O'Donnell Transp. Co. v. M. & J. TRACY
| Decision Date | 10 July 1945 |
| Docket Number | No. 354.,354. |
| Citation | 150 F.2d 735 |
| Parties | O'DONNELL TRANSP. CO., Inc., v. M. & J. TRACY, Inc. THE RENO. THE ROSE REICHERT. |
| Court | U.S. Court of Appeals — Second Circuit |
Mahar & Mason, of New York City (Frank C. Mason, of New York City, of counsel), for appellant Reichert Towing Line, Inc., claimant of the Rose Reichert.
Purdy & Lamb, of New York City (Edmund F. Lamb, of New York City, of counsel), for O'Donnell Transp. Co., Inc., libellant-appellee.
Macklin, Brown, Lenahan & Speer, of New York City (Leo F. Hanan, of New York City, of counsel), for M. & J. Tracy, Inc., respondent-appellee.
Dow & Symmers, of New York City (Joseph M. Brush, of New York City, of counsel), for Public Fuel Service, Inc., respondent-appellee.
Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
The libellant, the charterer and operator of the barge Reno, entered into an oral subcharter with M. & J. Tracy, Inc., in the usual harbor charter form, whereby Tracy agreed to receive the Reno on charter at a daily rate of hire until Tracy should return her light within the limits of the New York Harbor in as good condition as when received, ordinary wear and tear excepted. When the barge was delivered to Tracy by the libellant about December 21, 1942, she was tight, strong and in all respects seaworthy, but when finally returned to libellant was damaged as a result of alleged lack of care on the part of Tracy. The latter impleaded Public Fuel Service, Inc., and the tug Rose Reichert, and offered evidence showing that the tug had caused the Reno to be delivered at the dock of Public Fuel Service, Inc. at 144th Street; that Public Fuel Service, Inc., had caused the Reno to be moved by the tug from 144th Street to a dock at 147th Street and the Harlem River, and that in moving her the tug had negligently caused ice to be forced through one of her planks so that she filled with water and sank. The Rose Reichert was hired to do the towing by Public Fuel Service, Inc. The latter as consignee of the cargo of coal laden on the Reno paid Tracy so much a ton to deliver the coal at the dock at 144th Street.
The bargee of the Reno testified that the tug in attempting to move the Reno from the consignee's dock at 144th Street where she lay inside of two other barges and in order to tow her to 147th Street and the Harlem River jammed the port stern of the Reno against one of these barges known as The McLain and caused ice between The McLain and the stern of the Reno to be crushed against the latter. He said that he heard ice crushing against the side of the Reno as she "was being broken out from the 144th Street dock." He testified that he had sounded her at about 6:30 A.M. on the day of the accident and just before the tug started to pull her away from the 144th Street dock and that he had found only 5 inches of water in her, or just the same amount as a sounding taken the night before had indicated. When she arrived at 147th Street, he sounded her again at about 9 A.M., with the same result as at 6:30 A.M., and then left the vessel to go ashore for a time on his own business. On returning to her at about 1:30 in the afternoon he testified that he found her down at the stern and about 7 feet of water in her hold. He immediately started her pumps running and got a tugboat to put a siphon in her but was unable to prevent her from sinking about two hours later. When she was raised, a jagged hole was found below the deck at the extreme port side of the stern located in the ninth and tenth planks about 18 inches long and 8 inches wide. The libellant claims that ice which was crushed into the hull of the barge by the rough and negligent manoeuvring of the tug filled the hole and remained there until the tide changed and floated it out. This interpretation of the cause of the accident is one which the district court adopted and, in our opinion, rests on a more likely theory than the suggested alternative that floating ice in a tide no swifter than four miles per hour should have crushed into the barge as she was towed up to 147th Street, or lay at the 147th Street dock after being left there. It is warranted by the crushing sound of ice heard by the bargee when the tug pushed the McLain against the Reno and the rubbing of the McLain against the Reno would seem to have involved a much heavier impact than that from ice floating down the Harlem River in the tide. It may be argued that the ice which is believed to have punctured the hull and thus to have filled the hole so that water could not enter could not have remained there for many hours before the barge began to leak because it would have melted, but we have proof that the ice which was crushed against the barge was the most likely cause of the puncture of the hull. In these circumstances we think that the length of time during which the ice was likely to remain in place without enabling water to enter was a question for the trier of the facts. No other reasonable explanation of the injury was indicated by the evidence than from the crushing of ice while the barge was being moved from the 144th Street dock; the hole made was below the water line where it was not visible prior to the time the boat was raised and the sounding by the bargee at about 9 A.M. showed that no water was then entering. The...
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