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There is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others obviously he must reduce his damages proportionately, if the injury is to his own barge. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: If the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL.
Appellant barge owner chartered barge to railroad. The barge, with cargo of flour, was moored to end of pier. Other barges were moored outside her; her lines to pier were not strengthened. Appellant tug owner chartered a tug to the company to drill out one of the barges. On board the tug was a harbormaster employed by company. The harbormaster and the deckhand went aboard the barge and readjusted its fasts to their satisfaction. After doing so, they threw off the line and boarded the tug, which backed away from the outside barge. A tier off the pier broke adrift because the fasts from the barge carried away. The Barge hit the tanker, and the tanker's propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. The District court held appellant tug owner liable to United States, railroad, and appellant barge owner. Railroad was held secondarily liable to appellant barge owner.
Whether the absence of an attendant renders the barge owner partly liable for damages to the other vessels after the barge broke lose?
The court adopted the formula of whether the burden was less than the injury multiplied by the probability for determining duty. It is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. The probability that the barge would break away seems relatively high. New York Harbor is a very crowded harbor, and boats are probably unmoored quite often to make room for other ships to pass. The barges in the harbor are also likely expensive and the gravity of injury in lost cargo or a lost ship could be very great, especially in a crowded harbor. Especially during short January days and in the full tide of war activity, barges were constantly being “drilled” in and out, and a bargee could be expected to know this. There was no excuse for the bargee’s 21-hour absence, and it seems a reasonable expectation that the bargee would be present, at least during working hours of daylight.