EMPIRE-PARK SQ. LBR. CO. v. MANHATTAN LIGHTER. CORP.

• Decision Date: 13 February 1958
• Docket Number: Docket 24615.,No. 153,153
• Citation: 252 F.2d 165
• Parties: EMPIRE-PARK SQUARE LUMBER COMPANY, Libellant-Appellee, v. MANHATTAN LIGHTERAGE CORPORATION, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

252 F.2d 165 (1958)

EMPIRE-PARK SQUARE LUMBER COMPANY, Libellant-Appellee, v. MANHATTAN LIGHTERAGE CORPORATION, Respondent-Appellant.

No. 153, Docket 24615.

United States Court of Appeals Second Circuit.

Argued January 16, 17, 1958.

Decided February 13, 1958.

Burlingham, Hupper & Kennedy, New York City (Stanley R. Wright, New York City, of counsel), for appellant Manhattan Lighterage Corp.

Bigham, Englar, Jones & Houston, New York City (Owen C. Torrey, Jr., New York City, of counsel), for appellee.

Before MEDINA and MOORE, Circuit Judges, and GALSTON, District Judge.

GALSTON, District Judge.

This is an appeal from an interlocutory decree dated February 28, 1957, determining that libellant recover from respondent for a partial loss of and damages to a cargo of lumber.

In March of 1954, Manhattan Lighterage Company contracted with appellee Empire-Park Square Lumber Company, to transport a quantity of Empire's lumber from Port Newark, New Jersey, to Empire's yard on Newtown Creek, Brooklyn, New York. On March 16, 1954, the lumber was loaded aboard Manhattan's lighter, the "Ambassador," and at about 4:30 or 5:00 a. m., Manhattan's tug arrived at Empire's yard on Newtown Creek with the "Ambassador" and another lighter, the "Searsport."

Under the direction of the master of the tug, the "Searsport" was made fast to the bulkhead and the "Ambassador" was made fast to the offshore side of the "Searsport." So secured, the two lighters, moored side by side, occupied 68 feet of a waterway, which at that point is only 160 feet wide from bulkhead to bulkhead. The tug then departed leaving both lighters unattended until about 7:00 a. m., at which time the bargees reported for work. At that time the "Ambassador" was sinking, and in spite of the measures taken to try to save the lighter, she soon sank.

The condition of the lighter after it was raised was such as to lead to the conclusion that it had been squeezed; that is, that a passing vessel had come in contact with the port side of the "Ambassador" causing a fissure to open through which the leak occurred.

The Trial Court found the facts as noted above, except that there was no specific finding that the contact had been on the port side, and also found that the sinking of the vessel "Ambassador" was caused by the fissure occasioned either solely by the squeeze or by a combination of a squeeze and the generally poor condition of the lighter. The Trial Court found further that the berthing of the "Ambassador," extending out into the channel where there was increased danger of collision by passing vessels, was unreasonable, especially considering the fact that there was available a berth directly alongside the dock and that the lighter was loaded with relatively valuable cargo.

The "Ambassador" was moored with her starboard side to the port side of the "Searsport," so that the port side of the "Ambassador" was outboard. Both appellant and appellee offered evidence showing that there had been an indentation along the port side of the "Ambassador" caused by the squeeze. The appellee's expert testified that there was an indented area covering a large part of the port side of the vessel with a depth of from 2½ to 3 inches, and that in his opinion this indentation was caused by the hull of a passing tug. Appellant's marine superintendent testified similarly that he noted a dent along a fairly long area of the port side. This indentation must necessarily have been caused by contact with another vessel. Testimony was elicited that passing driftwood would not cause any such indentation.

The captain of the tug testified that the "Ambassador" could have been docked at the end of the "Searsport" instead of with one vessel outboard of the other. The captain of the "Ambassador" agreed that it would have been a safer spot if the "Ambassador" had been at the end of the "Searsport." Appellee's expert testified that the "Ambassador" should not have been left unattended in its exposed position.

There was testimony, and the court below found, that Newtown Creek in the area of Bossert Terminal is a well traveled waterway, traffic being heavier at night than during the day. The waterway at that point is only 160 feet wide, of which the two lighters, moored with one outboard of the other, occupied 68 feet. A tug proceeding in the channel...