The Kathryn B. Guinan
| Citation | 176 F. 301 |
| Decision Date | 07 January 1910 |
| Docket Number | 123. |
| Parties | THE KATHRYN B. GUINAN. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Alexander & Ash, for appellants.
James J. Macklin (De Lagnel Berier, of counsel), for appellee.
Before LACOMBE, WARD, and NOYES, Circuit Judges.
October 6, 1907, the scow Streeter with a deck load of brick was lying bow in on the south side of the pier at the foot of Fifty-Second street, North River, about 10 feet astern of the scow Guinan with a deck load of gravel, also lying bow in. The scows were about 100 feet in length and 32 feet in beam. At 7 a.m. the master of the Guinan was awakened by those on the boat ahead of him and he found 3 feet of water in her hold. Before anything could be done to relieve her she listed to port toward the pier and dumped part of her cargo, then listed to starboard and dumped the balance, and then, turning bottom up, jumped so as to land her starboard bow on the pier 4 feet above the water and her starboard quarter on the Streeter's starboard bow, causing her to sink. Such extraordinary behavior was hardly to be looked for, and yet something like it has occurred before, as may be seen from the cases of A Scow Without a Name, 7 Ben. 384, Fed. Cas. No 12,554; and The On The Level (D.C.) 128 F. 511.
The libelants contend that the claimant of the Guinan is responsible because he left her without a watchman during the night, who might have discovered the leak and pumped the scow out. But the master was on board, though asleep. There is no evidence of any custom to keep watchmen on boats lying in the slips of New York Harbor, and such a burden would be very onerous.
Cases cited by the libelants like The On The Level (D.C.) 128 F 511, The Lion, 1 Spr. 40, Fed. Cas. No. 2,786, and The Mary E. Cuff (D.C.) 84 F. 719, where vessels were left with no one on board in open waters and sometimes in the face of approaching storms, or like Campbell v Pennsylvania, 85 F. 462, 29 C.C.A. 268, which turned upon the question whether a line which rendered had been properly made fast, are quite unlike the one under consideration. There is nothing really to support the libelants' charge of negligence, except the presumption arising from the accident itself. It will not be useful to enter into a discussion of the doctrine of res ipsa loquitur. Giving it full effect in this case, it only established a prima facie case in favor of the libelants which we think the claimants fully met.
The proofs showed that the Guinan had been lying in the same berth for four days; that she drew scant 8 feet where there was 16 feet at mean low water; that she capsized within two hours of high tide; that she was but two years old, needed to be pumped out but twice a day, was so pumped, and was kept in good condition. We think that the trial judge was right in holding that the presumption was fully rebutted.
Decree affirmed, with costs of this court.
NOTE.-- The following is the opinion of Hough, District Judge, in the court below:
HOUGH District Judge. This libel alleges 'a cause of damage civil and maritime,' declares that the contact between the Streeter and the Guinan was a collision, and alleges that said collision arose because the Guinan was guilty of certain specified faults, which may all be...
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