to be judged by what men of reasonable skill and acquainted with the conditions of New York harbor would do under similar circumstances. It is proven without contradiction that the pole or spar to which the lantern was fastened always remained in place; it was sufficient in strength. We find it proven that the lantern rested at least five feet above the surface of the water. Why it went out, and when that occurred, cannot be known. When respondent discovered it -out (at about 10 a. m. February 6th) the oil supply was , ample and the investigating superintendent only “guessed” that the action of the sea had “knocked it out or put it out.” It is suggested in argument that it was negligent to lash the lantern to the pole, because it would thresh with the pole as it rocked in the seaway; but we think that that is exactly what does happen when a lantern is used as a .signal light on a sea-going scow. Nor do we think that waves of sufficient height to quench the light from a lantern 5 feet above the surface of New York harbor are reasonably to be expected. It is also suggested that respondent might have caused its tug to lay by the wreck during the night. We discover no such obligation imposed by the statute, and think that the measure of liability must be the same for all men. Quite probably the respondent corporation might have caused a tug to stand by, but it was under no higher or other duty than a man who had no tug. What was done was performed by a qualified harbor captain of many years’ experience (respondent’s superintendent), and what he did was, first, what a good harbor man would do; and, second, it was sufficient for the purpose, had it not been for waves of most remarkable violence for Red Hook Flats. Finding, therefore, no negligence in the respondent, the decree below is reversed, with costs, and the cause remanded, with instructions to dismiss the libel.