Luria Bros. & Co. v. Eastern Transp. Co., 338.
| Decision Date | 17 May 1937 |
| Docket Number | No. 338.,338. |
| Citation | 89 F.2d 900 |
| Parties | LURIA BROS. & CO., Inc., v. EASTERN TRANSP. CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for appellant.
Platow, Lyon & Stebbins, of New York City (Leo J. Curren, of New York City, of counsel), for libelant-appellee.
Lynch, Hagen & Atkins, of New York City (Henry C. Eidenbach, of New York City, of counsel), for other appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The libelant chartered the respondent's coastwise barge R. W. McDonald and loaded her with a cargo of scrap iron for transportation from Brooklyn, N. Y., to Florence, N. J. Under the charter party the respondent was a private carrier and the Harter Act (46 U.S.C.A. § 190 et seq.) was incorporated by express reference. The barge was in all respects seaworthy and properly manned, equipped, and supplied at the outset of the voyage, when taken in tow by the respondent's tug Montrose; about fifty miles short of her destination she foundered in the Delaware river under circumstances hereafter to be described. She was subsequently raised and the cargo was delivered to the libelant in damaged condition. The libel alleged a cause of action in contract for failure to deliver the cargo in like condition as when received. The respondent impleaded the owners and operators of the tug Arabian, charging that the latter had caused the barge to founder by improperly towing it through heavy ice. At the conclusion of the trial the impleaded respondents and the tug Arabian were exonerated. This appeal raises no question as to them. Eastern Transportation Company, the captain of its tug Montrose, and the master of its barge McDonald were found to be negligent. The appellant attacks these findings and makes the further point that such negligence, if any, was a fault in navigation or management, for which the carrier is excused by section 3 of the Harter Act (46 U.S.C.A. § 192).
The voyage proceeded without incident until Delaware breakwater was reached on the morning of January 23, 1935. There, two other barges in the tow, bound for Norfolk, were left at anchor, and the tug proceeded with the McDonald up the Delaware river. On reaching Reedy Point the tug captain received telephonic advices from the respondent's Philadelphia office that ice conditions further upstream were too bad to permit continuing on to Florence. He was instructed to anchor the barge where he and the barge master thought she could safely lie until she could be taken to destination. Accordingly, he put her on the flats south of the canal jetties at Reedy Point. She came to anchor about 12:30 a. m. on January 24th, and the tug departed at 9 o'clock in the morning to return to the barges left at Delaware breakwater. About 9 o'clock on the evening of the 24th a heavy field of ice came down on the ebb tide, causing the barge to drag her anchor. She drifted in the ice all night, and on the flood tide was carried upstream to Pea Patch Island, where she got into clear water. She arrived there about 11 o'clock on the morning of the 25th, dropped her anchor, and was able to ask persons on shore to telephone the respondent's office for help. Upon receiving this message, the respondent at once arranged with the impleaded Martin Company to send a tug to the assistance of the McDonald and another barge, the Hooper, anchored at the Reedy Point flats. The Martin tug Adriatic arrived in the evening of the 25th, but became disabled before it could lend aid to the McDonald. On the flood tide, pursuant to instructions of the Adriatic's master, the McDonald was allowed to drift upstream until she was in danger of grounding on a shoal, when the anchor was again dropped. Another message for help was transmitted to the respondent's Philadelphia office and another tug, the Arabian, was promptly sent to the rescue. The Arabian arrived at the scene about 11 a. m. on January 26th and...
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