City of New York v. McAllister Brothers, Inc.
| Decision Date | 30 January 1962 |
| Docket Number | Docket 26983.,No. 192,192 |
| Citation | 299 F.2d 227 |
| Parties | The CITY OF NEW YORK, Libelant-Appellee, v. McALLISTER BROTHERS, INC., Respondent-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Christopher E. Heckman, New York City (Foley & Martin), New York City, for respondent-appellant.
Fred Iscol, New York City (Leo A. Larkin, Corporation Counsel of City of New York, Seymour B. Quel, New York City, of counsel), for libelant-appellee.
Before LUMBARD, Chief Judge, and CLARK and FRIENDLY, Circuit Judges.
On a fair, calm night, with the tide 2'4" below mean high water, respondent's tug, the Dorothy McAllister, towed the United States Navy Derrick Y.D. 209 into the span of the unoffending Brooklyn Bridge. The City of New York having brought a libel for the resulting damage in the Southern District of New York, 46 U.S.C.A. § 740, Judge Murphy, after a brief trial, held the City entitled to a decree. From this respondent appeals, 28 U.S.C. § 1292(a) (3). We affirm.
On the fateful evening, an ensign at the Brooklyn Navy Yard telephoned Carroll Towing Company to dispatch two tugs immediately to tow the Y.D. 209 to the Navy Yard from her position alongside an aircraft carrier in Gravesend Bay, — a voyage necessitating passage under the Brooklyn Bridge. Carroll, not having its own tugs available, transferred the commission to respondent, with the ensign's approval, as it had sometimes done in the past. Respondent sent the Dorothy McAllister to perform the towage and the A. J. McAllister to help. Arriving at Gravesend Bay, the captain of the Dorothy saw the Y.D. 209, which he knew had successfully made the passage under the Brooklyn Bridge on other occasions, with her boom at an undetermined angle and no one on board. He told the captain of a Navy tug lying alongside that the McAllister tugs had orders to tow the derrick to the Navy Yard; this elicited the response "Wait until I find out whether she is ready or not." Someone went from the Navy tug to the aircraft carrier and returned in about fifteen minutes; the Navy tug captain then announced the derrick was ready to tow. The journey from Gravesend Bay toward the Navy Yard was performed in a fashion concededly unexceptionable — with one exception. The angle of the boom was such that the derrick hit the center span of the Brooklyn Bridge, reaching a height 18'9" above the bottom.
Appellant criticizes Judge Murphy's statement "Tugs and tow, for the purposes of this case are treated as one vessel in motion * * *," as running counter to such decisions as The W. G. Mason, 142 F. 913 (2 Cir. 1905) and Pennsylvania R. Co. v. Eastern Transportation Co., 36 Del. (6 W.W.Harr.) 435, 178 A. 580 (1935). It may, indeed, be doubted whether this frequently used figure of speech contributes to correct decision; Mr. Justice Clifford pointed out some of the necessary distinctions a century ago, Sturgis v. Boyer, 65 U.S. (24 How.) 110, 121-122, 16 L.Ed. 591 (1860), see Gilmore and Black, The Law of Admiralty (1957), p. 425, and we agree...
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Rodriguez v. Compass Shipping Co. Ltd., 77 Civ. 3378 (RLC).
...practice of an industry, by itself, is not a complete defense to a charge of negligence. See, e. g., City of New York v. McAllister Brothers, Inc., 299 F.2d 227, 228 (2d Cir. 1962); Kane v. Branch Motor Express Co., 290 F.2d 503, 507 (2d Cir. 1961); Gulisano v. American Export Lines, Inc., ......
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Tebbs v. Baker-Whiteley Towing Co.
...Terminals v. S.S. Johannes Frans, 209 F.Supp. 705 (E. D.Pa., 1962). The Second Circuit is not so sure. City of New York v. McAllister Brothers, 299 F.2d 227 (2 Cir., 1962). See also Farrell Lines, Inc. v. Birkenstein, 207 F.Supp. 500, 505 (S.D.N.Y., 1962). In The Severance, 152 F.2d 916 (4 ......
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La Capria v. Compagnie Maritime Belge
...was a safe one. See Texas & Pac. Ry. Co. v. Behymer, 189 U. S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903); City of New York v. McAllister Bros., Inc., 299 F.2d 227 (2d Cir. 1962); Santomarco v. United States, 277 F.2d 255 (2d Cir.), cert. denied American Stevedores, Inc. v. United States, ......
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