In re Pennsylvania R. Co.

• Decision Date: 06 April 1931
• Docket Number: No. 131.,131.
• Citation: 48 F.2d 559
• Parties: In re PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

48 F.2d 559 (1931)

In re PENNSYLVANIA R. CO.

No. 131.

Circuit Court of Appeals, Second Circuit.

April 6, 1931.

Chauncey I. Clark, of New York City, for appellant.

George V. A. McCloskey and William F. Purdy, both of New York City, for appellees Cleary Bros., Inc., and others.

William F. Purdy and John E. Purdy, both of New York City, for appellee Hughes.

Warner Pyne, of New York City, for appellees City of Long Beach and others.

Macklin, Brown, Lenahan & Speer, of New York City (George V. A. McCloskey, of New York City, of counsel), for claimants.

Single & Single, of New York City, for claimant Armstrong Transportation Co.

Leo J. Curren, of New York City, for claimant James McWilliams Blue Line, Inc.

Park, Mattison & Lynch, of New York City, for claimants Mark W. Maclay and Charles E. McWilliams.

Foley & Martin, of New York City, for claimant Red Star Towing & Transportation Co.

John R. McMullen, of New York City, for claimant Cleary Bros., Inc.

Otto & Lyon, of New York City, for claimant Harold L. Valentine, Inc.

Before L. HAND, CHASE, and MACK, Circuit Judges.

L. HAND, Circuit Judge.

The Pennsylvania Railroad Company maintains a terminal for the transportation of coal to the City of New York at South Amboy, New Jersey, at the mouth of the Raritan River opposite the southern end of Staten Island. The tracks end in coal chutes upon the piers, whence the coal falls into barges which are brought beneath to be filled. Thereupon they are towed away, made up into flotillas and hauled through the Kills to the Upper Bay, and so to the city. While awaiting their turn at the chutes, they are moored in large numbers at a mooring rack some twelve hundred feet long, not far from the piers. The road does not try to keep the barges in any order at the rack; they are laid helter-skelter as they chance to arrive, or as it may be convenient to dispose them. Nor does it keep any plan of their arrangement in the coal office upon the pier; the employees, although they have a record of such boats as have been left, do not know where amongst the lot any particular one may have been put.

When a parcel of coal consigned to a given dealer is ready to be dumped, the barge which he has sent to lift it, must therefore be drilled out of the mass of barges moored indiscriminately at the rack and brought to the chutes. This may involve no more than taking her from the outside tier, or it may require the casting off of twenty or thirty outside barges, until she can be reached. This is the work of one or more tugs kept for that purpose in the vicinity; on the day in question, a Sunday in October, the "Brinton" was the only tug so employed. The practice is to tell the tug to fetch the consignee's barge, when the time comes to unload the cars which hold his coal; the tug goes to the rack, breaks out the barge and brings it to the chute.

On the afternoon in question there was a northwesterly gale, blowing off-shore, which swept the length of the rack, along which over fifty barges were moored, six or seven tiers deep. The "Brinton," which had already drilled out several barges for the chutes without mishap, got orders from the coal department to break out a barge, called the "Blue Coat," several tiers inside, whose owner's coal was then ready to be loaded. She went to the clustered barges, cast off the side lines of those outside, and was in train of laying a line to the "Blue Coat," when the hawsers parted of some twenty-two or twenty-three, so pushed away to give her access. She tried unsuccessfully to manage the flotilla thus afloat, but it at once passed out of her control, and drifted easterly in the Lower Bay at the mercy of wind and sea. The boats held together for a while, but eventually broke apart, some going aground at Great Beds Light for a while, and later drifting out into the wider reaches of the Bay; the rest separating in various directions.

It is unnecessary, and indeed impossible, to follow the fate of each barge. Some were recovered while afloat; a few let go their anchors, though only one held, and then only because it fouled a cable. The greater part drifted clear across the Bay past Coney Island, and by Monday morning were off the westerly end of Long Beach. Even there they did not stop, but went ashore, or drifted near land, at Short Beach, Jones Beach, and even as far as Fire Island. Many were a total loss, for which their owners are claiming here. One eventually went to pieces against the Boardwalk at Long Beach in a southerly storm on Wednesday, doing great damage to that structure. The City of Long Beach and Long Beach-on-the-Ocean, Inc., are claimants for that damage.

The "Brinton" stood by on Sunday night, but on Monday morning, believing that she could do no more, cut her hawser, took the crews off the barges and put back, being out of fuel and food. The road's marine officials at Jersey City had meanwhile learned of the disaster, and on Sunday evening sent to the rescue two tugs, the "Number 32" and the "Overbrook," more powerful than the "Brinton." The "Overbrook" took the ground in her efforts, and perhaps the "Number 32" as well, though that is in dispute. They plied about in the darkness, picking up what they could, but not very effectively, since the conditions forbade much service. On Monday morning at about nine the road chartered the wrecking tug, "Resolute," and visited the shore where those barges still lay which had not been recovered. They were scattered along the beaches among the breakers, and it appeared to those on board impossible to reach them. Meanwhile a Coast Guard vessel had got hold of one, and a fishing vessel had picked up another. These the "Resolute" took in tow and brought back safely, at about four o'clock on Tuesday morning.

By Monday morning the storm had somewhat subsided, and it was relatively calm all of Tuesday and on Wednesday morning until shortly before noon, when the wind, which had meantime hauled to the south, again rose to thirty-four miles and blew on shore. Although the evidence does not certainly prove so, it was probably at this time that a single barge, the Hill, did substantially all the damage to the walk. On Tuesday, and probably also on Monday, though it is not necessary so to find, officials of the City of Long Beach advised the road that two barges then near shore were likely to damage the walk, and the road's officials tried again to charter the "Resolute," but without success, she being then engaged elsewhere. Finding that the wreckers had no other craft available, they did nothing more. Small craft, fishing boats and launches, busied themselves on Monday and Tuesday with the rescue, in several cases successfully; but the road made no effort to secure the services of these vessels. On Sunday night, the tug, Hughes, set out from South Amboy and brought back five barges; for this she asks and has secured a salvage award.

Several of the barge owners sued the road and as more suits were in prospect, it commenced this limitation proceeding, surrendering the "Brinton," which it now concedes to be guilty, and asking exoneration in personam under the statute. The claimants appeared in number and contested the limitation, alleging that the road was in privity with the tug's fault. The facts as to this were as follows: One, Crane, was the "terminal shipping agent" of the road at South Amboy, and was in general charge of discharging coal cars and loading barges. He had had no marine experience, and knew nothing of the handling of barges and tugs, except so far as his position might acquaint him as the work went on. He told the tug masters when he was ready for a barge, specifying that which he would next want. Both he and the master of the "Brinton" swore that his orders left it to the discretion of the tug master, how to drill out a barge, and whether the weather conditions at the time justified compliance. Crane did not know — nobody in the coal department or probably anywhere else knew — where in the cluster any given barge was; it was left to the tug master to decide whether it was safe to carry out the order. Those in charge of the marine service of the road were at Jersey City, some miles away; at the scene of the misadventure there was nobody in charge but Crane.

The District Judge held the "Brinton" at fault for trying to take out the "Blue Coat." He charged the road with all the resulting damage to the barges and the Boardwalk, and refused to allow limitation; holding that Crane was a superintendent in privity with the road, whose order to the "Brinton" to fetch the "Blue Coat" was peremptory, and was made with knowledge of the dangers involved. Thus it became unnecessary to consider whether there was any succeeding duty, after the marine superintendent at Jersey City learned of the disaster, to exercise any care to save the barges, or protect the walk. The road appealed; so did the tug, Hughes, for insufficiency of her salvage awards.

We are entirely satisfied, so far as concerns the fault of the "Brinton," that the limitation should have been allowed, and if the case ended there, it would in our judgment present little difficulty. Crane was not placed in charge of the drilling of the barges, and could not be supposed to know anything about marine matters. We need not dwell upon the evidence in detail; it is perfectly apparent that he was wholly unfitted for any such duties, and it would be altogether unreasonable to suppose that he should intervene or direct the conduct of the tugs. He was a landsman whose undisputed testimony that he was intended to act only as such, is corroborated beyond dispute by the organization of the business at the terminal. We cannot conceive that his order to drill out a barge should have been understood by the tug master as peremptory, or to supersede his own judgment. The "Brinton" was fit for the work, had already conducted it successfully, and the only fault was that of her master, who should not...