Doherty v. Pennsylvania R. Co.

• Decision Date: 15 December 1920
• Docket Number: 74.,73
• Citation: 269 F. 959
• Parties: DOHERTY v. PENNSYLVANIA R. CO. DOHERTY et al. v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

269 F. 959

DOHERTY v. PENNSYLVANIA R. CO.

DOHERTY et al. v. SAME.

Nos. 73, 74.

United States Court of Appeals, Second Circuit.

December 15, 1920

Burlingham Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Charles E. Wythe, both of New York City, of counsel), for appellant.

Macklin Brown, Purdy & Van Wyck, of New York City (Pierre M. Brown of New York City, of counsel), for appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge.

These cases were tried together, and on appeal were heard together in this court, and now will be determined together in one opinion.

The libelant Mary F. Doherty was and is the owner of the barge Hercules, and the respondent was and is the owner of various steam tugs engaged in towing vessels between New York and South Amboy, N.J. It is complained that in April, 1917, the respondent agreed to safely tow the Hercules from New York to South Amboy, there to load the barge with a cargo of coal and then tow the same back to New York City, and that all shiftings of the barge were to be performed by the respondent; that pursuant to the contract one of the respondent's tugs, on April 4, 1917, took the Hercules in tow with other boats, at New York, the tow being made up in tiers of several boats abreast, and started for South Amboy; that on account of the condition of the weather the tug tied up the tow at Bayonne Stakes and remained there for a time, and then resumed the trip to South Amboy; that the wind was blowing very strong, from the eastward, and that storm signals were displayed from 10 a.m. of April 5, and on the arrival of the tow at South Amboy at 8 p.m. on that day; that the wind blew a gale for hours, and that the tug placed the Hercules at what is known as the Stakes, and that the rough sea caused the barge to pound against the other boats and barges lying at the stakes; that the tug left the Hercules pounding and unprotected in the heavy sea and wind that prevailed.

The following excerpt from the testimony shows how the Hercules was placed:

'Q. When you got to South Amboy, where was your boat placed? A. Over in the stakes.

'Q. Do you know how many boats were in the tow with you going down? A. There were about 25 or 30 boats.

'Q. They were all light, were they? A. They were all light boats.

'Q. They were placed at the light stakes at South Amboy? A. Yes; there were some more boats laying along there before we arrived there.

'Q. How were these boats placed along the stakes? A. In a tier.

'Q. Then next to the stakes were your boats lengthwise, or head on? A. No; side on.

'Q. There was a line of boats against the stakes, and other boats were made fast outside of them? A. Sure.

'Q. How many boats were made fast outside of the stakes and between your boat and the stakes? A. 10 or 12 boats.

'Q. Do you mean 10 or 12 tiers? A. Yes, sir.

'Q. Were there 10 or 12 rows of boats between the stakes and your boat? A. 10 or 12 boats in one tier right across the river.

'Q. Were those boats all evenly spaced, one outside of the other, or were they mixed up? A. They were laying in one tier, and they were even in there then, one outside of the other.

'Q. That was the first row of boats? A. That was the first row of boats.

'Q. Then there were boats outside of them? A. Yes; they were laying about 10 feet ahead of us; 10 or 12 feet between the tiers.'

It is alleged that as a result of this pounding against the other boats the Hercules was damaged, the lines parted, and the fenders on the barge were carried away. It is claimed that the damages which followed were due to the respondent's negligence. Damages were asked in the amount of $1,700. A decree has been entered in favor of the libelant in the amount of $1,724.87.

The libelants Mary F. Doherty and William Doherty, who were and are the owners of the barge Frances Doherty, complain that the respondent towed her from New York to South Amboy, where she arrived on April 4, 1917, and she was moored about in the center of Pier B. It appears that the respondent then began to load her with coal, and that on April 5, about two o'clock in the afternoon when she had received on board about 622 tons of coal, the respondent towed her to the end of the pier and there made her fast. At that time there were various other boats and barges lying across the face or end of the dock; one barge lying under the stern of the Doherty, the barges lying stern to stern. The respondent placed another barge outside the Doherty, so that it lapped on the Doherty and the barge under the Doherty's stern. At the time the wind was blowing very strong creating quite a sea, which caused the barges and boats to pound one another and against the face of the dock.

On the same evening of April 5, at 5 o'clock and again at 7:30 o'clock, the master in charge of the Doherty informed the respondent that harm was likely to result from the situation in which the barges were placed, and was informed that a tug would be telephoned for to remove the barge from her mooring; but no tug came and as the storm increased in intensity the master again, at 10:30 o'clock, protested and requested that his barge should be removed to a place of safety, and was again promised that it would be done. It was done that night, but not until after 11 o'clock, and not until after the Doherty had suffered extensive damage from the pounding she had received, and in the act of removing her she was struck a violent blow, which broke her rail. A decree has been entered in favor of the libelants in this case for $1,487.89.

It is said that, when the respondent safely towed the Hercules and the Doherty to their destination at South Amboy and furnished them with a usual mooring place, safe at the time of their mooring, the mutual relations existing between tug and barge ended then and there. Such an argument it is thought finds support in the dissenting opinion in The William Guinan Howard, 252 F. 85, 87, 164 C.C.A. 197. But there is a plain distinction between this case and that, as assumed in the dissenting opinion. In these cases the respondent was to take barges to South Amboy, load them with coal, and return them to New York City. The master of the Doherty and the master of the Hercules had nothing whatever to do with the movements of their respective boats from the time when respondent took them in tow until they were returned to New York. The movements of both barges during the whole intervening period were controlled by the respondent alone.

William H. Doherty, who, with his mother owns the Doherty, and whose mother is the owner of the Hercules, and who makes the arrangements with the respondent for taking these boats to South Amboy and for their return to New York with coal, testified as follows on the direct examination: 'Q. How did you make those arrangements, in order to get these boats down there and back again? A. I simply call up the Pennsylvania towing office and report the boats; I give the name of the boat and the location, where she is lying, and they take it to South Amboy for coal.

'Q. Is that all you have to do from the time the boat is reported until they return to New York? (Objected to.)

'Q. Well, is that all you did on this occasion? A. Yes; that is all I did on this occasion.

'Q. What is the method of paying for the towing of the boats down there and the return to New York? A. That is charged against the bill of lading, and it is deducted out of our freight bill then.

'Q. That is, it eventually comes out of you. It is paid by the Pennsylvania, and deducted from your bill of lading, and is taken out of your freight money? A. Yes.

'Q. Who does the trimming and loading of the boats down at the coal yard? A. The railroad company.

'Q. You have nothing to do with that? A. No, sir.

'Q. Do you have anything to do with the trimming of the boat while she is around the coal docks? A. No, sir; we report her in New York, and that is the last we do with her until she gets back here.

'Q. Until she gets back here? A. Yes.'

And on cross-examination he testified as follows:

'Q. Do I understand that in these...