61 F.2d 767 (2nd Cir. 1932), 67, Sinram v. Pennsylvania R. Co.
|Citation:||61 F.2d 767|
|Party Name:||SINRAM et al. v. PENNSYLVANIA R. CO. (INSURANCE CO. OF NORTH AMERICA, Intervener).|
|Case Date:||November 14, 1932|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Appeal from the District Court of the United States for the Southern District of New York.
Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Chauncey I. Clark and Adrian J. O'Kane, both of New York City, of counsel), for Pennsylvania R. Co.
Single & Single, of New York City (Thomas H. Middleton, of New York City, of counsel), for Insurance Co. of North America.
Part, Lynch & Hagen, of New York City (Anthony V. Lynch, Jr., and Charles W. Hagen, both of New York City, of counsel), for Sinram Bros.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
L. HAND, Circuit Judge.
Sinram Brothers filed a libel in personam against the respondent for the sinking of their barge after a collision, which in tow of one of the respondent's tugs. The Insurance Company of North America was the underwriter of, and had paid the loss upon, a cargo of coal laden on the barge after her injury; it intervened in the suit pro interesse suo. We shall speak of the Sinram Brothers as the owner, and of the insurance company as the underwriter.
On January 28, 1928, the railroad's tug, Overbrook, picked up the owner's barge, Elmhurst, then light, in the East River and towed her to the end of Pier B, Jersey City, preparatory to taking her to South Amboy in a flotilla for a cargo of coal. At nine p. m. the tug, having gathered five other light barges, took them with the Elmhurst in tow, made up in two tiers of three each; the Elmhurst being the port barge in the second tier. At the stern of the middle barge in that tier hung the Mercer, another of the railroad's tugs. The story of the Elmhurst's bargee was that off Bedloe's Island a third tug of the railroad, the No. 35, the largest in its service, came alongside, struck the barge a heavy blow on her port quarter, nearly capsizing her, driving her forward against the barge ahead, and breaking some planks forward. The tug then made fast on her port quarter, lapping her some six to ten feet, and hanging on until the flotilla reached Snug Harbor, when she cast off and disappeared. There was a stiff northeast breeze at the time, which raised a sea; it was snowing hard and the weather was cold. While lying alongside, the No. 35 constantly chafed and hammered the barge, which, coupled with the original collision, started some planks at her stern. When the flotilla reached South Amboy, the bargee tried to learn whether his barge had been damaged, but her outside was covered with ice and he could find nothing. He had got there on the morning of the twenty-ninth, and lay light at the stakes till February second, when he was shifted to the chutes and took aboard four hundred and fifty-four tons of the underwriter's coal. Late on the evening of the third, or early on the morning of the fourth, he discovered her aleak and asked another tug of the respondent, the No. 33, to put her on the flats. Some hours later the tug came and did as he asked; apparently he was satisfied that she was safe, but soon after she sank.
The railroad's story was that the No. 35 came alongside the barge to put a deck hand aboard, made fast, and lay lapping the barge for a short time, but upon the protest of the bargee soon fell back, and took the Mercer's position at the tail of the middle barge in the second tier, where she remained till the flotilla reached Port Reading, when she dropped off. After the barge was raised, a survey discovered the damages as described, though how far caused by the collision, and how far due to the sinking, does not yet appear. The boat was very old and either her caulking in places had been reinforced by strands of rope, or she had been caulked with the rope itself. While the respondent for this and other reasons asserted that she was unseaworthy, the evidence was so much in conflict that we accept the finding that she was not. The judge believed the libellant's story in substance, both as to the original collision and the continued presence of the No. 35 alongside; also as to his excuse for not learning of the injuries and protesting against being loaded. He allowed full damages to both the owner and the underwriter.
The bargee's testimony as it reads in type is extremely unsatisfactory. He insisted that the flotilla had left Jersey City early on the morning of the twenty-ninth, though this was obviously untrue; and that the No. 35 had hung alongside him down the Bay, though the evidence was abundant that the Mercer gave place to her shortly after she came alongside at Bedloe's Island. Nevertheless the testimony of the master and the deck hand of the No. 35 does not expressly contradict him as to the original collision, and concededly the tug did come alongside, lap the barge by some six to ten feet, and put a line on board her. This limited dispute is between two witnesses on one side and one on the other, and in spite of the evident untruth of some of the bargee's story, we will not interfere with the finding that the tug struck the barge and broke her planks forward and aft. So far as any of
the injuries must depend upon the alleged hammering on the way down, we find for the respondent, though the issue can scarcely prove material. We have too often declared that the District Judge's determination as to the credibility of witness must prevail, and while we should on this record alone decide otherwise, and do so decide as to the position of the No. 35 en route, we will not dismiss the libel.
However, we cannot agree that the respondent is liable to the owner for the sinking. It is clear that the bargee thought that his barge had been injured; he did not suggest that the collision was trifling. On the contrary he says that he tried to examine her next day at South Amboy, but was unable to do so because of the ice. This was on the twenty-ninth, four days before she was loaded. He knew that she had been struck above the water line, and he should have considered that her injuries, if there were any, might not betray themselves by leaks while she was light. It does not appear that he went below to learn what he could by looking inside, though the planks on the quarter, being started, should have showed, and the cracks in the bow went all the way through. Be that as it may, if the weather prevented him from properly examining her, he should certainly have objected to loading her until he could, for she was not safe if her seams were open He did nothing of the sort, and gave the respondent no intimation that all...
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