Does an owner of a barge breach a duty of care, and thereby bear a proportionate share of the resulting damages, when the barge's attendant is absent without excuse during working hours and the barge breaks from her moorings and sinks?

The barge Anna C, owned by Conners Marine Co. and chartered to the Pennsylvania Railroad Company, was moored in a tier of six barges off Pier 52 in the North River, New York Harbor, carrying a cargo of flour owned by the United States. The Grace Line, Inc. directed its chartered tug, the Carroll (owned by Carroll Towing Co.), to remove a barge from a tier at the neighboring Public Pier, which required throwing off a line connecting the two tiers. The Carroll's master put a deckhand and the Grace Line's "harbormaster" aboard the Pier 52 tier to adjust the fasts and cast off the line. They readjusted the fasts to their satisfaction and threw off the line, but when the Carroll backed away, the tier broke adrift because the fasts from the Anna C either rendered or carried away. A strong wind and the ebb tide carried the barges down the river until the Anna C struck a tanker, whose propeller holed her. She careened, dumped her flour, and sank at about 2:15 P.M. The bargee had left the Anna C at 5 P.M. the previous day and had been absent for twenty-one hours without excuse; no one aboard noticed the leak. Two nearby tugs with syphon pumps could have kept her afloat had they known of her condition.

The case arose in admiralty in the district court as a limitation of liability proceeding brought by Carroll Towing Co. and a related libel suit. The limitation decree held Carroll Towing liable to the United States for the lost flour, to the Pennsylvania Railroad for salvage expenses, and to Conners Marine for half the damage to the barge, all subject to limitation. The libel decree held the Grace Line primarily liable for the other half of the barge damage and for any portion not recovered from Carroll because of limitation, and held the Pennsylvania Railroad secondarily liable for the same amount. Carroll Towing and the Pennsylvania Railroad filed assignments of error on appeal to the United States Circuit Court of Appeals for the Second Circuit.

(Hand, J.)

Yes. The Conners Company's barge was unattended without excuse during working hours, which constitutes a failure of care that reduces its recovery for the sinking damages. The decrees are reversed and the case remanded for modification.

The Grace Line is liable for the acts of its harbormaster. He was an employee authorized to pass on the sufficiency of barge fasts, and the Carroll's master deputed him and the deckhand jointly to judge the safety of the Anna C's fasts. Both are equally at fault for the tier breaking adrift. The bargee could not have prevented that, so the Anna C bears no fault for the collision damages and recovers them in full.

The sinking damages are different. Had the bargee been aboard, he would have discovered the hole and summoned the nearby tugs, which could have kept the barge afloat and saved the cargo. No general rule fixes when a bargee's absence is negligent, but the owner's duty to guard against harm from a vessel breaking away is a function of three variables: (1) the probability that she will break away; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions. Liability turns on whether B is less than PL, that is, whether B < PL.

Applied here, the harbor was crowded, barges were constantly being shifted amid wartime haste, and the short January days increased the risk. Given those risks, it was a fair requirement that the Conners Company have a bargee aboard during daylight working hours, unless he had some excuse. His fabricated explanation was affirmative evidence that he had no excuse. The Conners Company was therefore negligent, and recovers only one third of the sinking damages from each of the Carroll Company and the Grace Line.