Petition of Kinsman Transit Company

• Decision Date: 29 October 1964
• Docket Number: Dockets 28387-28392.,No. 238-243,238-243
• Parties: Petitions of The KINSMAN TRANSIT COMPANY, as Owner and Operator of the STEAMER MacGILVRAY SHIRAS, Appellant, and of Midland Steamship Line, Inc., as Owner and Operator of the STEAMER MICHAEL K. TEWKSBURY, their Engines, etc., Appellee, for Exoneration from or Limitation of Liability, City of Buffalo, Claimant-Respondent-Appellant, Kelley Island New York Corporation, et al., Claimants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

338 F.2d 708 (1964)

Petitions of The KINSMAN TRANSIT COMPANY, as Owner and Operator of the STEAMER MacGILVRAY SHIRAS, Appellant, and of

Midland Steamship Line, Inc., as Owner and Operator of the STEAMER MICHAEL K. TEWKSBURY, their Engines, etc., Appellee,

for Exoneration from or Limitation of Liability,

City of Buffalo, Claimant-Respondent-Appellant,

Kelley Island New York Corporation, et al., Claimants-Appellees.

Nos. 238-243, Dockets 28387-28392.

United States Court of Appeals Second Circuit.

Argued March 3, 1964.

Decided October 29, 1964.

As Modified on Denial of Petition for Rehearing December 1, 1964.

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Edward J. Desmond, Buffalo, N. Y., Elmer S. Stengel, Corp. Counsel, City of Buffalo (John E. Drury, Jr., Buffalo, N. Y., of counsel), for City of Buffalo.

David S. Jackson, Buffalo, N. Y. (Roy P. Ohlin, Buffalo, N. Y., Wilbur H. Hecht, John J. Sullivan, New York City, of counsel, Ohlin, Damon, Morey, Sawyer & Moot, Buffalo, N. Y., and Mendes & Mount, New York City on brief), for Continental Grain Co.

Lee C. Hinslea and Lucian Y. Ray, McCreary, Hinslea & Ray, Cleveland, Ohio (James P. Heffernan, Buffalo, N. Y., of counsel; Coffey, Heffernan & Harrison, Buffalo, N. Y., on brief), for Kinsman Transit Co.

John T. Jaeger, Johnson, Branand & Jaeger, Cleveland, Ohio (Robert Branand, Cleveland, Ohio, and Robert M. Hitchcock, Buffalo, N. Y., of counsel; Phillips, Mahoney, Lytle, Yorkey & Letchworth, Buffalo, N. Y., on brief), for Midland S.S. Line, Inc.

W. M. Connelly, Hamilton, Dobmeier, Connelly & Kirchgraber, Buffalo, N. Y., for Tomlinson Fleet and others.

Arthur E. Otten, Buffalo, N. Y., (Brennan & Brennan, Buffalo, N. Y., on brief), for Kelley Island New York Corp. and Moira C. McGrane.

Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.

As Modified on Denial of Petition for Rehearing of Continental Grain Co., December 1, 1964.

FRIENDLY, Circuit Judge:

We have here six appeals, 28 U.S.C. § 1292(a) (3), from an interlocutory decree in admiralty adjudicating liability. The litigation, in the District Court for the Western District of New York, arose out of a series of misadventures on a navigable portion of the Buffalo River during the night of January 21, 1959. The owners of two vessels petitioned for exoneration from or limitation of liability; numerous claimants appeared in these proceedings and also filed libels against the Continental Grain Company and the City of Buffalo, which filed cross-claims. The proceedings were consolidated for trial before Judge Burke. We shall summarize the facts as found by him:

The Buffalo River flows through Buffalo from east to west, with many turns and bends, until it empties into Lake Erie. Its navigable western portion is lined with docks, grain elevators, and industrial installations; during the winter, lake vessels tie up there pending resumption of navigation on the Great Lakes, without power and with only a shipkeeper aboard. About a mile from the mouth, the City of Buffalo maintains a lift bridge at Michigan Avenue. Thaws and rain frequently cause freshets to develop in the upper part of the river and its tributary, Cazenovia Creek; currents then range up to fifteen miles an hour and propel broken ice down the river, which sometimes overflows its banks.

On January 21, 1959, rain and thaw followed a period of freezing weather. The United States Weather Bureau issued appropriate warnings which were published and broadcast. Around 6 P.M. an ice jam that had formed in Cazenovia Creek disintegrated. Another ice jam formed just west of the junction of the creek and the river; it broke loose around 9 P.M.

The MacGilvray Shiras, owned by The Kinsman Transit Company, was moored at the dock of the Concrete Elevator, operated by Continental Grain Company, on the south side of the river about three miles upstream of the Michigan Avenue Bridge. She was loaded with grain owned by Continental. The berth, east of the main portion of the dock, was exposed in the sense that about 150' of the Shiras' forward end, pointing upstream, and 70' of her stern — a total of over half her length — projected beyond the dock. This left between her stem and the bank a space of water seventy-five feet wide where the ice and other debris could float in and accumulate. The position was the more hazardous in that the berth was just below a bend in the river, and the Shiras was on the inner bank. None of her anchors had been put out. From about 10 P.M. large chunks of ice and debris began to pile up between the Shiras' starboard bow and the bank; the pressure exerted by this mass on her starboard bow was augmented by the force of the current and of floating ice against her port quarter. The mooring lines began to part, and a "deadman," to which the No. 1 mooring cable had been attached, pulled out of the ground — the judge finding that it had not been properly constructed or inspected. About 10:40 P.M. the stern lines parted, and the Shiras drifted into the current. During the previous forty minutes, the shipkeeper took no action to ready the anchors by releasing the devil's claws; when he sought to drop them after the Shiras broke loose, he released the compressors with the claws still hooked in the chain so that the anchors jammed and could no longer be dropped. The trial judge reasonably found that if the anchors had dropped at that time, the Shiras would probably have fetched up at the hairpin bend just below the Concrete Elevator, and that in any case they would considerably have slowed her progress, the significance of which will shortly appear.

Careening stern first down the S-shaped river, the Shiras, at about 11 P.M., struck the bow of the Michael K. Tewksbury, owned by Midland Steamship Line, Inc. The Tewksbury was moored in a relatively protected area flush against the face of a dock on the outer bank just below a hairpin bend so that no opportunity was afforded for ice to build up between her port bow and the dock. Her shipkeeper had left around 5 P.M. and spent the evening watching television with a girl friend and her family. The collision caused the Tewksbury's mooring lines to part; she too drifted stern first down the river, followed by the Shiras. The collision caused damage to the Steamer Druckenmiller which was moored opposite the Tewksbury.

Thus far there was no substantial conflict in the testimony; as to what followed there was. Judge Burke found, and we accept his findings as soundly based, that at about 10:43 P.M., Goetz, the superintendent of the Concrete Elevator, telephoned Kruptavich, another employee of Continental, that the Shiras was adrift; Kruptavich called the Coast Guard, which called the city fire station on the river, which in turn warned the crew on the Michigan Avenue Bridge, this last call being made about 10:48 P.M. Not quite twenty minutes later the watchman at the elevator where the Tewksbury had been moored phoned the bridge crew to raise the bridge. Although not more than two minutes and ten seconds were needed to elevate the bridge to full height after traffic was stopped, assuming that the motor started promptly, the bridge was just being raised when, at 11:17 P.M., the Tewksbury crashed into its center. The bridge crew consisted of an operator and two tenders; a change of shift was scheduled for 11 P.M. The inference is rather strong, despite contrary testimony, that the operator on the earlier shift had not yet returned from a tavern when the telephone call from the fire station was received; that the operator on the second shift did not arrive until shortly before the call from the elevator where the Tewksbury had been moored; and that in consequence the brige was not raised until too late.

The first crash was followed by a second, when the south tower of the bridge fell. The Tewksbury grounded and stopped in the wreckage with her forward end resting against the stern of the Steamer Farr, which was moored on the south side of the river just above the bridge. The Shiras ended her journey with her stern against the Tewksbury and her bow against the north side of the river. So wedged, the two vessels substantially dammed the flow, causing water and ice to back up and flood installations on the banks with consequent damage as far as the Concrete Elevator, nearly three miles upstream. Two of the bridge crew suffered injuries. Later the north tower of the bridge collapsed, damaging adjacent property.

Judge Burke concluded that Continental and the Shiras had committed various faults discussed below; that the faults of the Shiras were without the privity or knowledge of her owner, thus entitling Kinsman to limit its liability,¹ 46 U.S.C. § 183; that the Tewksbury and her owner were entitled to exoneration; and that the City of Buffalo was at fault for failing to raise the Michigan Avenue Bridge. The City was not faulted for the manner in which it had constructed and maintained flood improvements on the river and on Cazenovia Creek, or for failing to dynamite the ice jams. For the damages sustained by the Tewksbury and the Druckenmiller in the collisions at the Standard Elevator dock, Judge Burke allowed those vessels to recover equally from Continental and from Kinsman, jointly and severally, subject however, to the latter's right to limit liability. He held the City, Continental and Kinsman equally liable jointly and severally (again subject to Kinsman's limitation of liability) for damages to persons and property sustained by all others as a result of the disaster at the bridge.² But, on the basis of the last clear chance rule, he held the City solely liable for damages sustained by the other tort-feasors, to wit, the Shiras and Continental as operator of the Concrete Elevator, and refused to allow recovery by the City against them.

The complaints as to the judge's determinations are so numerous that, in order to deal properly with the most serious ones and avoid inordinate length, w...