Master Costello ((NEW))

The suit was heard by Witing, J., by whose order there were entered in interlocutory decree confirming the master's report, and a final decree enjoining the defendants, "members of Local No 15 International Association of Billposters and Billers, its and their officers, agents, servants, attorneys and employees, from placing the name of

master costello

the plaintiff or the Paramount or Broadway Theatres in Springfield upon any sign, card, placard or other display so as to induce or attempt to induce persons not to patronize either of the above named theatres of the petitioner; from picketing before the theatres above named; from parading before the petitioner's permises above referred to with signs such as described in the master's report or other signs of similar purport; from interfering by word of mouth, printed articles or otherwise with the patrons and customers of the petitioner's theatres above named."

CROSBY, J. This is a bill in equity brought by a Massachusetts corporation engaged in the business of operating theatres in several cities in this Commonwealth, including the Paramount and Broadway theatres in the city of Springfield, against the members of a voluntary association or labor union known as Local No. 15 International Association of Billposters and Billers (herein called the Local), and against other members of the Local whose names are alleged to be unknown to the plaintiff. The bill is brought to restrain the defendants from conspiring to injure the plaintiff in its business and from other acts set forth in the prayers of the bill. The case was heard by a master whose report was confirmed, and a final decree was entered restraining the defendants from picketing before the Paramount or the Broadway Theater in Springfield, and from attempting to induce persons not to patronize the theatres by signs, cards, placards or otherwise. The case is before this court upon an appeal from that decree.

The master made the following findings: The Paramount Theater has been operated by the plaintiff since it was opened in September, 1929. Members of the union were employed about a month before the opening to do the outside billposting and billing, and thereafter they were employed to do such advertising work, except during the summer and fall of 1930, until December of that year.

It is further found by the master that this lobby work at the Paramount Theater was not within the scope or purpose for which this member of the union was hired, as stated to him by the plaintiff's representative at the time of such hiring, nor was he at any time requested to do this work by any authorized representative of the plaintiff. There was no evidence that he was paid for such work, as such, by way of overtime or otherwise; but he was employed daily during working hours to put up and distribute outside advertising for the theatre, for which he was paid.

At the conclusion of the meeting on March 13 notice was given the plaintiff's managers by the business agent of the Local that the three members thereof, then in the plaintiff's employ, would stop work at the end of two weeks. On the evening of the same day two members of the Local began picketing in front of the Paramount Theater by passing back and forth on the sidewalk, each with a printed placard or sign, attached to a stick, on which was printed the following: "UNION MEN AND WOMEN DO NOT PATRONIZE THIS THEATER THIS THEATER UNFAIR TO THE BILLPOSTERS UNION Affiliated with the Springfield Central Labor Union. UNION BILL- . POSTERS LOCKED OUT. UNION SYMPATHIZERS STAY AWAY." The master found that the picketing to some extent interfered with the business of the Paramount Theater and to some appreciable extent affected the receipts thereof; and he stated that "As a fair inference from the facts hereinabove set forth as to such picketing by members of said local, I find that the conduct of such picketing if continued would further injuriously affect the plaintiff in

charge. The findings of the master and the undisputed evidence showed that previous to the strike members of the Local were doing all the outside billposting, and the strike was called because of the refusal of the plaintiff to permit the members of the Local to do the inside bill-posting. It follows that the false statement that union billposters were locked out was an unlawful means of conducting the strike. In effect it amounted to the boycotting of the plaintiff's, business by the defendants causing it loss and was plainly unlawful. Burnham v. Dowd, 217 Mass. 351. New England Cement Gun Co. v. McGivern, 218 Mass. 198. Harvey v. Chapman, 226 Mass. 191. Godin v. Niebuhr, 236 Mass. 350. In view of the conclusion reached we need not consider whether the statement on the placards that the theatre was unfair to the billposters' union was untrue and therefore unlawful. The decision in Pickett v. Walsh, 192 Mass. 572, upon which the defendants rely, is plainly distinguishable from the case at bar. See Folsom Engraving Co. v. McNeil, 235 Mass. 269, 277, 278.

The remaining point is whether the charterer of No. 10 was properly denied limitation of liability. Opposition to the granting of limitation was based on the contentions that the tug was insufficiently and incompetently manned. The district judge found that only one of the two deckhands was on board at the time of the collision and he (Costello) was incompetent; that his incompetence was a contributing cause of the collision, and that the charterer was chargeable with knowledge of his incompetence, because Carine, dispatcher and hirer of crews for tugs of the charterer in New York, as well as Tucker, who had similar duties in Buffalo, knew that Costello was a member of the crew. Costello was only 19 years old and prior to shipping as deckhand on the No. 10 had had no experience on tugs. It may be noted, however, that he was not wholly without experience in navigation on the canal; he had had plenty of experience in handling lines on canal boats and had been serving as deckhand on the tug for more than a month prior to the collision. If the finding that the dispatchers "knew that he was a member of the crew" be construed as a finding that they knew Costello was inexperienced, we do not think that the dispatchers are thereby shown at fault. The duties of a deckhand on a tug do not require a high degree of skill. No license is required, nor is any period of apprenticeship customary, so far as we are informed. Green men must be instructed in their duties by the master of the tug, but we do not think the operating company is ipso facto culpable for hiring a green deckhand. An able-bodied young man of 19, much of whose life has been spent on canal boats, should presumptively be competent to perform the duties of a deckhand if instructed by the tug master. The master of the No. 10 did not give Costello any instructions, although he knew that this was his first job on a tug. Hence the deckhand's failure to stand by the hawsers when the tow was rounding a bend would seem to be a fault chargeable to the master's failure to give instructions rather than to the dispatcher's knowledge of the employment of a green hand. Denial of limitation cannot be sustained on the ground of Costello's incompetence based only on his inexperience.

But there was also a finding that the tug was undermanned at the time of collision. There was testimony by Gooley and Costello that the second deckhand, Ingleston, did not join the tug until several days later, at Baldwinsville. Although *566 Judge Coxe made no finding that this fact was known to any managerial agent of the charterer, there is testimony by Costello that he heard the tug master tell Tucker, the charterer's Buffalo agent, on the dock that there was no other deckhand than Costello. The tug master did not expressly deny this conversation but he did testify that Tucker was not on the dock when the tow set out from Buffalo. Tucker denied that the tug captain had notified him of the crew shortage, but his testimony is rendered most doubtful by the admission that he sent a telegram to Shephard to join the No. 10 at Buffalo as a deckhand, and did not know whether Shephard went on the tug or on a salt boat. We think the record requires a finding that Tucker knew that the tug left Buffalo short one deckhand. Being a managerial agent of the charterer Tucker's privity or knowledge is chargeable to it and deprives it of the privilege of limitation; it has not disproved its privity, which it must do to limit liability. The Rambler, 2 Cir., 290 F. 791, 792; The 84-H, 2 Cir., 296 F. 427, 432; Southern Pacific Co. v. United States, 2 Cir., 72 F.2d 212, 214. The charterer is therefore in the same position as if it had no privilege of limitation, and is liable in full if it is held that the absence of a second deckhand was a cause of the accident. Since the absence has been found, and the lack is admitted to be a statutory fault, (see 46 U.S.C.A. 222, 362 and 405) it is presumed that the fault is a contributory cause, and the petitioner must bear the burden of showing that it was not. The Pennsylvania, 19 Wall. 125, 136, 22 L. Ed. 148; The Albert Dumois, 177 U.S. 240, 254, 20 S. Ct. 595, 44 L. Ed. 751; Lie v. San Francisco & Portland S. S. Co., 243 U.S. 291, 298, 37 S. Ct. 270, 61 L. Ed. 726; The Annie Faxon, 9 Cir., 75 F. 312, 319; McGill v. Michigan S. S. Co., 9 Cir., 144 F. 788, 795, certiorari denied, 203 U.S. 593, 27 S. Ct. 782, 51 L. Ed. 332; The Suffolk, 2 Cir., 258 F. 219; The Fulton, 2 Cir., 54 F.2d 467, 469; The Annie, D.C., 261 F. 797, 799. This burden it has not met, for it is impossible to say that the other deckhand might not have been on duty instead of Costello on the morning of the collision, had there been two deckhands on board. On the ground that the tug was undermanned, that the charterer was privy to the undermanning, and that this fault may have been a contributing cause of the collision, the denial of limitation to the operating charterer is sustained. 041b061a72