Davidson v. Holden

There are three parties interested. There is no testimony here that the owner of the coal had anything, to do with the defendants’ tug, and all he had to do was to deliver his coal on board the “ Warren.” It was not his duty to see how she was loaded; it was not his duty in this case to see whether the “Warren ” was a good vessel. The moment the tow was taken charge of. by the tug, that moment the owner of the barge had nothing else to do; because the tug was the superior mind. Then the captain of the tug is the man that is supposed to know the port and the character of the channel, the winds and the weather; and there was no man who could interfere with him when he undertook to tow the “Warren ;” that is the law.

Now let us see what the plaintiff could do originally. He could either sue the defendant as he has done, or he could sue the owner of the “Warren.”

If the barge was unfit for service, they had just as much knowledge of that fact as the plaintiff who seeks to recover, and more.

There is no evidence here whatever that- the plaintiff knew *329anything about the condition of the boat. The defendant’s pilot says he had known the “ Warren” for two years. Now where is the responsibility ? If the defendants, when they undertook to remove that boat in the North river in the morning, saw that the weather was so bad that it was dangerous, and, if they saw it was a boat that would fill through leaks, they had that knowledge, and it was in their power to refuse to take her at all. It was their duty to refuse if they knew she was not a fit vessel. They could not have been compelled to take her, and when they did take her, they undertook a responsibility which they were bound to discharge.

You will perceive at once that the owner of the “Warren” could not say anything. He had not the management of her; he had committed her care entirely to the captain and to the navigators of the tug.

I lay down this rule of law to guide you in determining these questions about which there has been a variety of opinions (one side claiming that the boat was in a wretched condition and the other side maintaining that it was seaworthy). Assuming that the “Warren ” was not in such a condition as she ought to have been in, it is for you to say did the captain or the managers of the tug know it ? What had they done ? They had already undertaken to carry that vessel; and it was notice of the weather and of the character of the vessel when they had to put in before they went around the Battery. They started and had put into Pier 3. They had pumped her out. If she was so bad a vessel as that, and if you find that she did put in and that they did pump her out, it is for you to say whether they did not have notice of all her imperfections, and if they did, then all these rules of law must control.

Whatever knowledge of the barge the defendant’s pilot and captain in charge had from previously towing her, and from his previous knowledge of the barge that he has testified to, is the same as if the defendants had personal knowledge of the barge.

Verdict for the plaintiff.