FE GRAUWILLER TRANSP. CO., v. Gallagher Bros. Sand & Gravel Corporation

• Decision Date: 04 February 1946
• Docket Number: No. 185.,185.
• Citation: 153 F.2d 384
• Parties: F. E. GRAUWILLER TRANSP. CO., Inc., v. GALLAGHER BROS. SAND & GRAVEL CORPORATION et al. THE J. G. NO. 48. THE HENRY HENJES et al.
• Court: U.S. Court of Appeals — Second Circuit

153 F.2d 384 (1946)

F. E. GRAUWILLER TRANSP. CO., Inc., v. GALLAGHER BROS. SAND & GRAVEL CORPORATION et al. THE J. G. NO. 48. THE HENRY HENJES et al.

No. 185.

Circuit Court of Appeals, Second Circuit.

February 4, 1946.

Edmund F. Lamb, of New York City (Purdy & Lamb and Thomas J. Irving, all of New York City, on the brief), for claimants-impleaded-appellants.

Christopher E. Heckman, of New York City (Foley & Martin, of New York City, on the brief), for libellant-appellee.

Leo F. Hanan, of New York City (Macklin, Brown, Lenahan & Speer, of New York City, on the brief), for respondents-impleaded-appellees.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

At the time of its stranding here involved in October, 1943, the scow J. G. No. 48 was under charter to Gallagher Brothers Sand & Gravel Corporation, which was employed by North Shore Sand & Gravel Corporation to deliver a cargo of sand and gravel to Elmhurst Contracting Company at the latter's place of construction of a pier extending into Sandy Hook Bay at Leonardo, New Jersey. It was being towed by the tug Henry Henjes. The District Court after a trial wrote a reasoned opinion, The J. G. No. 48, D.C.E.D.N.Y., 58 F.Supp. 773, and made findings of fact and conclusions of law holding the stranding of the scow and resulting damage to it to have been caused by the negligent navigation of the tug. Since this seems to us a question of fact where the findings below, being far from "clearly erroneous," should stand, Petterson Lighterage & Towing Corp. v. New York Cent. R. Co., 2 Cir., 126 F.2d 992, we shall rely on the statement in that opinion and only discuss the facts briefly.

The evidence supports Judge Galston's conclusion that the negligent towing of the tug caused the scow to strike a concrete mooring block. This was the explanation given by Sarin, the scowman, in his written statement made the day after the accident. At the trial, he further testified that the scow went over the mooring line, "jumped up" three or four feet, and — water pouring into its stern — listed to starboard before settling. And the master of the Henry Henjes, the captain of a disinterested scow, and a surveyor who examined the injured boat gave testimony which corroborated Sarin's account. Granting that the scow struck a mooring block, there can be no real question but that it was due to the negligence of the tug. For the position of the buoys was indicated by crossed timbers and by mooring lines; and...