
    John D. Schoonmaker and Jacob Rice, Copartners, Doing Business under the Name and Style of Schoonmaker & Rice, Appellants, v. Henry Steers, Incorporated, Respondent.
    Third Department,
    November 11, 1908.
    Shipping — negligence—-injury to chartered barge — facts raising question for jury.
    Action to recover the value of a barge which sank while chartered to the defendant. By the charter party the defendant was to pay a certain sum per day for the use of the barge for carrying tunnel excavations, while the captain was to be furnished and paid by the owners, it being his duty to care for their interest and to see that the boat was not overloaded and to show persons under contract with the defendant where to place the load, so that it would be evenly distributed. The captain employed by the plaintiffs proved to be drunken and incompetent, and while absent from the work the boat was so loaded by contractors working for the defendant that it broke and sank. There was a conflict of evidence as to whether the defendant had notified the plaintiffs of the absence of the captain, but it was shown that he had been at the plaintiffs’ office during the day. On all the evidence,
    
      Held, that it was for the jury to say whether the defendant had recklessly or negligently permitted the loading of the boat to continue in the absence of the captain, and that a nonsuit was error.
    Smith, P. J., dissented.
    Appeal by the plaintiffs, John D. Schoonmaker and Jacob Rice copartners, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster upon a nonsuit directed by the court after a trial at Trial Term.
    
      Martin A. Ryan, for the appellants.
    
      Charles Thaddeus Terry [Edward Ward McMahon with him on the brief], for the respondent.
   Kellogg, J.:

The plaintiffs’ barge sank at the dock at Long Island City, while under a charter party to the defendant, and they bring this action to recover the value thereof. By the charter party, defendant was to pay ten dollars per day for the use of the boat “To January 1st, 1907, in carrying tunnel excavations in New York harbor and all adjacent waters.” It further provided: One man to act as captain is furnishéd and paid by the owners.” The plaintiffs had hired out various other'boats for similar service, and five other of their barges were under charter to. the defendant for such work. They had been furnishing boats for such service for two years for the predecessors of the defendant on its contracts, which were performed in substantially the same manner. The kind of work and the manner of doing it was evidently understood by both parties.

Upon September first, plaintiffs put a new captain upon this barge, and he' proved to be a tlrunken, incompetent man, although they claim lie' was well recommended to them. It is a disputed question whether the defendant, prior to the accident, notified the plaintiffs of the in competency of the captain. It was the duty of a captain of a barge engaged in this.work to take care of the interests of the owner; to see that proper lines Were upon the -boat; to see that she was not overloaded, and to change the boat from time to time in the slip, and to direct the dumpers where to place the load, and to notify them when to stop on account of the boat, being loaded; while a boat was loading, it was necessary to change her position from time to time so that the load may be evenly distributed, and to tighten and loosen her lines. It was the duty of Breslin, an employee of the defendant, to put the empty boats under the dump, so that they could be loaded. He' then went away, leaving the boat in charge of the captain. The load was dumped upon her by the employees of other contractors. The defendant’s connection with the business of carrying tunnel excavations consisted in bringing the boat up to the dump and putting her in position. The captain then took charge of her and saw that the load was properly placed upon her by the other contractors, and changed her position from time to time as necessary. W hen filled, the captain notified the dumpers, and the boat was removed by the defendant’s .tug. September ¿fifth, the boat was placed under the dump by Breslin, and the captain moored her to the dock and the other contractors began to load her. At ten o’clock in the morning of September seventh Breslin discovered that the captain was absent from the boat and the cabin locked. He returned at two o’clock and found him still absent. He then telephoned to Stavy, the' manager of the defendant, that the captain was off the boat. Stavy swears that he immediately called the plaintiffs’ office on the phone and notified Conners, their manager, that the captain was off the boat and that he should attend to-it. " He said he would attend to it. Conners was recalled by the plaintiffs and was asked this question: Q. Mr. Stavy, one of the witnesses here, testified that he called up the office of Schoonmaker & Bice and had a conversation with you about the absence of the captain on September 7th; did such a conversation take place? Answer: I'have-mo recollection of any conversation with Mr. Stavy on the 7th.” Otherwise there was no denial of the evidence of Stavy Upon that subject. Breslin, about four p. m., again visited the boat and found it in the same condition, without a captain, but in good order and about half loaded. Ho further attention seems to have been paid to the boat by either the plaintiffs or defendant. She sank about twelve o’clock that night. Ten or fifteen minutes before she seemed to be in good condition, and nothing wrong was discovered about her. The captain returned to the boat about five-thirty the morning of the eighth in a drunken condition. Hothing appears of his whereabouts the seventh, except he was seen' about six o’clock in the morning at the corner of Thirty-fourth street and First avenue, Hew York, looking for a drink in a saloon, and borrowed the car fare to go to the office to get his money. He was at the plaintiffs’ office in Hew York about noon and was paid five dollars, which was not all the money due him, about four o’clock. He reported the boat all right and said he was going back to it.

The evidence tends to show that the loss of the boat was probably due to the fact that the other contractors, whose duty it was to dump into the boat, continued the dumping in' the absence of the captain, probably without knowledge of his absence, and by her position not being changed, she became overloaded upon one side, which caused her to list, and by crowding against the pier in the rising tide she was broken and collapsed. So that the real cause of her loss is undoubtedly the incompetency of the captain and his abandoning his duty and leaving the boat subject to the injury which happened to her. I cannot agree with the plaintiffs that the liability of the parties here is that of bailor and bailee, and that it rests with the defendant to account for the injury, for the reason that the charter party contemplated that the boat, while in the service of the defendant, should be under the management and control of a captain selected by the plaintiffs, and if any inference is to be indulged in, it would more naturally follow that the injury came from the incompetence or negligence of such captain. So far as the doctrine of res ipsa loquitur applies it points towards the plaintiffs and their captain. The boat, in a way, was in the defendant’s charge; ic knew that the. plaintiffs had placed over her an incompetent captain, and it knew at ten o’clock, at two o’clock and at four o’clock on the day of the accident that the captain was not on the boat. Plaintiffs also knew that at noon and four o’clock the captain was in New York. The absence of the captain at noon and four o’clock did not necessarily show that he was not performing his duties, because if he had his work well in hand and knew the condition of the boat and the amount of dumping going on at the time, his absence at' those periods possibly was not conclusive that he was not in the performance of his duties as captain. The question arises, did the defendant know that the captain had abandoned the boat without plaintiffs’ knowledge, and did it permit the dumping to continue without any effort to notify the plaintiffs or to save the plaintiffs’ property in its charge under the captain from unnecessary loss ? If. the defendant notified the plaintiffs of the absence of the captain, and they agreed to supply the place, probably a person of ordinary-care placed in the defendant’s position would have relied upon the fact that he would be replaced immediately, and would not have thought it necessary to order a suspension of the work. But it is in a way disputed whether such a conversation took place, and while the denial is very weak, it is perhaps a question for a jury to determine whether the conversation took place.

If no such conversation took place, it then becomes a question of fact whether the defendant liad reason to believe that the captain would not return to his duties when they were reasonably required, and whether an injury to the boat was liable to occur during his continued absence. While the • boat was in the general charge of the.captain, it was also in a sense in the charge of the defendant, and if it knew that the captain had abandoned his duty and that the continued loading of the boat in his absence was liable to bring injury to the boat, it may be considered as having violated its duty to the plaintiffs. If the plaintiffs had reason to believe from the presence of the captain in Hew York at their office, at the time they paid him a part only of the moneyé due him, that he was drinking or neglecting his duty, and took no means to protect their property, they cannot seriously complain.of the defendant because it did not take means to guard them against losses which they were not willing to protect themselves against. Perhaps, a man of ordinary prudence, finding the captain absent at the particular times that Breslin called at the boat, but still finding the boat in good condition, would be warranted in assuming that the captain was still in charge of the boat, was near or so near that he would give it attention when required, and as the loading of the boat at that time had not been improperly made and no injury had resulted from his absence, perhaps Breslin was justified in thinking that the captain in the performance of his duties would return before any injury could happen to the boat. He may have thought the captain was timing his absence when the condition of the loading was such that no injury would follow. . He perhaps thought the captain knew more about that business than he did.

lit is manifest that the plaintiffs were either careless in leaving the boat without a captain, or felt that certain absences of the captain from the boat were not material and that injury was not'liable to occur therefrom, and were willing to assume the risk of such an absence. Were the absences and. the conditions existing such that the defendant or the plaintiffs, or both, were chargeable with knowledge that the captain was neglecting his duty and had practically abandoned the boat, and that loss might come to the plaintiff therefrom? If the facts were equally known to both, the defendant might well assume that the plaintiffs deemed it prudent to manage their boat in their own way, and were perhaps not called upon- to interfere therewith. The negligence of the captain and his continued absence is • chargeable to the plaintiffs, but nevertheless if. they did not know the facts and the defendant did, it was not justified in recklessly and negligently permitting the other contractors to load the boat, if the loading in the absence of the captain would probably bring about an injury to the boat.

These considerations, and probably others, bear directly upon the question of fact whether the defendant violated any duty which it owed to the plaintiffs with reference to the boat, with a knowledge that the captain was not attending properly to liis duties, and whether the plaintiffs knew or had reason to believe that the captain was neglecting his duties, and took no precaution to protect the boat. . It may be that, conceding,the incompetence of the captain, if the defendant -knew or had reason to know that he had abandoned the boat, and the plaintiffs had not such knowledge' or reason to believe, a jury might find that the defendant, knowing the situation,. recklessly or negligently permitted the loading to continue to the injury of the plaintiffs. The fact that the- plaintiffs, through their captain, had negligently left their boat in a con- - dition where it was liable to suffer injury, did riot justify the defendant, if it knew the fact and that injury was liable to follow from the continuous loading of the boat, thus willfully to permit an injury to the plaintiffs’ property. After the jury pass 'upon the question it then ■ becomes a fair question for the consideration and action of the court. ■

The judgment should, therefore, be reversed and .a new trial granted, with costs to the appellants to abide the event.

All concurred, except Smith, P. J., dissenting.

■ Judgment reversed and new trial granted, with costs to appellants to abide event.  