Deep Sea Tankers v. The Long Branch

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation258 F.2d 757
Docket NumberDockets 24439-24442.,No. 8-11,8-11
PartiesDEEP SEA TANKERS, Limited, in its own behalf, as owner of THE s/t RINCON HILLS, and as bailee of the cargo laden thereon, and Shell Oil Company, Incorporated, as charterer of said vessel, Libelants-Appellants, v. THE steamtug LONG BRANCH, the Railway Carfloats THE NO. 61 and THE NO. 56, Central Railroad Company of New Jersey, the steamtugs THE AJAX and THE BJAX, the sand barges THE A, THE B, and THE C, and Metropolitan Sand & Gravel Corporation, Respondents-Appellees. Petition of the CENTRAL RAILROAD COMPANY of New Jersey, as owner of the steamtug Long Branch for exoneration from or limitation of liability. Petition of the CENTRAL RAILROAD COMPANY of New Jersey, as owner of the carfloat known and designated as THE CRR OF NJ NO. 56, for exoneration from or limitation of liability. Petition of the CENTRAL RAILROAD COMPANY of New Jersey, as owner of the carfloat known and designated as THE CRR OF NJ NO. 61, for exoneration from or limitation of liability.
Decision Date14 July 1958

COPYRIGHT MATERIAL OMITTED

Charles S. Haight, New York City (Robert M. Julian, Gordon W. Paulsen, Richard G. Ashworth and Haight, Gardner, Poor & Havens, New York City, on the brief), for libelants-appellants.

Leo F. Hanan, New York City (Charles J. Carroll, Jr., and Machlin, Speer, Hanan & McKernan, New York City, on the brief), for respondent-appellee Metropolitan Sand & Gravel Corp.

Gerald J. McKernan, New York City (Vincent E. McGowan, New York City, on the brief), for respondent-appellee Central R. Co. of New Jersey.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

On November 26, 1951, shortly after twelve o'clock noon, the "Rincon Hills," a Canadian tanker, grounded on Dimond Reef, off Governors Island in New York Harbor, and the damage to the ship and cargo is said to exceed one million dollars. Deep Sea Tankers, Limited, as owner of the "Rincon Hills" and bailee of her cargo, and Shell Oil Company, Incorporated, as charterer, within a few days filed a libel against certain tugs and tows of Central Railroad Company of New Jersey and Metropolitan Sand & Gravel Corporation, and against the Railroad Company and Metropolitan, asserting liability for the grounding because of alleged crowding and interference with the navigation of the "Rincon Hills" as she passed along the East River Range for deep draft vessels in her course up the East River. Three proceedings for exoneration from or limitation of liability were then brought by the Railroad Company on behalf of her tug and two carfloats; Metropolitan answered the libel of Deep Sea Tankers, and in the answer included a prayer for relief by way of limitation of liability to the value of Metropolitan's interest in her tug and three sand scows, in the event that they should not be exonerated. There was no separate limitation proceeding initiated by Metropolitan. The above described causes, together with another not involved on this appeal, were consolidated and tried together before Judge Goddard who died on August 26, 1955, after the conclusion of the trial but before the submission of briefs or other argument by counsel. It was stipulated that the case would be submitted to Judge Clancy on the trial record made before Judge Goddard and, upon this record and the briefs of counsel, but without oral argument, Judge Clancy found the "Rincon Hills" solely at fault, exonerated the two tugs and tows and dismissed the libel. This appeal by libelants followed and, on motion of appellees, we have already held that Judge Goddard's trial notes formed no part of the trial record stipulated to be considered by Judge Clancy and hence are not part of the record now before us. 2 Cir., 242 F.2d 433.

Since the opinion and findings below are based upon the cold record alone, without the benefit of seeing and hearing the numerous witnesses who testified before Judge Goddard, and, as this Court has noted, "we have an eventual responsibility for the facts as well as for the law," The Bellhaven, 2 Cir., 72 F.2d 206, 209; Thorne, Neale & Co. v. Reading Co., 2 Cir., 87 F.2d 694, 696; see also The Seeandbee, 6 Cir., 102 F.2d 577, 581, we have carefully read and studied the entire transcript of 6793 pages and the 196 exhibits and have made new findings of fact in accordance with the clear weight of the evidence. Because of the unusual circumstances to which reference has just been made, we shall set forth our findings in considerable detail.

A bird's eye view of the area within which the tanker and the tugs and tows were proceeding to their respective destinations is given by Chart 369 of New York Harbor. The "Rincon Hills" had left her anchorage at Quarantine in the Narrows, bound for 138th Street, East River; her intended course was through the Upper Bay, past Governors Island, along the East River Range for deep draft vessels, past Dimond Reef and thence up the East River. The Railroad steam tug "Long Branch" and the two carfloats were following and gradually overtaking the Metropolitan diesel tug with three fully loaded sand scows as they passed under the Brooklyn Bridge down the East River; the destination of the Railroad flotilla was the yards in Jersey City, New Jersey, in a general westerly direction from the Battery, and that of the sand tow was a meeting place with another Metropolitan tug off the Battery, where one of the three sand scows was to be transferred to the other Metropolitan tug. A seemingly wide expanse of open water between the Battery and Governors Island, where small craft may go at will, is disclosed by Chart 369 to be in fact an exceedingly narrow passage for vessels of deep draft. Dimond Reef, in 24 to 27 feet of water, juts out like a sore thumb and the East River Range, with a steady 40 feet of water, is obviously designed as an indispensable aid to navigation for seagoing vessels as they proceed up the East River. In terms of fairway for such vessels, as they steam up and down stream, there is little more than 325 yards of deep water between the Range and the relatively shoal area in the neighborhood of the piers and ferry slips in the vicinity of the Battery. The Governors Island Ferry, the Ellis Island Ferry and the Staten Island Ferry all operate across the westerly end of the Range or thereabouts and they as well as most small craft are readily maneuverable and can quickly get out of the way of large steamers or tankers. The two tows involved in this case, however, as will shortly appear, were huge, slow-moving, cumbersome flotillas and it requires little argument to demonstrate that they would constitute a substantial menace to the navigation of large vessels in the vicinity of Dimond Reef, especially on an ebb tide, unless kept clear of the Range.

The "Rincon Hills" was a fully loaded turbo-electric tanker of 10,653 gross tons, 523.5 feet in length and 68.2 feet abeam, drawing 29.8 feet of water forward and 29.9 aft.

The diesel tug "Metropolitan No. 2," of 650 horsepower and 144 gross tons, was 80.6 feet long, beam 23 feet, depth 9.6 feet; the hawser connecting her with the sand scows was 12 to 15 fathoms in length; the scows C-G 202, C-G 150 and C-G 104, respectively 112, 113.4 and 113.3 feet long, fully loaded, were made up in tandem and "fast up close to each other" with hawsers and cross lines — a flotilla of about 500 feet overall. The other dimensions of the sand scows were: C-G 202, 320 gross tons, beam 33.1, depth 8.8; C-G 150, 308 gross tons, beam 32 feet, depth 8.9 feet; C-G 104, 327 gross tons, beam 32 feet, depth 9.4.

The steam tug "Long Branch," of 950 horsepower and 229 gross tons, was 104.2 feet long, beam 25.7, depth 14.2. The carfloats Central 56 and Central 61 were of identical dimensions and of steel construction, 291 feet long, beam 40 feet, depth 10.6 feet. Each was a 3-track float, with a capacity of 17 freight cars. There were two empty coal cars and one loaded freight car on one of the floats, the other was light. The floats were on either side of the "Long Branch," all three tightly lashed together, with the bows of the floats brought nearly together ahead of the stem of the "Long Branch," which forced out the sterns of the floats fanwise. There are certain minor discrepancies and contradictions in the record respecting some of the figures, but they are substantially accurate. The sand scows and the carfloats were passive instruments without propulsion equipment of any kind.

At this point we think it will be helpful to separate the facts we deem beyond all reasonable doubt established by the record, so that the more controversial features of the case may be discussed against what we consider to be an unassailable background.

(1) The "Rincon Hills" sounded a single whistle blast, followed by the danger signal of four or five short blasts; and there was no response to either of these signals by either of the two tugs.

(2) As the two tows proceeded downstream the Railroad carfloats gradually came closer and closer to the sand tow, intending to pass to port of the sand tow; and the carfloats did pass to port of the sand tow, the actual passing taking place after the carfloats went under the bow of the "Rincon Hills."

(3) The stem of the "Rincon Hills" barely missed collision with the carfloats as they crossed her bow.

(4) It was clear weather, with excellent visibility and a fresh westerly wind; the current was running on the ebb a full knot and a half in the direction of Dimond Reef, a fact which the masters of the two tugs did not take into consideration, as it was just about dead low water at the Battery and the two masters of the tugs, who knew it was about low tide, were not aware of the fact that the current continued to run on the ebb well over an hour after low water at the Battery.

(5) Just as or immediately after the carfloats crossed the tanker's bow the pilot gave...

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