Summary
labeling fact findings as "conclusions of law" is immaterial
Summary of this case from Mentor Ins. Co.Opinion
No. 80, Docket 20755.
December 8, 1947.
Appeal from the United States District Court for the Southern District of New York.
Libel by Erie Railroad Company, as owner of the covered barge No. 289, and as bailee of two certain shipments of merchandise lately laden thereon, and as owner of the causes of action for loss of and damage to said shipments of merchandise, and on behalf of William J. Ashton, the master of the covered barge No. 289, against the Tug Cornell No. 20, and deckscow Frank Cooney. On the same day the libel was filed the New York Trap Rock Corporation, as owner, and the Christie Scow Corporation, as bare boat charterer of the deckscow Frank Cooney, filed a petition for limitation of liability. Later the Cornell Steamboat Company, as claimant of Tug Cornell No. 20, filed an answer and a petition to implead the Jarka Corporation and others. From an interlocutory decree entered, 72 F. Supp. 126, Cornell Steamboat Company, as claimant of the Tug Cornell No. 20, appeals.
Affirmed.
The opinion of the trial judge is reported in 72 F. Supp. 126, 127. His "Findings of Fact" and "Conclusions of Law" are as follows:
"Findings of Fact"1. The petitioner, New York Trap Rock Corporation, and Christie Scow Corporation, are domestic corporations and on February 25, 1944, were respectively the owner and bare boat charterer of the deckscow Frank Cooney, a rake-ended scow 112 feet long, 34.1 feet wide and 9.2 feet deep.
"2. On the morning of February 25, 1944, the deckscow Frank Cooney, having previously capsized on February 21, 1944, was moored bottom up on the north side of Pier 17, Brooklyn, about 10 or 15 feet inshore from the river end of the pier.
"3. The deckscow Frank Cooney was made fast with ¾ inch wire cables, leading from an inner beam of the Frank Cooney to a cleat and a mooring post on Pier 17.
"4. Pier 17, Brooklyn, is 648 feet long and 115 feet wide, covered with a shed from the inshore end to within 6 feet of the outshore end, which open space is called an `apron.'
"5. On the morning of February 25, 1944, the barge Erie 258, which is claimed by Erie Railroad Company, a domestic corporation, lay moored on the out-river end of Pier 17. The barge Erie 258 was light and lay bow downstream made fast with 5 inch hawsers leading from its bow and stern to the dock. The barge Erie 258 is 100 feet long, 30 feet wide and 9 feet deep and did not overlap either end of Pier 17.
"6. Outside of barge Erie 258 lay moored the loaded barge D.L. W. 576 bow downstream, made fast to the barge Erie 258 with 5 inch hawsers at its bow and stern.
"7. When the master of the barge D.L. W. 576 came aboard his vessel at 7:45 on the morning of February 25, 1944, he inspected the lines of D.L. W. 576 and of the Erie 258 and found the lines in good condition. At some time between 7:45 and 9, Isthmian's employee Dries noticed a strain on the downriver line running from Erie 258 to the dock, and observed that the line had a broken strand and he considered it in danger of parting. That condition of the line was created after the D.L. W. 576 had tied up and put an additional strain, together with the fast running tide, on Erie 258.
"8. Shortly before 9 A.M., the master of the tug Cornell No. 20, which is claimed by Cornell Steamboat Company, was ordered to shift the covered Lighter Lehigh Valley 77 from its berth on the south side of Pier 17 and to place it at the end of Pier 17, outside of the barges D.L. W. 576 and Erie 258.
"9. This order to the master of the Cornell No. 20 was given by McCabe, a harbormaster in the employ of the respondent; The Jarka Corporation.
"10. At the time the weather was clear, the tide flood and the wind northwest.
"11. The tug Cornell No. 20 took the lighter Lehigh Valley 77 in tow on its starboard side, with the bow and backer lines running from the middle of the tug, fore and aft to the Lehigh Valley 77, and a stern line from the tug to the barge.
"12. The master of the tug Cornell No. 20 was in the pilot house and the deckhand was on the stern of the tug, tending the hawsers.
"13. The two harbormasters, in the employ of the Jarka Corporation, were on board the lighter Lehigh Valley 77 for the purpose of handling the mooring lines.
"14. While engaged in landing the Lehigh Valley 77 outside of the D.L. W. 576, the tug Cornell No. 20 brought the starboard side, amidship, of the Lehigh Valley 77 into contact with the starboard forward corner of D.L. W. 576.
"15. After the Lehigh Valley 77 came into contact with the starboard bow of the barge D.L. W. 576, the harbormaster, Elorragio, cast a line from the starboard stern corner of Lehigh Valley 77 to the starboard bow corner of D.L. W. 576 and snubbed it. At about the moment when Elorragio's line caught the cleat on the D.L. W. 576, the bow line from the Erie 258 to the pier snapped or gave way.
"16. As a result of the contact between the Lehigh Valley 77 and the barge D.L. W. 576, the downriver mooring line leading from the bow of barge Erie 258 to the southerly corner of Pier 17 parted, permitting the barge Erie 258 and the D.L. W. 576 to swing around on the flood tide, and forcing the north end of Erie 258 against the capsized scow Frank Cooney.
"17. As a result of the contact by Erie 258, the mooring cables of the scow Frank Cooney parted and the scow Frank Cooney was cast adrift.
"18. The scow Frank Cooney drifted up the East River on the flood tide and came into collision with barge Erie 289, moored on the end of Pier 10, Brooklyn, casting her and other barges moored on the end of Pier 10 adrift.
"19. As a result of the collision by the drifting scow Frank Cooney, barge Erie 289 was damaged, cast adrift and later sank on the north side of Pier 2, Brooklyn, and its cargo of wood pulp and soap powder was damaged.
"20. The barge Erie 258, D.L. W. 576 and the lighter Lehigh Valley 77 did not go adrift, but were made fast at Pier 17, sustaining no damage.
"21. The engines of the tug Cornell No. 20 were not stopped until after the starboard side of the Lehigh Valley 77 came into contact with the starboard bow corner of D.L. W. 576.
"22. After making the Erie 258, D.L. W. 576 and Lehigh Valley 77 fast at the end of Pier 17, the tug Cornell No. 20 endeavored to pick up the drifting scow Frank Cooney, but did not succeed in doing so.
"Conclusions of Law"1. The breaking adrift of the capsized scow Frank Cooney and the subsequent damage to the barge Erie 289 and her cargo, was solely caused by the negligence of the master of the tug Cornell No. 20 in permitting the lighter Lehigh Valley 77 to collide with the starboard bow corner of barge D.L. W. 576, causing the mooring lines of the barge Erie 258 to part, and the barge Erie 258 to swing into contact with the scow Frank Cooney.
"2. The harbormaster, Elorragio, an employee of the Jarka Corporation, was not negligent in putting out a line from the stern corner of Lehigh Valley 77 and in snubbing this line as the Lehigh Valley 77 came alongside the D.L. W. 576.
"3. The Jarka Corporation was not negligent in the mooring of the scow Frank Cooney, nor was it negligent in the shifting operations of the Lehigh Valley 77.
"4. The mooring lines of the barge Erie 258 were in good condition at the time they were examined by the master of the barge D.L. W. 576 at approximately 7:45 on the morning of February 25, 1944.
"5. The absence of the master of barge Erie 258 at the time of the collision was accounted for and was not a contributing cause to the setting adrift of the scow Frank Cooney.
"6. The scow Frank Cooney, its owner New York Trap Rock Corporation, and its bare boat charterer Christie Scow Corporation were without fault and the petition of New York Trap Rock Corporation, as owner, and Christie Scow Corporation, as bare boat charterer of the scow Frank Cooney, for exoneration from liability, will be granted.
"7. Libellant, Erie Railroad Company, as owner of barge Erie 289 and as bailee of its cargo, is entitled to a decree against the tug Cornell No. 20 and her claimant for the damage resulting from the collision between the drifting scow Frank Cooney and barge Erie 289.
"8. The petition of Cornell Steamboat Company impleading the Jarka Corporation, the covered barge Erie 258, New York Trap Rock Corporation, Christie Scow Corporation and Pennsylvania Railroad Company will be dismissed."
Hagen Eidenbach, of New York City (Henry E. Eidenbach, of New York City, of counsel), for Erie R. Co.
Kirlin, Campbell, Hickox Keating, of New York City (Robert S. Erskine and John H. Hanrahan, both of New York City, of counsel), for Cornell Steamboat Co.
George A. Garvey, of New York City, for Jarka Corporation.
Burlingham, Veeder, Clark Hupper, of New York City (Stanley R. Wright, of New York City, of counsel), for Pennsylvania R. Co.
Foley Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for New York Trap Rock Corporation and Christie Scow Corporation.
Before L. HAND, AUGUSTUS N. HAND and FRANK, Circuit Judges.
Determination of the facts of a lawsuit, when the witnesses disagree about them, always presents difficulties. As the facts necessarily occurred in the past, and not in the trial judge's presence, he must undertake an historical reconstruction; and the wiser historians tell us that any such reconstruction is inherently guessy. For the likelihood is small that any mere mortal can acquire absolutely certain knowledge of bygone events. The probability is less that such knowledge will be approximated by upper-court judges, reading but a printed record, than by a trial judge who sees and hears the witnesses testify. For that reason, pursuant to the Rules, we have repeatedly refused to retry the facts of a case when the evidence was oral. Here we are again asked to do so, and must again refuse. Although perhaps we should stop at this point, we shall briefly consider appellant's contentions.
Cornell contends that Jarka should be held because (contrary to the judge's finding) Jarka's employee was negligent in putting out a line from the stern corner of the Lehigh Valley 77 and in snubbing that line as the 77 came alongside the D.L. W. 576. But the trial judge found as a fact that, before this occurred, the bowline of the Erie 258 had already parted, and that it did so as a result of the fact that the Cornell No. 20 had "permitted" the Lehigh Valley 77 to "collide" with the D.L. W. 576. We must accept those findings because there is some substantial evidence to support them. Accordingly, this conduct of Jarka was not a factor contributing to the accident.
In his opinion (72 F. Supp. at page 132) the judge said, "It is the contention of Cornell that the snubbing of the line caused the breaking of the mooring [of the Erie 258], but it appears to this court that the contact between the No. 77 and the No. 576 broke the mooring, which occurred before the line was snubbed." On a motion for rehearing, the judge ( 72 F. Supp. 134) adhered to this view of the facts.
See the judge's first "conclusion of law."
The judge having thus found that the collision caused the parting of the bow-line of the Erie 258, also found that this, in turn, caused the Erie 258 to "swing into contact with the scow Frank Cooney." Cornell contends that this swing could not have brought the 258 into such contact unless Jarka had so negligently moored the Frank Cooney that its submerged rake extended beyond the end of the pier. We cannot agree. There is evidence sufficient to bear out the finding that no part of the capsized scow thus extended. There is also enough evidence to sustain the finding that the amplitude of the swing of the Erie 258 brought it up against the Frank Cooney.
Due to Jarka's neglect, the bowline of the Erie 258 was defective when the collision occurred. Interesting legal questions might have arisen had there been evidence that the line was so defective that it would have parted on a mere "harbor bump," or that, if the line had been sound, it would not have broken under the impact of a collision. But, having in mind that Cornell had "the burden of proving that an intervening act of negligence caused the loss," we think there is no evidence sufficient to justify either such finding. We must, therefore, take it as a fact that the line would have withstood any contact less violent than a collision. The evidence is such that we cannot hold any of the other findings clearly erroneous. It is immaterial that some of the formal findings are labeled "conclusions of law" or are supplemented by statements of fact in the judge's opinion.
The B.B. No. 21, 2 Cir., 54 F.2d 532, 534. There we also said: "To be relieved from the consequences of his own fault, a wrongdoer must do more than merely suggest the possibility that the tort of another may have intervened." See also The City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84; The Mexico, 2 Cir., 84 F. 504; The Newburgh, 2 Cir., 130 F. 321; The C.E. Paul, D.C., 175 F. 246, 250; The Bartle Daly, 2 Cir., 45 F.2d 605; The Revere, 2 Cir., 63 F.2d 775; The Anna O'Boyle, 2 Cir., 122 F.2d 286, 288, rehearing denied 124 F.2d 180; P. Dougherty Co. v. The G.M. McAllister, 2 Cir., 159 F.2d 486.
On the facts as found, the judge correctly concluded that Cornell No. 20 was negligent and solely at fault.
Affirmed.