The E. S. Atwood

HOUGH, Circuit Judge (after stating the facts as above). We pass to consideration of the navigation of the Atwood, without deeming it necessary to comment on certain claims made by appellant United States concerning the alleged undermanning of the Atwood and the personal habits of her master. There is nothing in these suggestions. [739] The outstanding fact about this collision is that it occurred on a night when no difficulty of navigation is suggested, between a tow in charge of a full-powered tug and a vessel at anchor. The very fact that such a collision occurred puts a very serious burden of explanation upon the tug in charge. Indeed, it has been said that the vessel producing such a collision is “presumptively at fault.” The Gulf of Mexico (C. C. A.) 281 Fed. 77. It may be admitted, as correctly found by the court below, that the No. 7 steered wretchedly, and owing to her. size and weight she manifested this vice almost as much with the Alfred alongside as she did before. But the truer all this is, the plainer it was; and since the Atwood had undertaken to tow a vessel scarcely fit to steer, it was incumbent upon her the more carefully to guard her helpless tow against the consequence of its own vices. The Atwood had plenty of time to observe the habits of No. 7 and to see that the Alfred was unable to correct them. Thus the duty of the Atwood was measured, not by what she might have expected from a properly built and handily steering tow, but from a tow known to be clumsy and perhaps at times unmanageable. The explanation given by the Atwood and quoted in the statement prefixed to this opinion is in our judgment sufficient to condemn the Atwood’s navigation. On the course indicated (however sketchily) by her master, the Atwood, with the Amphitrite on her port bow, had but to go to starboard to leave that vessel safely behind on her way to the guardship. Apparently at the very moment of learning that the Amphitrite was not the guardship the No. 7 was seen to sheer to starboard; i. e., to the westward, and therefore-away from the Amphitrite. Thereupon the Atwood ported her own wheel, and yet No. 7 lodged on the Amphitrite’s ram bow, with the latter vessel heading north. It is not too much to say that this story is an impossibility; collision could not have happened as thus stated and to put the tale in this manner indicated considerable perturbation of mind. In our judgment the Atwood miscalculated the ebb tide, went too near the Amphitrite for safety in and with the tide, suddenly found herself in a situation from which there was no escape, and has fallen back on the bad steering of No. 7 for an excuse. We think the excuse has not even the merit of plausibility. The value of the Atwood must therefore be devoted to the payment of these claims. No fault is alleged or proven against the Alfred, and the inability of No. 7 to steer not being the result of any bad management, and being known, cannot be used for dividing or otherwise reducing liability. Dalzell & Go., Inc., are bound by their contract. If they had done no more than engage to tow or furnish towboats, they would fall within The Ice King (C. C. A.) 261 Fed. 897. But the contract went much further, for by it the contracting corporation agreed to be answerable for all damages from collision arising through negligence on the part of its employees, and the master of the Atwood was such employee. We think this a clear case for the application of Pendleton v. Benner Line, 246 U. S. 353, 38 Sup. Ct 330, 62 L. Ed. 770, and Luckenbach v. McCahan, 248 U. S. 139, 39 Sup. Ct. 53, 63 L. Ed. [740] 170, 1 A. L. R. 1522. Consequently the petition of the charterer must be denied, on the ground that it is bound by its personal engagement. No reason is seen why the owners of the Atwood cannot limit their liability against (so to speak) the consequences of the negligence of their charterer’s servant. They made no engagement with the government, and had no other contract outstanding (so far as shown) at the time of disaster, except one with the charterer. We think this part of the case ruled by Richardson v. Harmon, 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110, as explained and applied in The Soerstad (D. C.) 257 Fed. 130. It may be admitted as true that the chartering and contracting corporation is but an arrangement, perhaps even a “family arrangement,” by which the management of vessels having many owners in common is put in charge of a corporation composed of selected business men from among the whole mass of owners. This is a lawful method of doing business, tainted with no fraud. The contract in evidence must be enforced against him that made it, but it affects no one else. It thus appears that the United States has recourse to two funds, whereas the owners and underwriters of the Alfred are confined to one. It follows that, before coming upon the fund derived from the value of the Atwood, the United States must exhaust its remedy against Dalzell & Co., Inc. Decree reversed, with one bill of costs to the appellants against Dalzell & Co., Inc., and the cause remanded to the District Court, with directions to proceed with the limitation petition in a manner not inconsistent with the foregoing opinion.