The Mercer
| Decision Date | 25 January 1924 |
| Docket Number | 190. |
| Citation | 297 F. 981 |
| Parties | THE MERCER. THE WILLIAM E. CLEARY. |
| Court | U.S. Court of Appeals — Second Circuit |
Burlingham Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and George Hunter Merritt, both of New York City, of counsel), for appellant.
Macklin Brown & Van Wyck, of New York City (Horace L. Cheyney, of New York City, of counsel), for Red Star Towing Co.
This cause comes here on appeal from the United States District Court for the Eastern District of New York.
This is a suit in admiralty filed by the libelant as the owner of a steam tug Huntington, which is used for towing purposes in and about the Harbor of New York. The libel alleges that on December 22, 1920, the steam tug Mercer, proceeded against herein, had in tow William E. Cleary, and another barge, and was proceeding through Hell Gate with the tow, when the steam tug Mercer lost control of the tow, and the Mercer and the tow including the barge William E. Cleary were in danger of being carried ashore and badly damaged, when the libelant's steam tug Huntington went to the assistance of the Mercer and the William E. Cleary and succeeded in making a line fast to the tug and tow and in taking them to a place of safety, and it is further alleged, though on information and belief, that the engines of the Mercer were disabled and had it not been for the prompt and efficient services rendered by the Huntington serious damage would have been sustained by the steam tug Mercer and the barge William E Cleary.
The libelant claimed it was entitled to a salvage award and left the amount of it to be decided by the court.
The claimant put in an answer denying material allegations of the libel, admitting, however, the jurisdiction of the court, and asked that the libel be dismissed as against the William E Cleary, and that if the court found the libelant entitled to a decree that it be entered against the Mercer and its claimants. It alleged that the necessity for rendering services to the William E. Cleary was due to the fault and negligence of the Mercer, which had become helpless.
The Pennsylvania Railroad Company as owner and claimant of the Mercer also denied material allegations of the complaint. In its answer it claimed that such service as was rendered was a towage service, and that neither the Mercer nor the two barges were in any danger at any time during the service and the service was unsuccessful and inadequate and conferred no benefit on the Mercer or the barges.
The court below found that the service rendered was a valuable towing service, and it entered a decree against the steam tug Mercer, its claimant and stipulators, in the sum of $500 towage, together with costs, the whole amounting to $532.95.
From the decree of June 29, 1923, an appeal was taken.
Before ROGERS, MANTON, and MAYER, Circuit Judges.
ROGERS Circuit Judge (after stating the facts as above).
It appears that on December 22, 1920, the tug Mercer, with a loaded coal barge on each side, started from Newtown Creek at Hunter's Point with the intention of going up Harlem river as far as Ninety-Sixth street. One of the barges, the William E. Cleary, had on 1,273 tons of coal. The other barge was the O'Boyle Brothers, and was somewhat smaller than the William E. Cleary. When the tug got to a point in the Harlem river, off about Eighty-Sixth street, the tug Mercer became disabled and drifted from that point with its tow into Hell Gate over close to Pot's Cove. The tug and the barges were drifting, there being a strong ebb tide at the time which carried them off toward the Astoria Shore and toward the Steep Rocks. While the tug was in Hell Gate, the engine of the tug was shut down for about 15 minutes, the circulating pump having stopped because there was insufficient steam. In this situation the Mercer blew a distress signal. The captain of that tug was asked whether he blew 'danger signals.' He replied: 'Some people call them danger signals and some people call them attention whistles. ' Thereupon the court asked: ' To which he replied: 'Yes.'
The Huntington, a tug in the vicinity, at once responded, coming alongside. And a little later the tug Intrepid also came up. The Huntington went alongside of the Cleary, and later the Intrepid made fast alongside of the O'Boyle.
The captain of the tug Huntington testified that as his tug was proceeding through Hell Gate, his attention was called to the fact that the Mercer, with the two barges alongside, was in distress, and when he went up alongside of them the captain of the Mercer told him he was in trouble with his engines and asked him whether he would take him into the Harlem river. The following are excerpts from the testimony of the captain of the Huntington:
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