Petterson Lighterage & T. Corp. v. New York Central R. Co.

• Decision Date: 10 March 1942
• Docket Number: No. 176.,176.
• Parties: PETTERSON LIGHTERAGE & TOWING CORPORATION v. NEW YORK CENTRAL R. CO.
• Court: U.S. Court of Appeals — Second Circuit

126 F.2d 992 (1942)

PETTERSON LIGHTERAGE & TOWING CORPORATION v. NEW YORK CENTRAL R. CO.

No. 176.

Circuit Court of Appeals, Second Circuit.

March 10, 1942.

Kenneth O. Mott-Smith and Jacob Aronson, both of New York City, for appellant.

Robert S. Erskine and Kirlin, Campbell, Hickox, Keating & McGrann, all of New York City (John F. Gerity, of New York City, of counsel), for appellee.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a decree in the admiralty holding the New York Central tug "No. 32" solely liable for a collision between a loaded car float which she had in tow, and the tug "Bon" and a tanker which the "Bon" had in tow. The collision was in the East River off Pier 33 on the Manhattan shore; it took place after dark at about ten forty-five on the evening of July 30. The "No. 32" went into the Manhattan slip between Piers 34 and 35, picked up two car floats, one on either hand, and began to back out. Being bound for New Jersey, what she had in mind was to let the ebb — then at its full strength — carry down the stern of the tow as it emerged until it was parallel with the thread of the stream, and then to go ahead under a right rudder, turning to starboard and so downstream. The "Bon" with the tanker on her port hand was coming down the river on the tide; the forward end of the "No. 32's" starboard float struck and carried away her pilot house and by forcing her against the tanker, injured that vessel and did further damage to the "Bon" herself. Although the critical questions are in dispute, many of the facts are agreed upon. A Pennsylvania tow passed the slip as the "No. 32" was backing out, causing her to pause until it had cleared; and the "No. 32" did not see the "Bon" till it had done so. The "Bon" too did not make out the "No. 32" and her tow, until the Pennsylvania tow had crossed beyond the line of vision between them. At some time after the "Bon" saw the "No. 32" she blew her two blasts and put her rudder left, seeking to go over towards the Brooklyn shore. She was at once met by a single blast from the "Coney Island," a tanker coming up about 150 feet off the Brooklyn pier ends. The "Bon" answered this signal with one blast, and at once put back her helm; her two helm movements probably caused very little deviation from her original course. The "No. 32" answered the "Bon's" double blast by a double blast, but continued to swing to starboard, her explanation for this being that, when she got the "Bon's" signal, she was already headed too far to right of midstream to check her swing. Neither vessel had a look-out in the pilot house or at the bows; in each case the deck-hand ordinarily detailed for that purpose was engaged elsewhere.

The turning point in the case is how far from the Manhattan shore the contact took place. The East River is about 1,200 feet wide at the locus in quo and the judge found that the bows of the "No. 32's" float were about in midstream — "at least 575 feet off the New York piers." Since the floats were by that time headed substantially straight across stream and were about 330 feet long, their sterns must have been some 250 feet from the pier-ends. We do not understand that the "No. 32" attempts to justify that position; but it is not of the slightest importance whether or not she does. Although her navigation was proper if it had been carried out reasonably close to shore, obviously it was inexcusable to take up half the river. The situation in The Fort St. George, 2 Cir., 27 F.2d 788, was so plainly different as to require no discussion. Moreover, the judge has found that when the "No. 32" saw the "Bon" and answered her signal she had not already swung so far to starboard that she could not check the swing by going forward under a left rudder. If that finding also should stand, obviously she was guilty of a second fault: having agreed to a starboard passing she did not do her duty. As to the faults of the "Bon" assuming she was in midstream, we can see none unless it be that, having blown a two blast signal, she did not keep on towards the "Coney Island" for a longer time, so as to give her a narrower berth than 350 feet. It is a little hard to be sure whether the "Bon" blew at once on seeing the "No. 32's" green light, but she must have seen the red light soon after, as she says she did, and it was certainly natural then to put her rudder left, even though a starboard passing presupposes that the vessels will clear without change of heading. It is probably true that she could have safely kept her rudder left longer than she did, and it is possible, perhaps likely, that if she had, she would have escaped. Nevertheless, we are not disposed to charge it as a fault against her that she did not. Faced at night with such unwarranted navigation as the "No. 32's," and warned — for it must be taken as a warning — by the "Coney Island" that her course was leading into the "Coney Island's" water, what was she to do? The result of an undisturbed study of all the facts as we now know them is not a fair standard to apply to her master; under familiar principles the "No. 32," which had so inexcusably forced the sudden choice upon her, is in no position to demand a perfect handling of so trying a situation. The City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84. Both vessels were without lookouts at the time, but we are satisfied that in the case of neither did that have anything to do with the collision. Thus, as we have said, the case depends upon the place of collision, as it often does.

The testimony was in the usual conflict, though it is not to be ignored that the master of the "No. 32" — whom incidentally the judge did not credit anyway — swore before the Inspectors that the bows of his floats had reached, or had nearly reached, midstream. As to the probabilities, there are some on either side. On the one hand, it is strange that the "No. 32" had got herself so much further from the pier-ends than was necessary; the most reasonable explanation is that the master was inexperienced. On the other hand, it is unlikely for two reasons that the "Bon" should have been only 400 feet from the Manhattan piers: she would want to make use of the full strength of the ebb, and she would hardly have at once turned back at the "Coney Island's" signal, if there had been 600 feet between their courses. However, it is not important how we should have decided the issue on the cold record and without the benefit of the judge's finding. Even before the promulgation of Admiralty Rule 46½ in June, 1930, 28 U.S.C.A. following section 723 (281 U.S. 773) the decisions were legion that when a judge had seen and heard the witnesses his conclusions would prevail unless clearly wrong. We had repeatedly so held. The Jersey City, 2 Cir., 51 F. 527. The Albany, 2 Cir., 81 F. 966, 968 (semble); The A. G. Brower, 2 Cir., 220 F. 648; The F. B. Squire, 2 Cir., 248 F. 469; Donovan v. New York Trap Rock Co., 2 Cir., 271 F. 308; The Perry Setzer, 2 Cir., 299 F. 586; United States Mexican Oil Corporation v. Pennsylvania R. Co., 2 Cir., 20 F.2d 385; The James McWilliams, 2 Cir., 42 F.2d 130; The Cullen No. 32, 2 Cir., 62 F.2d 68. And when the question came up after Rule 46½ was passed, express findings were naturally accorded the same finality as implicit findings had been given before. Lillig v. Union Sulphur Co., 9 Cir., 87 F.2d 277; S. S. Berwindglen, 1 Cir., 88 F.2d 125; Eastern Tar Products Corp. v. Chesapeake Oil Transport Co., 4 Cir., 101 F.2d 30; City of Cleveland v. McIver, 6 Cir., 109 F.2d 69; Commercial Molasses Corp. v. New York Tank B. Corp., 2 Cir., 114 F.2d 248, 250; The S. C. L. No. 9, 3 Cir., 114 F.2d 964; The S. S. Bellatrix, 3 Cir., 114 F.2d 1004; McAllister Bros. v. Pennsylvania R. R. Co., 2 Cir., 118 F.2d 45; Johnson v. Andrus, 2 Cir., 119 F.2d 287; United States Gypsum Co. v. Conners Marine Co., 2 Cir., 119 F.2d 689.

Formally, findings in the district courts were, it is true, an innovation in admiralty procedure in 1930, but in substance they were very old. During the period between 1789 and 1803, § 21 of the Judiciary Act, 1 St.L. 83, gave the right of appeal to the circuit court from decrees in admiralty of the district court where the amount was over $300; between $50 and $300 a writ of error alone was available (§ 22). Wiscart v. D'Auchy, 3 Dall. 321, 1 L.Ed. 619. But the Act of 1803, 2 St.L. at L. 244, changed this so that until 1875 all decrees were reëxaminable on the facts in the circuit court and indeed new evidence could be admitted. By § 1 of the Act of 1875, 18 St.L. 315, the circuit court was required to make findings of fact for use upon appeals to the Supreme Court, whose review was confined to questions of law; but the review upon appeal to the circuit court from the district court remained unchanged. The Act of 1891 establishing circuit courts of appeal, 26 St.L. 826, transferred to them the jurisdiction of the Supreme Court over appeals in admiralty; and we held in Munson S. S. Line v. Miramar S. S. Co., 2 Cir., 167 F. 960, that it repealed the provisions for findings of fact without imposing any similar duty on the district court, although its decisions on the facts continued to be open to review as they had been by the circuit court. Certainly no one has doubted since 1891 that the circuit courts of appeals have power to review the facts; but so they have in all other causes tried to a judge, and for that matter in causes tried to a jury. The question is not of the existence of such a power but of its limits. We are not entirely clear that the Ninth Circuit in The Ernest H. Meyer, 84 F.2d 496, meant to hold that upon admiralty appeals it had a broader power than it has under Rule 52(a), Federal Rules of Civil Procedure; but if so, we cannot agree. Much confusion has arisen, as we apprehend it, from the varying language which judges have used to describe what has now become the rubric of Rule 52(a). As...