Maritime Due Diligence: The T.J. Hooper Case Analysis

1. Circuit Court of Appeals, Second Circuit. THE T. J. HOOPER. THE NORTHERN NO. 30 AND NO. 17. THE MONTROSE. In re EASTERN TRANSP. CO. v. NORTHERN BARGE CORPORATION. H. N. HARTWELL & SON, Inc., v. SAME.

2. contents Previewof the case Key words & core concepts Section A:Case details Facts & Issues & Conclusion Section B: Q&A

3. PREVIEW OF CASE

4. Key words libel译为诽谤，不含贬义。在海事诉讼中，libel同declaration,bill or complaint。1966年《联邦民事诉讼规则》、《海事诉讼补充规则》公布后，海事案件中原告起诉状与一般民事案件相同，改称complaint,不再用libel. accuse sb. by fabled facts or just declaration assertion *libel 适航。指船东和承运人提供能够对抗海上危险的船舶和船员的义务。海涯及维斯比规则中，承运人应克尽职责（due diligence），在开航前或开航时，a使船舶适航；b妥善地配备船员、装备船舶和配备供应物品；c…… *seaworthiness

5. Key words 申诉人，即本案中的原告。一般在海事案件中，libellant为原告，libellee为被告。 *petitioner *barge & tug

6. *due diligence 为在合理的时间内完成某一事项所作的刻苦努力。一个理智而又谨慎的人为否定过失或共同过失而在此情况下所作的努力。 Core concept

7. SECTION A: CASE DETAILS

8. [1] FACTS

9. Facts *Relationship New England Coal &Coke +H.N.Hartwell & Son, Inc. • cargos owners • coal towing contract petitioners contract of carriage

10. Facts *passertions • Each tug had three ocean going coal barges in tow, the lost barge being at the end. The ‘Montrose,’ which had the No. 17; the ‘Hooper’ with the No. 30. • The weather was fair without ominous symptoms, as the tows passed the Delaware Breakwater about midnight of March eighth. • When they were about opposite Atlantic City some sixty or seventy miles to the north. The wind began to rose to a gale. And the tugs got into troubles.

11. Facts *passertions • By afternoon the second barge of the Hooper's tow was out of hand and signaled the tug, which found that not only this barge needed help, but that the No. 30 was leak without crews hurt. • The No. 17 sprang a leak about the same time; she too anchored at the Montrose's command and sank on the next morning after her crew also had been rescued. • Two barges and the cargoes on them were destroyed.

12. Facts *causation

13. [2] ISSUES

14. Issues Have they fulfilled the due diligence?

15. Issues NO.30 for BARGES • In general, before it went on sail, the worker had to review every detail of the boat to keep a safe journey. While the record shows affirmatively the exercise of due diligence to examine them. The examinations at least of the pumps were perfunctory, had they been sufficient the loss would not have occurred. When the NO.30 lead badly under the stress of weather , at least so far that her pumps could keep her alive, and her pumps failed. Then the cargos destroyed. No diligence can discover.

16. Issues NO.17 for BARGES • In general, before it went on sail, the worker had to review every detail of the boat to keep a safe journey. While the record shows affirmatively the exercise of due diligence to examine them. The examinations at least of the pumps were perfunctory, had they been sufficient the loss would not have occurred. • The heaving and straining of the seams will often probe weak spots which no diligence can discover. Even if the NO.17 weren’t in the bad situation as the NO.30 , it still leak and sank because of the heaving and straining of seams and the useless pumps. No diligence can discover.

17. Issues Mentrose & Hooper for TUGS • ???Have the fulfilled due diligence??? • If the tugs got the information about the coming gale, could the go back and avoid damage? • Whether was it a element of due diligence in the case to have a radio receiver on the tug? • Were the receiving sets generally adopted in tug business? • If not could it become a excuse to assert the limitation of liability?

18. Issues YES. Mentrose & Hooper for TUGS If the tugs got the information about the coming gale, could the go back and avoid damage? • The position where the damages happened, is just 60-70 mile from Delaware Breakwater. • As the initial judge proved that “It might have been worse to go back when the storm broke than to keep on. “ the ‘Montrose’ and the ‘Hooper’ would have had the benefit of the evening report from Arlington had they had proper receiving sets.

19. Issues Mentrose & Hooper for TUGS Whether was it a element of due diligence in the case to have a radio receiver on the tug? • Were the receiving sets generally adopted in tug business? • The receiving sets is a source of great protection to their tows. Twice every day they can receive these predictions, based upon the widest possible information, available to every vessel within two or three hundred miles and more. • Such a set is the ears of the tug to catch the spoken word, just as the master's binoculars are her eyes to see a storm signal ashore. • Whatever may be said as to other vessels, tugs towing heavy coal laden barges, strung out for half a mile, have little power to manoeuvre, and do not, as this case proves, expose themselves to weather which would not turn back stauncher craft. They can have at hand protection against dangers of which they can learn in no other way. IN PRINCIPLE

20. Issues Mentrose & Hooper for TUGS Whether was it a element of due diligence in the case to have a radio receiver on the tug? • Were the receiving sets generally adopted in tug business? NO. • They did not, because their private radio receiving sets, which were on board, were not in working order. These belonged to them personally, and were partly a toy, partly a part of the equipment, but neither furnished by the owner, nor supervised by it. • It is not fair to say that there was a general custom among coastwise carriers so to equip their tugs. • One line alone did it; as for the rest, they relied upon their crews, so far as they can be said to have relied at all. IN FACTS

21. Issues Mentrose & Hooper for TUGS Whether was it a element of due diligence in the case to have a radio receiver on the tug? NO. • If not could it become a excuse to assert the limitation of liability? • There are cases where courts seem to make the general practice of the calling the standard of proper diligence. Indeed in most cases reasonable prudence is in fact common prudence. • But strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It never may set its own tests, however persuasive be its usages. • Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.

22. Issues Mentrose & Hooper for TUGS Whether was it a element of due diligence in the case to have a radio receiver on the tug? NO. • If not could it become a excuse to assert the limitation of liability? • But here there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged is that they had not yet become general. • The statute (section 484, title 46, U. S. Code [46 USCA § 484]) does not bear on this situation at all. It prescribes not a receiving, but a transmitting set, and for a very different purpose; to call for help, not to get news. • We hold the tugs therefore because had they been properly equipped, they would have got the Arlington reports. • The injury was a direct consequence of this unseaworthiness.

23. Issues More discuss O(∩_∩)O Mentrose & Hooper for TUGS • If the tugs got the information about the coming gale, could the go back and avoid damage? • YES • Were the receiving sets generally adopted in tug business? NO. • If not could it become a excuse to assert the limitation of liability? NO. • Whether was it a element of due diligence in the case to have a radio receiver on the tug? • YES What ’s the standard of the due diligence? They haven’t fulfilled due diligence.

24. [3] Conclusion

25. Conclusion for BARGES Examine the pumps and bottom perfunctorily. Unseaworthy Do not adopt the receiving sets. Negligence unseaworthy Each tug and barge jointly liable to each cargo owner, and each tug for half damages for the loss of its barge. for TUGS

26. Conclusion Support ET Support NB Support NB The tug should take the whole responsibility. If it had sets which made them turn back in time, the barges wouldn’t have leak and sank, the cargos either destroyed. Each tug and barge jointly liable to each cargo owner According the general custom, the lack of radio sets shouldn’t be regarded as the element of the due diligence. The tug can be exoneration of liability.

27. SECTION B: Q&A

28. THANK YOU ------By Li Jing