Opinion
Nos. 306, 307.
May 20, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.
Libels by the American Sugar Refining Company against the City of New York, the Bouker Contracting Company and others, and by O'Brien Bros., Inc., against the City of New York and others, in which the Bouker Contracting Company was impleaded. From the decree [ 27 F.2d 989], the Bouker Contracting Company appeals. Modified and affirmed.
These two cases were, by stipulation, tried together in the United States District Court for the Eastern District of New York. The Bouker Contracting Company was held liable in both cases, and appealed. As to all others, the libels were dismissed.
The American Sugar Refining Company brought its action in admiralty against the city of New York, and the other respondents were brought into the case on petition of the city under the fifty-sixth rule. The suit by O'Brien Bros., Inc., was brought against the city of New York and the scows J.J. McGuirl and Subway for salvage, in behalf of itself and of the crew of the steam tug O'Brien. The other respondents were impleaded, as in the first case.
The Shamrock Towing Company, Inc., having a contract with the city to tow scows used in the disposal of refuse, on March 19, 1924, tied up a tow, consisting of the scows D.S.C. No. 8 and D.S.C. No. 43, the Subway and the J.J. McGuirl, at a bulkhead between Fourteenth and Fifteenth streets, Manhattan. The first two scows belonged to the city, and the others were chartered by it. A dumper, No. 73 H, owned by the Bouker Contracting Company, was already moored at the bulkhead, and to the north of the dumper was a digger. Abreast of the dumper, but not close to it, the scow Julia McGeeney was moored. The four scows were securely made fast by two lines from the D.S.C. No. 8 to the dumper and a line from the J.J. McGuirl to the McGeeney. The tide was flooding.
After this, a Bouker Contracting Company tug came to remove the dumper. The captain of the No. 8 was asked to let go his lines then made fast to the dumper, and refused. Thereupon a man from the tug cast off the lines. The dumper was taken out, and there was evidence tending to show that the four scows swung out into the stream, made fast only by the line from the McGuirl to the McGeeney. There was also evidence tending to show that this line then parted. At any rate, the tug noticed the situation of the scows, came back and pushed the Subway in toward the bulkhead, so that the flotilla was then made fast by a line from the port after bitt of the No. 8 to a mooring post on the bulkhead. The tug then left. The wind soon caused the tow to swing out in such a way that it was impossible to put out any more lines until the tide turned and the tow swung in toward the bulkhead. Then a line was passed from the Subway to the bulkhead and there made fast to a mooring post. The evidence in the case does not show any lack of opportunity to moor the flotilla to the bulkhead in a way satisfactory to the scow captains in charge, or that they were in any way dissatisfied with the manner of the mooring at this time. In less than two hours, however, the line from the No. 8 parted, putting such a strain on the bulkhead mooring post over which the Subway's line had been passed that this post gave way and the scows went adrift.
The No. 8 and the Subway carried anchors, but neither then nor later used or attempted to use them. The No. 43 had no anchor, and it was conceded, notwithstanding some testimony to the contrary, that the McGuirl had none.
The four scows drifted near enough to a dumper, Sea Cow, which was tied up at or near Wall Street, to throw a line to her. Soon afterwards the Sea Cow broke away from her mooring, and the scows were again adrift, taking the Sea Cow with them. They drifted about until a little after 11 p.m. on March 19, when the tug John J. Arbuckle, owned and operated by the Jay Street Terminal, picked them up and took them to Pier 4, Brooklyn, where the flotilla of four was made fast in a way satisfactory to their captains, and then took the Sea Cow to Pier 7, Brooklyn, where it was tied up. The flotilla lay at Pier 4 about four hours, when, for some unknown reason a mooring line attached to the McGuirl parted and the entire strain was cast upon two lines made fast to the same bitt on the No. 8, which had held the line that parted at the bulkhead just before the scows went adrift there. This bitt now gave way and the scows were again adrift. They floated up the river until the No. 43, early in the morning of March 20, struck the American Sugar Refining Company's barge Brazil which was moored at a pier at South Second Street Brooklyn and had no power. After doing considerable damage to the Brazil, the scows drifted on up the river until they were picked up by the tug O'Brien, owned and operated by the O'Brien Bros., Inc., towed to North Tenth street, Brooklyn, and there made fast in such a way that their career of aimless wandering was ended.
The trial court found that the negligence of the Bouker tug, in disturbing their fast at the bulkhead and leaving them as it did, was the proximate cause of the subsequent drifting of the scows and damage to the Brazil, and held the Bouker Contracting Company liable for the damage and for salvage. This was on the theory that the negligence of the Bouker tug caused a strain on the bitt of the No. 8, just before the scows drifted away from the bulkhead, that weakened it and resulted in its giving way at the time of the last drifting from Pier 4, Brooklyn. There was no evidence, however, to show what the condition of this bitt was at any time before it gave way at Pier 4, unless the fact that it held a line which parted at the bulkhead may be taken as evidence that it was in a weakened condition.
Bigham, Englar, Jones Houston, of New York City (Leonard J. Matteson and A.J. McElhinney, both of New York City, of counsel), for libelant American Sugar Refining Company.
Alexander Ash, of New York City (Edward Ash, of New York City, of counsel), for Shamrock Towing Co., Inc., and the J.J. McGuirl.
Courtland Palmer, of New York City, for appellee Jay Street Terminal.
Foley Martin, of New York City (James A. Martin and Edward E. Elder, both of New York City, of counsel), for Bouker Contracting Co. and O'Brien Bros., Inc.
George P. Nicholson, of New York City (Charles J. Carroll, of Brooklyn and William J. Leonard, of New York City, of counsel), for City of New York.
John R. McMullen, of New York City, for appellee Scow Subway.
Before MANTON, L. HAND, and CHASE, Circuit Judges.
It neither is, nor can be, claimed that the Brazil, moored as it was, without any power whatever, could have avoided the collision or was in any way at fault. Nor is there any question about O'Brien Bros., Inc., being entitled to salvage for the final picking up and successful tieing up of the scows. We will assume, for the purposes of this case, without deciding, that the Bouker tug negligently left these scows insecurely moored at the bulkhead, and consider whether such negligence was the proximate cause of what followed. It is seen that the scow captains had one opportunity, after their fast had been disturbed, to tie up securely at the bulkhead, when the line was actually passed from the Subway to the mooring post. They then contented themselves with putting out this one line. After their lines parted, and they did go adrift, but before any damage was done, they were tied up in a manner they approved at Pier 4, Brooklyn, when the John J. Arbuckle picked them up and towed them there.
At this time, at least, common prudence should have dictated getting a fast which, in view of what had already taken place that night, would have made sure that their voyage was ended. If the bitt on No. 8 had been loosened, it is difficult to excuse these captains for being satisfied to use the bitt again, when they certainly knew of the strain to which it had already been subjected, and quite as certainly had the opportunity to tie up in whatever way then seemed to them to be secure. If the fast at Pier 4 was a prudent one, it is certain that any negligence of the Bouker tug at the bulkhead had spent its force before the flotilla again broke way. If the fast at Pier 4 was made negligently, the scow captains are chargeable with this negligence, because it was made to their satisfaction. McWilliams et al. v. Philadelphia Reading Co. (C.C.A.) 203 F. 859, Brigham et al. v. Cornell Steamboat Co. (C.C.A.) 18 F.2d 92. In either event any negligence of the Bouker tug was the remote, rather than the proximate, cause of what followed.
When the flotilla for some unexplained reason broke way from Pier 4 at the time when one of the lines parted and put all the strain on the bitt of No. 8, which then gave way, the scows drifted from there to South Second street, Brooklyn, where the Brazil was struck, without using or making any attempt to use the anchors they had. While it is true that the case did not show whether or not an attempt to anchor would have been successful, there was nothing to excuse the failure to try, or to excuse the failure to have any anchors whatever on two of the scows. Although neither libel expressly relied upon the failure to have or use anchors, the answer of the Bouker Contracting Company charged the scows with this fault, and no objection was made to the evidence in this regard which was introduced at the trial. The McGuirl and the No. 43 were unseaworthy and at fault for failure to have any anchors. The Panther (C.C.A.) 5 F.2d 64; The Sunnyside (C.C.A.) 251 F. 271; The M.E. Luckenbach (D.C.) 200 F. 630, affirmed (C.C.A.) 214 F. 571. To have anchors, as did the No. 8 and the Subway, and without any excuse neglect to use them, puts these scows in a situation no better than that of the scows which had no anchors.
In the District Court the appellant was held on the theory that its negligence in leaving the scows at the Fourteenth street bulkhead caused the weakening of the bitt which gave way on the No. 8 at Pier 4, but we find nothing in the evidence to support this theory. The evidence shows only that this bitt had been subjected to sufficient strain at the bulkhead to break the line, but it does not follow that this same strain broke or weakened the bitt, or had any causal effect whatever on the drifting from Pier 4.
The decree of the District Court is modified, to hold the city of New York solely liable for the damage to the Brazil and for the salvage, to dismiss the libels against the Bouker Contracting Company, with costs, and in other respects it is affirmed.