See The Jamaica, D.C.W.D.N.Y. 1931, 51 F.2d 858. Both of these presumptions are rebuttable. See The Jamaica, same. The presumption of unseaworthiness has been rebutted by uncontradicted evidence, but the presumption of negligence, considered in the light of the watchman and his actions, presents a more serious problem.
In The President Madison, D.C.W.D. Wash. N.D. 1935, 13 F.Supp. 692, 696, the Court enunciated the duty of a watchman. 'It is the primary duty of a watchman to look, think, and act- look for apparent or threatened approaching danger, think how to avoid or meet it, and act to avoid or meet its effect.'
In the instant case the watchman refused to give his permission to move the tug and protested against its being moved. Such action on the part of libellant's representative relieves libellant of negligence. See Lambert Transportation Co. v. Furness-Withy & Co., 2 Cir., 1926, 16 F.2d 121. Mere protests, however, do not seem to be sufficient to discharge the duty imposed upon watchmen. No notice of the moving was communicated to Tracy until the damage was virtually an accomplished fact, and this was done some fifteen hours after said moving. In addition there was no attempt to check or adjust the lines until the tug was actually sinking. This was likewise some fifteen hours after the moving. Such inaction indicates neither thought nor adequate act to recognize, meet or avoid threatened danger.
The Court is thus presented with a situation where both parties have been guilty of negligence. In admiralty libellant's negligence is not a bar to recovery. See The Seeandbee, 6 Cir., 1939, 102 F.2d 577. It can only be invoked for the purpose of mitigating damages. See The Seeandbee case, supra. And this is so even where the libellant is suing in admiralty upon a tort arising within the territorial waters of a state. See In re Pennsylvania Railroad Co., 2 Cir., 1931, 48 F.2d 559. The negligence of which each party was guilty, does not seem to the Court to be of equal degree. That exhibited by Hudson in its unauthorized movement of the tug for its own convenience, overbalances the negligence of the watchman in not checking the lines as fastened by Hudson, and in failing to notify the home office.
B. The Limitation
This Court has jurisdiction of a proceeding to limit liability even where the tort is non-maritime in character. See Just v. Chambers, 1941, 312 U.S. 383, 61 S. Ct. 687, 85 L. Ed. 903.
The limitation provisions are contained in 46 U.S.C.A. § 183. Since subsections (b) through (f) pertain to a class of vessels of which the tug was not a member, we are only concerned with subsection (a). Section 183(a) provides that a vessel owner may limit his liability for damages where the loss was occasioned without his privity or knowledge.
Petitioner is not an owner but a bareboat charterer. His right to maintain this proceeding is statutory. See 46 U.S.C.A. § 186.
The relief sought in this proceeding is, in the alternative, exoneration from or limitation of liability. Accordingly, the first question for determination is whether liability exists, for absent that element there would be nothing to limit. See Petition of Liverpool, Brazil & River Plate Steam Nav. Co., 2 Cir., 1932, 57 F.2d 176. It is incumbent upon the claimant to prove the existence of this element. See Petition of Great Lakes Towing Co., D.C.D. Minn. 1948, 79 F.Supp. 1; The Vera III, D.C.E.D.N.Y. 1938, 24 F.Supp. 421.
In the instant case the claimant has failed to carry this burden. The evidence shows that the sinking was the result of the joint negligence of Tracy and Hudson. But there is no showing here that the sinking of the tug was the proximate cause of any damage to the wharf.
Conclusions of Law.
As to Libel.
1. The City was not guilty of any negligence.
2. The presumption of unseaworthiness has been rebutted.
3. Hudson was guilty of negligence in failing to properly affix the tug's mooring lines.
4. Libellant's watchman was guilty of negligence in that he failed to carry out his duties as a watchman.
5. The negligent acts of libellant and respondent Hudson combined to cause the sinking which resulted in the damage complained of.
6. Accordingly, damages will be apportioned 2/3 Hudson, 1/3 Tracy.
As to Petition for Limitation.
1. The petitioner is entitled to exoneration from liability.
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