Opinion
No. 184.
January 3, 1945.
Appeal from a decree of the United States District Court for the Eastern District of New York.
Action by McLain Lines, Inc., owner of the barge Mavis, against the steamtug Ann Marie Tracy, claimed by the Tracy Towing Line, Inc., for damage to the barge, wherein the City of New York, as owner of the ferryboat American Legion, was impleaded. From an adverse decree, the City of New York appeals.
Reversed and dismissed.
At about 7:10 a.m. on February 2, 1943, the tug Ann Marie Tracy took in tow, at Pier 18 of the Central Railroad Company of New Jersey, the barge Mavis, loaded with coal, bound for Gowanus. The barge was made fast to the tug's starboard side. The tug then proceeded on her course to Gowanus. At some time in this trip, the tug struck and caused damage to the barge. McLain Lines, Inc., owner of the barge, brought an action against the tug for these damages. The tug impleaded the City of New York, as owner of the ferryboat American Legion, alleging that the damage resulted from swells negligently caused by the ferryboat.
At the trial, the evidence showed that the ferryboat at 7:02 a.m. left St. George, Staten Island, on her regular trip to Whitehall, Manhattan, where she arrived twenty-two minutes later at 7:24 a.m. On this trip she followed her usual course. Her speed, after leaving her slip at St. George and until she approached her slip at Whitehall, was 12 miles per hour. There was testimony that swells caused by the ferryboat caused the tug and barge to roll and that, as a result, the tug struck against the portside of the barge and damaged it. At the trial the testimony was in conflict as to the positions of the tug and barge and the ferryboat when the tug and barge encountered these swells.
At the conclusion of the trial, the trial judge delivered the following oral opinion: McLain Lines, Incorporated, was the owner of the barge Mavis. This barge was in tow of the tug Ann Marie Tracy on February 2, 1943. The barge was loaded with a cargo of coal and was taken in tow by the tug, Ann Marie Tracy, at Pier 18, Central Railroad of New Jersey, bound for Gowanus and was made fast on the tug's starboard side. While proceeding across the Bay, the barge Mavis and the tug Tracy came into contact, causing damage to the barge Mavis. The question has arisen as to the cause of the damage, whether it was due to the negligence of the tug, the negligence of the ferryboat American Legion, or both. There were proper lines from the tug to the Mavis. When the tug observed the swells coming from the ferryboat American Legion, the tug slackened the lines sufficiently. Nevertheless the tug and the Mavis came into contact sufficient to cause damage to the Mavis. I can find no fault on the part of the tug. It was proceeding in a proper way. There can be no criticism of the tug in having the barge alongside; that is certainly a custom in the Harbor of New York. When the tug observed the swells, her captain did all that he reasonably could to avoid the accident. The swells were caused by the excessive speed of the American Legion which had no regard, evidently, for the traffic and the accident was caused solely through the fault of the American Legion and without any fault on the part of the libellant, the owner of the barge, or upon the owner of the tug.
"Decree accordingly, settle findings and decree on notice accordingly.
"The libel against the tug Tracy of course is dismissed without costs."
A little more than a month after he delivered this opinion, the trial judge made a decree that libellant, owner of the barge, recover from the city for the damage to the barge and dismissing the libel against the tug. On the same day, the trial judge made and filed findings of fact and conclusions of law. In the findings, he found that at about 7:20 a.m. the ferryboat had crossed the bow of the tug when the tug was "about five hundred feet east of O'Brien Brothers' stakeboat which is moored to the westerly of the main channel"; that the speed of the ferryboat, 12 miles per hour "was excessive under the circumstances"; that her construction is such that when passing a tow at that speed her swells were "likely to cause damage to the tow"; that her speed caused excessive swells; that these swells caused the damage to the barge; and that the tug did all that could reasonably have been done to avoid the damage from the excessive swells.
The findings in full are as follows:
"1. At about 7:10 A.M., local time, on February 2d 1943, the tug Ann Marie Tracy took in tow at Pier 18, Central Railroad Company of New Jersey, libellant's barge Mavis bound for Gowanus. The Tracy made fast her starboard side to the port side of the Mavis with three lines furnished and placed by the tug crew; one from the forward corner of the Mavis to the forward bitts of the tug, another from the side bitts of the Mavis to the forward bitts of the tug and a third from the stern side bitts of the tug to the starboard stern bitt of the Mavis. These were the usual and customary lines used by tugs in making fast alongside of a barge. It is usual in ordinary weather conditions for a tug having one barge in tow to take it alongside. The Mavis was bound for Gowanus.
"2. After making fast to the Mavis the Tracy proceeded on her usual course across the Upper Bay toward Gowanus heading somewhat down the Bay to counteract the effect of the flood tide. The wind was from the northwest with an average hourly velocity of about 18 miles per hour. The weather was clear and it was not yet full day light. The Tracy and the Mavis were displaying the regulation lights.
"3. At 7:02 A.M., local time, on February 2, 1943, respondent's ferryboat American Legion left her slip at St. George bound on one of her regular trips to South Ferry, Manhattan, where she arrived at about 7:24 A.M.
"4. After leaving her slip the American Legion proceeded at full engine speed which was continued without change until arrival near her slip. Her speed over the ground was approximately 12 miles per hour.
"5. About 7:20 A.M., the American Legion crossed the bow of the Tracy with the Mavis in tow then proceeding across the Upper Bay and about five hundred feet east of O'Brien Brothers' stakeboat moored to the westerly of the main channel.
"6. The American Legion is of such construction that when passing a tow at a speed of about 12 miles per hour her swells are likely to cause damage to the tow. Her master knew this and at the trial recognized the necessity for a reduction in speed by the American Legion to avoid damage to passing tows by the swells which the American Legion causes when proceeding at full speed.
"7. The American Legion crossed the bow of the Ann Marie Tracy and her tow at full engine speed and caused excessive swells which could have been avoided if the American Legion had timely reduced speed.
"8. The swells caused by the American Legion caused the Ann Marie Tracy and the Mavis to surge and roll and while rolling the Tracy struck against the port side of the Mavis causing damage to the Mavis which, at the beginning of this voyage was in seaworthy condition and without damage on the port side. After the swells subsided the Tracy continued across the Bay and brought the Mavis to her destination.
"9. When the master of the Ann Marie Tracy, an experienced navigator, observed the swells from the American Legion he stopped the engines and pursuant to his orders one of the tug's deck-hands took a position near the bow bitts and the other went to the stern bitts.
"10. When it was seen that the swells from the American Legion would cause the tow to ride and surge more than usual, the lines between the tug and the barge were slackened, but nevertheless while rolling in the swells the boats came together and the Mavis sustained damage. Those in charge of the Ann Marie Tracy, by first stopping the tug's engines and thereafter slackening the lines, did all that could reasonably have been done to avoid damage from the swells caused by the American Legion.
"11. The speed of the American Legion was excessive under the circumstances.
"12. The excessive speed of the American Legion which created the swells that caused the Tracy to strike against and damage the Mavis was the sole cause of the damage."
From the decree, the city appealed. Libellant-appellee filed no cross-assignments of error.
Ignatius M. Wilkinson, of New York City (Herbert B. Lee, of New York City, of counsel), for appellant.
Foley Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for appellee McLain Lines, Inc.
Macklin, Brown, Lenahan Speer, of New York City (Gerald J. McKernan and Anthony M. Menkel, both of New York City, of counsel), for appellee Tracy Towing Line, Inc.
Before CHASE, CLARK, and FRANK, Circuit Judges.
It is fairly obvious from the record, and it was conceded at the oral argument here, that the findings, filed a month after the oral opinion, were substantially those presented to the trial judge by the proctors for the barge-owner, the successful libellant. On the unfortunate and undesirable character of findings thus made we have often commented, calling attention to the importance of findings because they bind the upper courts unless clearly erroneous and because findings carefully made ensure a painstaking review of the evidence. One such comment, that in United States v. Forness, 2 Cir., 125 F.2d 928, 942, 943, has recently been cited with approval by the Supreme Court. United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254.
In United States v. Forness, 125 F.2d at page 943 note 45, we observed that the district judges "are not adequately supplied with law clerks" and added that, "were they so staffed, they would find more time to expend on the important task of fact-finding." Recently Congress has enacted legislation providing for more law clerks. See comment in Stern, Review of Findings of Administrators, Judges and Juries: A Comparative Analysis (1944) 58 Harv. L.Rev. 70, 83, n. 57.
Perhaps because of the manner of their making, the findings here do not enlighten us as to the crucial fact — as to which the evidence was in conflict — of the distance which separated the ferryboat from the tug when the ferryboat crossed the tugs' bow. In finding that this occurred when the tug was about 500 feet east of O'Brien's stakeboat, the trial judge relied on the testimony of the tug's captain; that testimony, because of its contradictions, inherent improbabilities, and patently biased character, seems to us highly unreliable and were we free to do so, we would hold that the distance was about a mile. But, accepting the finding, it seems clear that the distance was at least a half mile, and that, at the time, the tug was in water about 25 feet deep. On that basis, we consider "clearly erroneous" the finding that the ferryboat's speed was "excessive under the circumstances." And, considering the distance, we conclude that the ferryboat was not chargeable with a duty to foresee that swells caused by it were likely to strike the barge before they ran out sufficiently to make them harmless. See The Acadia, 2 Cir., 98 F.2d 801. It follows that the decree against the city was erroneous.
As libellant assigned no error with respect thereto, we can consider neither the findings and conclusions that the tug acted properly nor that part of the decree dismissing the libel against the tug.
Reversed and dismissed.