Opinion
No. 280.
July 3, 1929.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Mott Haven Lighterage Company, owner of barge Jane E. McAndrews, to recover damages arising out of a collision between the Jane E. McAndrews and the tug Overbrook, belonging to the Pennsylvania Railroad Company. The owners of the Overbrook impleaded the tug Burro, which had the barge in tow at the time of the collision and belonged to Cornell Steamboat Company. From a final decree awarding damages to libelant against the Burro, and dismissing the libel against the Overbrook, claimant Cornell Steamboat Company appeals. Modified.
Libelant's barge, when in tow of the tug Burro, collided with the tug Overbrook in the waters just to the north of Blackwell's Island at an early hour in the morning of February 14, 1925. The tug Burro had eight light barges in tow, made up in four tiers of two barges each. Libelant's barge was the starboard boat in the last tier. Her stern projected about 30 or 40 feet further aft than the boat on her port side. The Burro had proceeded out of the Harlem River bound for Thirty-Seventh street, and when she had rounded Horn's Hook at Eighty-Ninth street, and was about 200 feet off the Manhattan shore, noticed the tug Overbrook on the easterly side of the river in line with the end of Blackwell's Island. According to the story of the Burro's witnesses, the tail of the latter's tow swung out eastwardly about 50 feet, because of the ebb tide from the Harlem River, but always kept within 200 or 300 feet of the Manhattan shore. The master of the Burro said that, when his tug was about at Eighty-Sixth street, he looked back and found his barges tailing straight behind him, but saw the Overbrook away out toward the westerly side of the river in collision with libelant's barge at the end of the tow. The proctors for the Burro attributed the collision to bad navigation by the Overbrook, in that she proceeded too close to the tow.
The Overbrook came up the East River along the easterly side of Blackwell's Island, bound for East Ninty-Sixth street. Her master said that he sighted the Burro's tow on his port bow when he was near the upper end of the island, that he at first saw both lights of the tug, which then passed him and went right down the river about 400 feet off the New York shore; that the tail of the tow was swinging toward Astoria; that he stopped her engines for about two minutes, when 300 or 400 feet above the end of Blackwell's Island, and then started them again and moved farther up in the direction of Mill Rock. The tow was still swinging, and when the tail got within 100 feet of the Overbrook the latter blew an alarm and reversed, but, though she had seen the tow begin to swing when 500 feet away from her, did not begin to go back on her engines until too late to avoid collision with libelant's barge. The proctors for the Overbrook attributed the collision to the strong set of the ebb tide toward Astoria, while the Burro's testimony was to the effect that the tide from Hell Gate would overcome the tide out of the Harlem River and make any set toward Astoria impossible.
The true version of what occurred at the time of the collision must depend on whether the set of the tide was toward New York or Astoria. The only witness who apparently had no connection with either party was Capt. Howell. He said that the tide within the area where the swing occurred set toward Astoria. This is thought to have been disproved by statements in the United States Coast and Geodetic Survey relating to Tides and Currents in New York Harbor. But the chart opposite page 140 shows a circle marked 64 practically midway between the south side of Mill Rock and Horn's Hook, where the ebb tide flows south 20° east with a velocity of 2.6 knots an hour. The same publication shows a point 62, between the northern end of Blackwell's Island and the nearest point on the Astoria shore, where the direction of the tide is south 15° east with a force of 1.6 knots per hour. It is true that at 63, a point against the Astoria shore and about opposite the place of the collision, the direction of the tide is 60° west with a strength of 3 knots, and at point 65 off the southeast end of Mill Rock the tide sets 70° west with a velocity of 4.2 knots. None of these positions however, was very close to the place of collision, and the configuration of the shore lines and the interposition of Mill Rock might produce tidal currents quite different in places not far distant from one another. We can reach no satisfactory conclusion from such data as to the direction of the tide at the place of collision.
The trial judge found that the ebb tide set strongly toward Astoria and occasioned the swing of the Burro's light tow. He held her solely in fault for failing to keep her barges in line, and excused the Overbrook for not backing sooner, because the tow swung more than was to have been reasonably anticipated.
Kirlin, Woolsey, Campbell, Hickox Keating, of New York City (Robert S. Erskine and Henry P. Elliott, both of New York City, of counsel), for appellant.
Burlingham, Veeder, Fearey, Clark Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for appellee Pennsylvania R. Co.
Macklin, Brown, Lenahan Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellee Mott Haven Lighterage Co.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
An experienced trial judge found that the tide set toward the Astoria shore at the place where the collision occurred. Howell, the only disinterested witness on the subject, was of the same opinion. We can see no reason for reaching another conclusion.
Appellant says that, even if the Overbrook's version of the set of the tide was correct, the swing of the Burro's tow was nevertheless not a fault. But we have held that tugs must keep their tows substantially in line, and, if without sufficient power to do this without aid, must secure helper tugs. The Aurora (C.C.A.) 258 F. 439; Winfield S. Cahill (C.C.A.) 258 F. 318; The Wrestler (C.C.A.) 232 F. 448. Appellant relies upon the recent decision of the Supreme Court in Charles Warner Co. v. The Gulftrade, 278 U.S. 85, 49 S. Ct. 45, 73 L. Ed. 195. But that case involved an overtaking situation in which the Gulftrade was bound to keep out of the way of a tow, the swing of which she had reason to anticipate. The Gulftrade was the burdened vessel. The overtaken vessel at most had only "to hold her course and speed so far as practicable" (page 89 of 278 U.S. [49 S. Ct. 45]). Here the Burro lacked power or ability to keep her tow from a wide sheer dangerous to other vessels navigating in the vicinity. Her sheer was a fault.
The appellant says that the Overbrook was at fault (a) for failing to keep a proper lookout; and (b) for not allowing a larger margin of clearance.
The first objection is without merit. There was a lookout in the person of a deckhand in the pilot house with the master. Both saw the Burro and her tow in plenty of time to avoid a collision. Even if the deckhand should have been forward, instead of in the pilot house, his failure to take that position in no way contributed to the accident. The Washington (C.C.A.) 241 F. 952.
We differ with the trial court as to the second objection. The master of the Overbrook, by his own admission, saw the tow swinging when 500 feet away. He waited until it was within 100 feet before taking any measures to avoid a collision. There was doubtless some distance within which he might assume that he was safe from the impact, even from an unusual sheer. But, while the question is one of degree, we hold that, when the Overbrook watched the tow swing through 400 out of the 500 feet of water separating the two vessels, she did not allow enough margin of clearance before beginning to back. Her delay in reversing was a fault which contributed to the collision.
It is further objected on behalf of the Burro that the court erred in refusing to admit in evidence a report of the collision made by the master of the Overbrook to her owners. But, whatever may have been the right of the appellant to offer the report, if a subpœna had been served for its production, so far as the record shows it was not in court, and we have no knowledge of its contents. In such circumstances, no error can be founded upon the ruling that it would be inadmissible. We have no basis for determining whether its contents would have tended to contradict the witness, or that the exclusion was prejudicial.
Finally, it is said that the proof of damages was inadequate. But we cannot say that libelant's witness as to the value of the barge had no experience in buying and selling barges and that his valuation of libelant's barge and her equipment were without legal basis. While the evidence was not very satisfactory, the commissioner was justified in adopting a value for the barge and her equipment intermediate between the estimates of the witnesses produced for the libelant and the claimant Cornell Steamboat Company.
The decree is modified, so as to divide the damages fixed by the court below between the Overbrook and the Burro.