Opinion
No. 147.
March 18, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by the New York Marine Company against John G. Mulligan and the Merritt-Chapman Scott Corporation to recover damages to libelant's tugs colliding with respondent Mulligan's submerged scow. From a decree dismissing the libel as against respondent Mulligan and granting recovery as against respondent last named of full damages in respect to two of libelant's tugs and half damages in respect to another tug, respondent last named appeals. Reversed, and libel dismissed.
A dump scow belonging to the respondent Mulligan, while loaded with 500 or 600 yards of cellar dirt, sank early in the morning of September 24, 1925, in Buttermilk Channel, off Erie Basin breakwater, Brooklyn. The respondent Merritt-Chapman Scott Corporation, learning of this, applied for the job of raising her. The wreck had already been marked, upon the request of Mulligan, by the Lighthouse Department, which placed a buoy about 15 or 20 feet outside of the wreck, and approximately 400 feet from the breakwater. A diver, who was employed by the wrecking company, went down and found the scow on its side, with only a patch necessary for temporary repairs. In order to facilitate the raising operation, the diver made one end of a small line fast to the scow and brought the other end to the surface, where it was made fast to the wreck buoy. The wrecking company offered to raise the located scow, patch, pump out, and deliver her at Bush's Dry Dock for $975. This bid, after conference with the underwriters, was accepted and the derrick Century, of the Merritt-Chapman Scott Corporation, was towed to the wreck buoy on Saturday morning, the 26th, for the purpose of raising the sunken barge. The small line which the diver had fastened to the scow and led up to the spar buoy the day before had, in the meantime, broken away, or had otherwise disappeared, so that divers were not sent down, and the master of the Century attempted definitely to locate the wreck in another way. The master of the Century, after anchoring her by an anchor at each of the four corners, threw out weight lines and dragged to search for the submerged scow. He swept underneath with anchor cables and then sent out a small boat containing three deckhands and a mate to make soundings ahead and astern of the Century. For some reason, difficult to understand, the scow was not found, and the tide was running so strong that the captain was unwilling to send divers down. After sounding for about 1 hour and 20 minutes, he went ashore, about 11:30, and telephoned to the office of the wrecking company that he had been unable to find the sunken scow.
Schaefer, the assistant manager of the salvage department, told him to send the divers back to the office immediately, and informed him that he would send out a boat later to him. The reason for these instructions the captain did not then know, but he afterwards learned that the sinking of the submarine S-51, near Block Island, had resulted in a call upon the Merritt-Chapman Scott Corporation to send equipment to Block Island to aid in the rescue.
After telephoning, the master of the Century returned to her, sent the divers ashore, and proceeded to heave the anchors of the Century. One of the anchors fouled some object, which turned out to be the sunken barge. The captain thereupon had a wire fall run from the boom with a 25-foot hook and chain at the end, and hitched on the anchor cable, so as to obtain a vertical pull on the line. This resulted in drawing the scow to the surface about 40 feet off the Century's starboard bow. In this situation there appeared to be a chance to salvage the scow without divers. The captain then put out a 5½-inch line, to be made fast to a bitt or cleat on the scow; but his men could not reach any bitt or cleat, because it was too far under water, so he had the line made fast to the anchor, the lower part of which was under water, and started to haul the scow in. But the Century had been rigged to take in the scow on her port side, and the tackle had to be changed, as the scow was on the starboard side. It was necessary to release the hook and wire from the fall of the boom, which was fastened on the anchor chain to get the vertical strain, as they had to be replaced by the apparatus to hold the slings which the captain hoped to drag under the scow. The fall was gradually lowered until the weight of the scow had been transferred to the 5½-inch line, and the anchor cable near the hook and chain was released. After this was done, the captain had the 5½-inch line hauled in to raise the scow, so that the slings could be swept under by the strong flood tide, but found that meantime she had slipped off the anchor. Soundings were taken from the deck of the Century, and also from the small boat, but the scow could not be found. Thereupon the Century left, and was towed to Block Island to rescue the S-51.
About 12:10 o'clock in the afternoon of September 26th, Mulligan, Jr., telephoned the Lighthouse Department that the wreck could not be located, though the buoy was still in position, and requested them to relocate her. This was before the anchor of the Century was fouled, and after she had searched in vain for the scow. Shortly before 6 p.m. on the same day, the master of the tug Dalzelline, while proceeding to take the Vauban to Robins Dry Dock, struck the submerged scow, which had apparently floated up from her old position and was close by the Brooklyn shore, off Pier 41, a long distance both from where she first sank and from the place farther upstream and inshore where she was caught on the Century's anchor. After docking the Vauban, he moved the original spar buoy installed by the Lighthouse Department to mark the wreck, took it to the place where he found the submerged scow, and placed it just above the wreck.
Shortly after this, libelant's tug No. 3, while navigating in Red Hook Channel, ran into the wreck near Pier 40. Her master said the spar buoy was then 1,000 feet below the sunken object, but he had previously testified before the Board of Inspection to a distance of only 400 feet away. In either case, the wreck had moved a long distance from her original position. She was damaged, and one of her crew was drowned. Libelant's tugs No. 1 and No. 2 were sent to assist No. 3, and each collided with the wreck and was damaged. The master of the No. 2 testified before the board that the buoy was 600 to 700 feet from the barge, and the master of No. 1 testified before the board that the buoy was 400 or 500 feet away. The master of the ferryboat Wanamaker, who saw the collision of No. 3 with the wreck, estimated the distance of the buoy from the wreck as only about 100 feet. Whichever of these estimates be correct, it was thoroughly established that both wreck and spar buoy were several thousand feet to the north of their original position.
The only dispute of importance is the correctness of the story of the master of the Century as to fouling his anchor and then trying to raise the scow. Bennett, the master of the Dalzelline who came to tow away the Century, said that three of her men went out in a small boat, and, while one hung on to the scow for an hour, the other two chopped with axes until they released the anchor from the combing of the scow, where it was caught, and let the scow go. The District Judge credited Bennett's testimony, and he was apparently a disinterested witness; but, in our opinion, the story is so incredible that it ought not to be accepted.
In the first place, Bennett's account is wholly uncorroborated, except by his mate, Adams, whose testimony was seriously discredited. On the other hand, Johnson, of the mine sweeper Mallard, confirmed the story of the master of the Century, as did Keels, of the same vessel. Furthermore, Gardner, the master of the libelant's own tug, Panther, who said: "They had this small anchor hooked on to the scow, trying to raise her to the surface," made no mention of chopping, and gave an account quite inconsistent with Bennett's version. Five of the crew of the Century also denied that any chopping was done.
But, entirely aside from the overwhelming mass of testimony which contradicts Bennett's story, it seems inherently impossible. The anchor was caught in the scow under water. That chopping could be done under water and by men in a small boat in the tidal currents of the harbor, steadied only by one man hanging on to a slimy, half-floating barge, for about an hour, is beyond our belief.
The trial judge found that the Merritt-Chapman Scott Corporation deliberately set the scow adrift after catching it on the anchor of the Century, and held that for this act it was liable. On the other hand, he found that Mulligan had notified the Lighthouse Department, and that they had marked the wreck originally, and that the captain of the Dalzelline had marked it after the scow was set adrift, as well as was practicable. On these findings a decree was granted, awarding damages to the libelant against the Merritt-Chapman Scott Corporation, and dismissing the libel as against the respondent Mulligan.
Haight, Smith, Griffin Deming, of New York City (Henry M. Hewitt and James McKown, Jr., both of New York City, of counsel), for appellant Merritt-Chapman Scott Corporation.
John R. McMullen and Macklin, Brown, Lenahan Speer, all of New York City (Horace L. Cheyney and J.D. Eggleston, both of New York City, of counsel), for John G. Mulligan, respondent appellee.
Frederick W. Park, of New York City, for New York Marine Company, libelant appellee.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
Mulligan, as owner of the scow, had complied with the statute by notifying the Lighthouse Department to mark the wreck, so that he was rightly freed from any liability. The Plymouth (C.C.A.) 225 F. 483; Red Star Towing Transportation Co. v. Woodburn (C.C.A.) 18 F.2d 77. The only question is as to the liability of Merritt-Chapman Scott Corporation.
The contract of the wrecking company to raise the scow was personal, and the failure to continue to perform it when the scow went adrift was a matter in which no one but Mulligan was concerned. If the wrecking company had had no contractual obligation to Mulligan, and the Century had merely caught her bow anchor on the submerged scow while heaving anchor to get under way, it could not be seriously contended that the wrecking company was under any duty to mark the wreck, or to stand by, or to raise the scow. But, because there was a contract, libelant seeks to create a tort out of the accidental contact of the anchor with the scow. We can find no basis for this theory of liability.
If there is to be a liability, it must be because a wrecking vessel, having once partially raised the scow, owed a duty to navigation to get her out of the channel. Such a theory involves heavy obligations on the part of one who appeared to be under no duty, other than to abstain from affirmative acts of negligence which would result in foreseeable damage to others.
Even if the Century actually cast adrift the scow, which had fouled her anchor, libelant cannot prevail. If she did this, as we cannot believe, it is hard to see how such a thing made matters worse. The scow had already drifted a considerable distance from the spar buoy. The mark placed by the Lighthouse Department had ceased to be effectual, and, wherever in the channel the scow sank, it was no more dangerous to navigation than before. It may be argued that the partial raising had partially emptied the sand pockets, so that the scow was a greater menace than before, because it would float nearer the surface. But it had sunk out of sight, and the Century had no reason to believe that it was not as far down in the water as before it slid off her anchor. Nor can it be said that the Century moved the scow from a safe place to one that was more dangerous to navigation, or from a position marked by a buoy to one that was not. The original buoy was too far from the location where the barge was found to be of any service, and the captain of the Dalzelline marked the wreck, so far as was practicable, after the Century left and before the collision.
Libelant can only prevail if the Century was bound to search for the scow, which by chance had fouled her anchor, until she found it, and then to remove it from the channel. To find the scow, the Lighthouse Department searched the whole day succeeding the accident, without success. Such is the burdensome duty to the public that libelant seeks to impose upon the wrecking company, merely because it had a contract with Mulligan and the anchor of the Century by chance came in contact with the scow. We know of no such duty, and accordingly hold that the wrecking company was not at fault.
The decree against Merritt-Chapman Scott Corporation is reversed, and the libel dismissed.