New York & Cuba Mail S. S. Co. v. United States

HOUGH, Circuit Judge

(after stating the facts as above).

Yiewed under the “pier end” statute, we cannot think this ease one of legal difficulty. The construction of that act was settled in The Chauneey M. Depew, 139 F. 236, 71 C. C. A. 362, holding that, while the statute did not govern the right of recovery in admiralty, the regulation was within the power of the state, and the violation thereof was a fault; wherefore, if that fault contributed to the collision, liability arose.

Under that ruling the inquiry (once the fact of lying at the pier is established) is one of fact only, viz.: Was lying in the prohibited position a contributing cause of damage? If it was not a contributing cause, no liability arises; if it contributed, but the other vessel also contributed, it is a case of divided damages; and if lying at the pier end is mere condition, and not a cause, the offender against the statute may recover in' full. We consider the doctrine perfectly illustrated by a comparison of The Daniel McAllister, 258 F. 549, 169 C. C. A. 489. The New York Central No. 18, 257 F. 405, 168 C. C. A. 445, and The Lady of Gaspe (C. C. A.) 276 F. 900.

Applying the foregoing to the facts above stated, a majority of the court is of opinion that the presence of No. 20 at the end of Pier 15 was not a contributing cause to the damages by her received. The act of the Suwie'd in landing without any warning to the No. 20, and under circumstances of danger contemporaneously appreciated by her own navigators, was the sole effective or contributing cause of disaster.

We agree with the court below, however, that the same result cannot be reached in the ease of the Support, because that barge is owned by the Steamship Company, agent of the owner of the Suwied. The agency agreement required the Steamship Company to supply the entire crew of the vessel and to manage the craft in every way.

It has not been claimed by the United States, and is vehemently denied by the Steamship "Company, that this agency agreement makes it responsible for the careless navigation of navigators by it selected, and it is indeed-a serious matter to hold responsible for the navigation of a vessel the agent who procured the navigators. We. are not required, and therefore not permitted, to consider the larger possible aspect of the matter. We do not now hold that by virtue of the agency agreement Steamship Company became responsible for the navigation of the Suwied. But there can be no doubt that the chief stevedore on Pier 15 was a subagent, and. therefore by the explicit terms of the contract his acts are to be considered the agent’s acts.

In this ease we have found the fact to be that this stevedore in charge of the pier exercised his authority — i. e., the Steamship Company’s authority — to order the Suwied alongside the pier. In obeying the command of its owner’s agent the vessel injured the agent’s property. The agent — i. e., Steamship Company — in the person of its chief stevedore committed a tort. For the consequences of that tort it is on familiar principles liable to the owner of No. 20, but on equally familiar principles the tort-feasor cannot recover from his principal his own loss caused by a tort he himself committed.

The decrees appealed from are modified, so as to permit recovery by Flannery, ete., Inc., for the damage to No. 20, recovery to be against both the Steamship Company and *350tbe United States, and execution to issue in tbe first instance against the Steamship Company only. In tbe matter of tbe Support, tbe decree below is affirmed. Costs of this court to Flannery, etc., Inc., only.