Opinion
No. 219.
February 16, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by the Newtown Creek Towing Company against the Astoria Importing Manufacturing Company, Incorporated. From a decree in admiralty holding it liable for damages to the libelant's tug, respondent appeals.
Reversed, and libel dismissed.
The respondent owns and operates a mahogany veneer plant on the north side of Steinway creek, Astoria. It imports mahogany logs which are unloaded from ships into a log crib, and then are towed up the creek to the respondent's plant by motorboat. These logs are 16 feet long and about 30 inches in diameter. When so towed, each log has a 2-inch staple driven into one end to hold a three-eighth inch rope with which it is towed. These three-eighth inch individual lines are attached to about forty logs and all made fast to a towing line. In this way what might be called a forty-log fan-shaped raft is towed at a time. At the respondent's plant such rafts are made fast to the wharf by the towing line until the logs are used. A log boom is stretched at night around what rafts are tied up at the wharf as a further precaution against logs going adrift. This boom curves to a maximum of about 25 feet from the wharf into the channel. At the plant, the channel of the creek has a mud bottom with no rocks; is so shallow that a tug drawing 10 feet will touch the bottom at high tide which is 6 or 7 feet above low water; is about 60 feet wide at the dock; and, as the log boom extended out about 25 feet, had something like 35 feet of navigable water left. On September 22, 1927, such a boom with rafts of logs inside tied to the wharf was lying at the respondent's plant.
At about 10 p.m. daylight saving time that evening, the Russell No. 3, a tug owned by the libelant, went up the creek past the boom to the Dietz Coal Pier about 350 feet farther up to get a coal barge. It turned around at the Dietz Pier and came out with the barge in tow at the rear. The tug was 76 feet long; her beam 21.5 feet. She was Diesel-powered with a four-blade bronze propeller 80 inches in diameter and 10 inches at the hub. The barge was a 500-ton coal boat about 27 feet wide. The tug's captain had picked up the respondent's boom with his searchlight on the trip up the creek, and knew exactly where it was. He testified that he had purposely pushed it in on the way up. When the tug was opposite the boom on her way out, a jar was felt and her engine stopped. The captain rang to stop, waited about half a minute and rang to go ahead. The propeller hit something quickly four or five times, and then the tug went on with no trouble except vibration which had not been present before. She was used two or three days and then dry-docked for repairs. The ends of her propeller blades were found to be badly twisted; her keel was broomed; some lead covering over the counter seams and over the lugs on the shoe was missing, and her rudder casting was broken.
Shearman Sterling, of New York City (Horace M. Gray and James A. Stevenson, Jr., both of New York City, of counsel), for appellant.
Alexander, Ash Jones, of New York City (Edward Ash, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The essential facts, so far as they are capable of exact knowledge, are not in dispute, except the width of the channel at the respondent's dock. As to that, we have accepted the testimony of the captain of the tug, who estimated it to be about 60 feet; the distance the logs extended into it about 25 feet; and the portion through which his tug could navigate about 35 feet. This leaves the fact of the identity of whatever the tug's propeller hit to be determined wholly by inference. We agree that it might have received the damage it sustained if it had hit one of the respondent's logs. We cannot agree that any satisfactory inference may be drawn that it did hit one. The logs were near by. That is all there is to point to one of them as the cause of the damage. There is nothing to show that one of them had broken loose or was outside the boom or that anything had taken place which would have made such a thing likely. The propeller sustained damage not caused by hitting a rock, since there was no rock there to be hit, but it does not follow that it hit one of the respondent's logs simply because the damage might have been sustained if it had hit one. Presumably driftwood might have done it, and it has not been made to appear that, because the propeller hit something, that that something was one of the respondent's logs. To be sure, there is nothing to show that there was any driftwood to do it, but the same weakness in proof applies to each of the respondent's logs, and the burden to prove the respondent liable rests upon the libelant. The Oakland (C.C.A.) 241 F. 66.
The duty the respondent owed the libelant was to secure its logs as carefully as a prudent man in like circumstances would have secured them. Panama R.R. Co. v. Napier Shipping Co., 166 U.S. 280, 17 S. Ct. 572, 41 L. Ed. 1004. There is no evidence to show that it did not do so. All the evidence on that subject indicates that it did. Each log had its separate line held by a staple driven into the log. The separate lines were made fast to a towline which was made fast to the wharf, and all were surrounded by a boom. We do not mean to indicate that, if the libelant had actually shown one of the respondent's logs to have been out in the channel and that the tug's propeller hit it, the burden of evidence, as distinguished from the ultimate burden of proof, would not have cast upon the respondent the duty of explaining how it got there without negligence; but leave that question open and go only to the point now required that, in the absence of proof that one of the respondent's logs was hit, it cannot be presumed that the respondent negligently permitted one of its logs to be where it could have been hit. This leaves the evidence as to the care and prudence of the respondent all to the effect that it was not negligent.
Decree reversed, and libel dismissed, with costs.