The T.J. Hooper,

60 F.2d 737 (1932)

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Nature of the Case

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Facts

Libels were filed by the owners of two barges for cargo loss against the barge owner. The owner of the tugs T. J. Hooper and Montrose has also instituted limitation proceedings, in which it seeks to be relieved from liability, and, at the same time, they denied fault. The barge owner asserted negligent towage by the tugs and claiming for the value of the barges. The cargo owners answered, alleging negligent towage, and contesting the right to limit. The cases were tried together as one action. The tug T. J. Hooper, with barges Carroll, A. H. Olwine, and Northern 30, and the tug Montrose, with barges Eastern, Joseph J. Hock, and Northern 17, left Hampton Roads. There were no storm warnings, and things went fine until they got to Atlantic City. There they encountered a strong wind and a heavy sea. Two of the tows became distressed and eventually sank. The cargo owners claim that the Northern 17 and the Northern 30, the barges that sank, were unseaworthy when they left Hampton Roads; (2) that the two tugs, T. J. Hooper and Montrose, were negligent in not anticipating the storm which broke on March 9th, and in not taking refuge at Delaware breakwater; and (3) that the two tugs were unseaworthy in not having effective radio sets, capable of receiving the forecasts of unfavorable weather broadcast along the coast. The owner of the tugs insists that the loss of the barges was due to their own unseaworthy condition. The owner of the tugs insists, also, that neither tug was under a duty, statutory or otherwise, to carry a radio receiving set, and it is denied that weather reports of any kind were received by the tugs on March 8th. The owner of the two barges disputes that the barges were unseaworthy, and contends that the loss of the barges and their cargoes was due to the fault of the tugs. As for the tugs, the trial court held that if the Hooper and Montrose were not under a duty to have radio apparatus capable of receiving weather reports, the charge against them of negligence must necessarily fail. It determined that the standard of seaworthiness is not dependent on statutory enactment, or condemned to inertia or rigidity, but changes 'with advancing knowledge, experience, and the changed appliances of navigation.' It is particularly affected by new devices of demonstrated worth, which have become recognized as regular equipment by common usage. From the facts, the use of the radio was shown to be so extensive as to amount almost to a universal practice in the navigation of coastwise tugs along the coast. The court held it was a duty on the part of the tug owner to supply effective receiving sets. The barges were determined to be unseaworthy. The tugs T. J. Hooper and Montrose were also found to be unseaworthy in failing to have effective radio sets, capable of receiving weather reports on March 8th, and that the limitation proceedings instituted in their behalf should be denied. The parties appealed.