that the deckhand might slip and that he was negligent in not allowing sufficient time for cutting the hawser in the light of that possibility.
Precisely when the moment had arrived for cutting the hawser was a question for the master of the Nancy Moran to determine in the exercise of his judgment as an experienced navigator. The narrow line of demarcation between negligent and non-negligent error of judgment is expressed in The Eli B. Conine, 2 Cir., 233 F. 987, at page 988: "Lack of care under the circumstances,' which is negligence, is rarely willful or reckless; it is usually error of judgment. But the converse is not true -- that every error of judgment is negligence. The error must be measured by the standards of conduct and business knowledge furnished by the evidence and by the experience of which even courts can take cognizance without direct testimony. If the error, viewed from that standpoint, is such as would not have been committed by a reasonable man, reasonably skilled in his occupation, it is negligence.' When thus tested, the delay in ordering the cutting of the hawser cannot be considered negligence. The exercise of judgment by the master of the Nancy Moran in determining the exact moment when the order should be given was that of a reasonable man skilled as a mariner. If the deckhand had not slipped and the hawser cut immediately after the order was given, no one could have quarreled with the timeliness of the master's decision. It was only in the light of after events and in the exercise of hindsight that libellant charges the master with negligence.
There remains only the question of whether negligence can be imputed to the Nancy Moran from the fact that her deckhand slipped and fell when he first attempted to cut the hawser. The stern deck of the Nancy Moran was wet from spray thrown over the three foot freeboard by the brisk wind and the pull of the hawser caused by the starboard sheer of the bark gave the Nancy Moran a sharp list to the starboard. There is no evidence to indicate that the deckhand, who had adequate experience or anyone else on board the tug was guilty of any negligent act contributing to his fall. His fall must be regarded as a fortuitous and unexpected event which, although it directly contributed to the accident, cannot form the basis of a compensatory action.
Libellant has not sustained its burden of proving any negligence on the part of respondent which was a contributing factor in the collision. Stevens v. The White City, supra. The libel must therefore be dismissed as against Moran Towing and Transportation Company, Inc., respondent.
I make the following special findings of fact:
1. Libellant Julio Ribeiro Campos, a citizen and resident of the Republic of Portugal, was on April 10, 1943, and still is, owner of the Bark Foz do Douro, of Portuguese registry.
2. Respondent Moran Towing and Transportation Company, Inc., is a corporation existing under the laws of the State of New York, having its office and principal place of business at 17 Battery Place, in the City and State of New York, and was at all times pertinent hereto operator of the Tug Nancy Moran.
3. The Foz do Douro is a steel hulled, four masted bark measuring 260 feet in length by 43 feet in breadth, without motive power of any kind other than her sails. On April 10, 1943 her top-masts were unstepped and her sails furled. She was in all respects seaworthy, properly manned by a Portuguese crew, and properly equipped and supplied. She was heavily loaded, down 13 feet at the bow and 17 feet 3 inches at the stern.
4. The Tug Nancy Moran is a modern diesel electric tow boat with engines of 1000 horsepower capable of a forward speed of at least eleven knots per hour. She is 94 feet long, 22 feet wide and 10 1/2 feet deep.
5. On the afternoon of April 10, 1943, the Foz do Douro was floated by the Nancy Moran and the H. S. Falk from the place where she lay fast aground by the stern on the southern edge of Pea Patch Shoal in the Delaware River off the mouth of the Delaware and Chesapeake Canal.
6. After the Foz do Douro had been floated, the Nancy Moran and the H. S. Falk undertook to tow the bark from the southern edge of the Pea Patch Shoal to a prescribed anchorage nearby.
7. The operation of towing the bark to the anchorage was under the direction of Commander Eugene C. Kelly, a Delaware River pilot, who was on board the bark and acting as her pilot.
8. At the commencement of the towing operation the H. S. Falk, upon orders from Commander Kelly, took a line from the stern of the bark and made it fast to her bow. Shortly after the towing operation began this line was cast off at Kelly's direction. The H. S. Falk did not participate thereafter in the towing operation but continued to follow the bark and was about 500 feet off her stern until after the collision occurred.
9. The Nancy Moran took the Foz do Douro in tow upon a towing hawser approximately 200 feet in length attached to the stern towing bitt of the Nancy Moran and to a bitt on the starboard bow of the Foz do Douro. The course was east southeast.
10. During the entire course of the towage the wind velocity was 28 to 30 miles per hour from the northwest following over the stern quarter of the bark. The tide was flood either at low speed in the northwest direction or at slack.
11. Approximately twenty minutes after the towing operation began the Foz do Douro suddenly sheered to her starboard. The Nancy Moran endeavored to correct the sheer of the bark by porting her rudder and then by increasing her forward speed.
12. The Foz do Douro continued to sheer and ran ahead of the Nancy Moran. The Nancy Moran swung in an are at the end of the taut towing hawser until the stern of the Nancy Moran collided at an angle with the port quarter of the bark about 60 feet from the stern about five minutes after the sheer began, causing damage to the plates of the bark.
13. At all times between the moment the bark began to sheer and the collision the towing hawser was taut and the engine of the Nancy Moran was running ahead.
14. When the stern of the Nancy Moran was approximately 60 feet from the port quarter of the bark, the master of the Nancy Moran ordered her deckhand to cut the towing hawser. The deckhand slipped on the wet steel deck when he swung the axe to cut the hawser. He immediately regained his footing and cut the hawser just at the time or immediately before the tug struck the Foz do Douro. The interval of time between the master's order to cut the hawser and the actual cutting of the hawser was but a few seconds.
15. When the towing hawser was severed the Nancy Moran pulled away sharply from the bark.
16. After the collision and severance of the hawser the Foz do Douro proceeded under her own headway for about ten minutes and maneuvered to a proper anchorage without assistance.
Conclusions of Law.
1. The master of the tug Nancy Moran was not negligent in his determination of the moment when the order to cut the hawser connecting his vessel and the Foz do Douro should be given under the circumstances.
2. The delay in cutting the hawser due to the fall of the deckhand after the order was given was not caused by negligence of the Nancy Moran or of any member of her crew.
3. Libellant has not sustained the burden of proving that the collision of the Nancy Moran and the Foz do Douro was caused to any degree by negligence of the Nancy Moran.
4. The libel should be dismissed as against Moran Towing and Transportation Company, Inc., operator of the Tug Nancy Moran.
© 1992-2004 VersusLaw Inc.