Opinion
Mahar & Mason, of New York City (Frank Mason, of New York City, of counsel), for libellant.
Macklin, Brown, Lenahan & Speer, of New York City (Paul Speer, of New York City, of counsel), for claimant.
MOSCOWITZ, District Judge.
It is the libellant's contention that on December 8, 1943, the barge J. F. Macklin and a number of other light barges were in charge of the tug Patience which was making up a tow near the dock at 36th Street, East River, and that the line from The J. F. Macklin to a cleat on the dock had become disengaged and the tow drifted a short distance down the river. The tug proceeded to push the tow up again so that another line could be put out and that in doing so the tug pushed the barges broadside toward the dock, causing The J. F. Macklin to come into contact with it and thereby causing damage. That is the claim of the libellant.
The barge captain represented to the captain of the tug that the line from the bow of The J. F. Macklin to the pier was properly and securely made fast. As a matter of fact, it was not properly made fast or it would have held. It was sufficient for the operation and had it been fastened properly the barges would not have drifted. In this the barge captain was at fault. There is no fault on the part of the tug's captain.
The barge drifted down and came into contact with the dock or the pier. I cannot find from the testimony here that there was any affirmative act on the part of the tug in coming forward and causing The Macklin to come into contact with the pier.
The testimony of the barge captain is rather positive on these two points:
One, the make-up of the tug and tow and he repeated his testimony and apparently that testimony is not true.
Secondly, as to the position of the barges. He was quite positive about that and his testimony in that respect is not true.
I cannot find from this evidence, even assuming that there was a contact, that any damage was caused to this barge.
Decree for claimant, settle findings and decree on notice.