New Jersey Shipbuilding & Dredging Co. v. Tracy Towing Line

• Decision Date: 04 March 1930
• Parties: NEW JERSEY SHIPBUILDING & DREDGING CO. v. TRACY TOWING LINE. THE MILDRED. THE MARGARET. THE THOMAS F. KEANE. THE MICHAEL TRACY.
• Court: U.S. District Court — Eastern District of New York

42 F.2d 1005 (1930)

NEW JERSEY SHIPBUILDING & DREDGING CO. v. TRACY TOWING LINE THE MILDRED THE MARGARET THE THOMAS F. KEANE THE MICHAEL TRACY.

District Court, E. D. New York.

March 4, 1930.

Alexander & Ash, of New York City (Edward Ash, of New York City, of counsel), for libelant.

Rumsey & Morgan, of New York City (J. T. Carpenter, of New York City, of counsel), for The Margaret.

Merrill, Rogers, Gifford & Woody, of New York City (William F. Shepard, of New York City, of counsel), for the Thomas F. Keane.

Macklin, Brown, Lenahan & Speer, of New York City (R. F. Lenahan, of New York City, of counsel), for The Tracy Towing Line.

INCH, District Judge.

Libelant, the owner of a dredge and a dumper scow, sued the coal barges Mildred, Margaret, and Keane and the tug Tracy and the latter's owner, the Tracy Towing Line, Inc., to recover damages arising from collisions between the scow and the barge Mildred, the dredge and the barges Keane and Margaret. No one seems to have appeared for the Mildred.

There was a previous suit and counter suit in the Southern District between owners of other vessels and the Mildred, Keane, and tug Tracy which brought out many of the same facts as in the present suit and resulted in a decree by Judge Coleman, 42 F.(2d) 1003, holding the tug Tracy solely responsible for the damage there found.

These suits were, however, between different parties than here. They also referred to a collision that occurred subsequent to the collisions here complained of. The proximate cause of same was found by Judge Coleman, and this would appear to be the same as is now claimed in this suit, to wit, the negligence of the tug Tracy. Both this suit and these other suits were questions of fact. While I am not aware of the proof in the other cases, except as indicated in the opinion of Judge Coleman, it is apparent that there has been testimony offered here by some of the claimants which was not offered in the other suits.

Therefore I cannot agree with libelant, who apparently argues that this previous decision in these other cases might relieve this court from careful consideration of all the present testimony. The well-known rule, Commercial Union v. Anglo Bank (C. C. A.) 10 F.(2d) 937, does not apply. Here the suit is between different parties. The accident was a different accident. The findings of fact here must rest on different and new testimony. The distinction is recognized under such conditions even as to questions of law. Mast, Foos & Co. v. Stover Co., 177 U. S. 485, 20 S. Ct. 708, 44 L. Ed. 856.

In any event, it is not a question of res judicata, but at most stare decisis. 34 C. J. § 1157. Southern R. Co. v. Clift, 260 U. S. 316-319, 43 S. Ct. 126, 67 L. Ed. 283, and likewise any law applied must depend on new findings of fact.

However, therefore, I may agree with the decision of Judge Coleman, I must consider all the testimony now introduced before me, particularly in view of the new testimony, and find the facts as this record alone before me indicates.

Accordingly, I find that about 9 o'clock on the night of February 16, 1926, there lay off the bulkhead dock of the Concord Coal Company, at about Seventy-Sixth street, East River, a flotilla of 10 barges. Some of them were loaded; some were light. This is an exceedingly narrow part of the East River. The tides, especially the flood tide, run exceedingly strong at this point, a circumstance well known to all competent tug captains. Joyce, the captain of the tug Tracy, testified, "That is where you get the full strength of the tide." The night was clear. A northwest wind of about an average of 30 miles an hour had been and was blowing. This flotilla was arranged in three tiers, of three boats in the front and rear tiers, while the middle tier had four boats.

It is as to this middle tier that we are solely interested.

This middle tier consisted of the following four boats, named in their order from the bulkhead, out into the river. The Bright Star, apparently loaded, was next to the bulk-head, then came the Mildred, a loaded boat, then the Margaret, a light boat, and finally the Keane, another light boat. The Keane was shorter and lower than her neighbor, the Margaret. It was impossible therefore for the master of the Keane to run any lines from his boat over to the bulkhead. Keane testifies: "If I had been alongside the loaded boats I could have managed to put lines out some way (to the dock) because they were lower than my boat."

This fact is both reasonable and probable and should not be overlooked in considering the duty of both this master and those of the tug Tracy which placed the Keane where she was.

The absence of anchors on some of these barges is immaterial in this case, as the proof plainly shows that no anchor could or would have prevented the accident.

We can now turn to the location of the other boats involved in the collision.

These consisted of the dredge No. 9, and a dumper scow 20. They were in the Hell Gate, a little north of Negro Point (Libellant's Exhibit 1).

The dredge was 145 feet long, 44 feet wide. She was anchored by anchors at bow and stern and had three spuds in position. She was properly there under a contract with the government.

Along the starboard side of this dredge was the dumper scow 20. She was 120 feet long, 38 feet wide. The bow of this scow was about 10 feet forward of the bow of the dredge. The usual lines ran from the scow to the dredge.

All regulation lights on both of these vessels were burning.

There is nothing to indicate any fault whatever on the part of either.

Having located the various boats, we now come to the accident.

According to Hendrickson, captain of the No. 9, about 9:30 that night, a drifting, loaded barge, which proved to be the Mildred, came up with the flood tide and collided with and sunk the dumper scow 20. The lines from the scow to the dredge were broken. The Mildred then continued "to drift up the river."

Shortly thereafter two more barges, the Keane and the Margaret, fast to each other, also drifted up and collided with the dredge, doing damage to that vessel.

Hendrickson testifies that: "The Keane was nearest to the dredge. The other (the Margaret) did not hit the dredge." These two barges stayed at the dredge until the tide turned and then drifted down the stream and away.

So far as the collisions are concerned, the proof shows that each of these three barges were helpless in the strong flood tide of Hell Gate and that there was nothing that could have been done to prevent them.

We must therefore search elsewhere, in order to fix the blame, if any, for the presence of these barges under such conditions.

The proximate cause is plainly discovered by proof of the careless manner in which the Keane had been tied up, by those in charge of the tug Tracy, to this middle tier of the flotilla already referred to.

Those of the tug Tracy, among other careless acts, negligently overloaded this middle tier. The Herbert S. Keller (D. C.) 19 F.(2d) 527; The William Guinan Howard (C. C. A.) 252 F. 85; The Mary Ethel (D C.) 290 F. 458, affirmed (C. C. A.) 5 F.(2d) 1013.

This is shown by the following facts:

The flotilla, which then consisted of three tiers of three boats each, had lain, with apparent safety, for several days at the place in question. During the afternoon of February 16, and while it was ebb tide, the tug Tracy brought up the barge Keane to this flotilla.

The narrow river, with its swift tides, the wind, the danger of leaving a light boat, such as the Keane, sticking outside, exposed to the full force of these elements, should have been and were plainly apparent to those in charge of the tug.

The tug was in charge of the mate, Young. Her captain, Joyce, was present but he states he was off watch. I gather from his testimony that he is rather anxious to have this understood, for he testifies: "Young was in charge not me. It was under his direction that she (the Keane) was made fast."

Both Young, this mate, and Joyce, the captain, show that they knew that the Margaret "was higher than the Keane."

The apparent danger therefore should have been duly considered by them, and due care used to see that the Keane did not endanger the flotilla, and was moored with reasonable safety. Cleary Bros. v. Port Reading R. Co. (C. C. A.) 29 F.(2d) 495.

Keane, the master of the Keane, saw the danger and protested. He says he didn't "want to lay outside the light boat." This protest was made when the mate of the Tracy first proceeded to tie up the Keane. Keane says he tried to stop the putting out of a line at first. However, the mate of the Tracy simply "pushed him up a little" opposite another light boat (the Margaret).

It is apparent that those in charge of the Tracy paid little attention either to the danger or the protests of Keane. The latter says: "I knew it was a bad place because it is a strong tide there. We were right out in the open. I made protest enough. He (the deckhand of the Tracy) had the line out before I knew it. I thought he was going to drop the light boat."

This last statement of Keane seems to be justified by what had occurred. The deck hand of the Tracy (who is not a witness, although efforts were made by counsel for Tracy to find him) had hurriedly put out a line from the bow cleat of the Keane to the off shore up river corner of the Margaret. He then told Keane to drop a line from the bow of his barge to the off shore corner of the outside boat in the tier just ahead.

It was this direction to put out a line to the tier immediately ahead which seems to me to indicate some justification for Keane's belief that this light boat was then to be taken out, which might have been done by subsequently dropping his bow line to the Margaret. This would have placed the Keane in a...