Long Island Railroad Co. v. The New York Central No. 25

• Decision Date: 25 March 1960
• Citation: 182 F. Supp. 100
• Parties: LONG ISLAND RAILROAD COMPANY, as owner of THE tug PATCHOGUE, Libellant, v. THE Carfloats NEW YORK CENTRAL NO. 25 and THE NEW YORK CENTRAL NO. 66 and The New York Central Railroad Company, Respondent, and THE Carfloat LEHIGH VALLEY NO. 1703 and THE tug LEHIGH VALLEY HAZELTON and Lehigh Valley Railroad Company, as owner of said carfloat and tug, Respondent-Impleaded.
• Court: U.S. District Court — Southern District of New York

182 F. Supp. 100

LONG ISLAND RAILROAD COMPANY, as owner of THE tug PATCHOGUE, Libellant, v. THE Carfloats NEW YORK CENTRAL NO. 25 and THE NEW YORK CENTRAL NO. 66 and The New York Central Railroad Company, Respondent, and THE Carfloat LEHIGH VALLEY NO. 1703 and THE tug LEHIGH VALLEY HAZELTON and Lehigh Valley Railroad Company, as owner of said carfloat and tug, Respondent-Impleaded.

United States District Court S. D. New York.

March 25, 1960.

Burlingham, Hupper & Kennedy, New York City, for libellant. Kenneth Volk, New York City, of counsel.

Gerald E. Dwyer, New York City, for respondent. William F. McGinn, New York City, of counsel.

Pyne, Brush, Smith & Michelsen, New York City, for respondent-impleaded. Albert Robin, New York City, of counsel.

IRVING R. KAUFMAN, District Judge.

This is a libel in personam against the New York Central Railroad (Central) and in rem against Central Carfloats Nos. 66 and 25, brought by the Long Island Railroad (Long Island) for collision damage to its tug Patchogue. The respondent impleaded the Lehigh Valley Railroad (Lehigh) pursuant to Admiralty Rule 56, 28 U.S.C.A. The jurisdiction of this court and the ownership of the various vessels is admitted. The facts are as follows.

On December 18, 1953, the Long Island tug Patchogue was properly moored port side to a wharf at Long Island City known as the "Oil Dock". The Patchogue was at that time in inactive service and had been so moored for some time. No crew was aboard. Prior to 7:00 a. m. on that day carfloat 1703 owned by Lehigh was moored alongside the east bulkhead at the "Pine Dock", located approximately 500 feet south of the Oil Dock. Between 7:00 and 7:35 a. m. Central's Tug No. 32 moored Central Carfloats Nos. 66 and 25 alongside Lehigh's No. 1703, No. 25 being outboard. Nos. 66 and 25 were lashed together and a single 5½-inch hemp line ran from the bow of each to the east edge of Pine Dock. Both floats were secured at the stern by only a looped 5½-inch hemp line running from No. 66's starboard stern to the port side of Lehigh's 1703. On December 18, Nos. 66 and 25 were heavily laden with railroad cars. No. 66 was the longest carfloat in service in the area and it extended about 60 feet beyond the end of the Pine Dock. Thus a wind from the south would not only catch No. 66 broadside, but would play against 60 feet of freeboard unprotected by any dock.

At aproximately 9:00 a. m. on December 18 the Lehigh Tug Cornell "drilled out" Lehigh's No. 1703. That is, the tug's crew removed the 1703, the most inboard of the three moored floats, and towed it away, resecuring the two remaining floats. It seems clear from all the evidence that in carrying out that operation the crew of the Cornell did not disturb the bow lines of Nos. 66 and 25, but merely took No. 66's starboard stern line, which had been attached to No. 1703, and resecured it to the south edge of Pine Dock after No. 1703 was drilled out. Counsel for respondent conceded that so far as Central knew, the stern line of No. 66 was the property of Central.

According to the witness Otto Muller, boat dispatcher for Long Island, who on the day of the accident was in his office on the second floor of a building approximately 900 feet from the Pine Dock, December 18th was clear and until about 1:00 p. m. the wind was from the northwest. Thus, until about 1:00 p. m., the wind tended to push the floats against the south edge of the dock to which they were moored. At about 1:00 p. m., however, Muller (whose window was open) felt the wind suddenly shift and freshen, becoming a gusty 20 to 25 miles per hour wind from the southwest. Going to his window at that moment he saw Central's Carfloats Nos. 66 and 25, still lashed together, drift across the slip, the port stern of No. 25 striking the starboard stern of the Patchogue. The bow and stern lines of No. 66 were parted.

It was stipulated by the parties that on December 18, 1953 high water in the East River came at 7:42 a. m. and 8:09 p. m., while low water came at 1:13 a. m. and 2:02 p. m., and that the drop between high and low water was approximately 5.2 feet. Thus, at 9:00 a. m., when the stern line of No. 66 was resecured, the tide had been dropping for approximately 1¼ hours and at 1:00 p. m., when the barges drifted free, approximately one hour of tide fall remained. There was no evidence of the exact amount of tidal drop between 9:00 a. m. and 1:00 p. m. at the Pine Dock, but accepting the 5.2 figure, and assuming that the tidal fall was regular, approximately 64% of the drop took place between those hours, that is, approximately 3.33 feet.

When a vessel properly docked is struck by a moving or drifting vessel, the burden is upon the moving vessel to show that the collision could not have been avoided by care and good seamanship. In The Louisiana, 1865, 3 Wall. 164, 173, 70 U.S. 164, 173, 18 L.Ed. 85 the Court stated:

"The collision being caused by the Louisiana drifting from her moorings, she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented." See also, The Havana, 2 Cir., 1937, 89 F.2d 23, 24; Patapsco Scrap Corp. v. Maryland Shipbuilding & Drydock Co., 4 Cir., 1959, 268 F.2d 817, 819-820.

It is clear beyond peradventure that the Central must be liable unless it can show that some force beyond its control propelled its vessels into the unoffending Patchogue. Certainly the 25 miles per hour wind does not amount to vis major. The most reasonable deduction to be drawn from the accident, in the absence of other evidence, is that the lines on No. 66 were inadequate to their task and such a finding would amount to negligence on the part of the respondent.

Indeed, the respondent does not rely on vis major or a like defense. Instead, it accepts the conclusion that the accident was caused by improper mooring but contends that the fault was Lehigh's. Its position is that Lehigh's servants in "drilling out" its No. 1703 neglected to leave sufficient line at the stern of No. 66 to absorb the tidal drop, and that as the ship settled in the water the line tautened, chafed against the concrete dock edge, and then broke. Lehigh of course contends that the parting of No. 66's lines was caused by a defect in one or both of them. On this issue Central likewise has the burden of proof in seeking to establish the affirmative negligence of Lehigh. There is testimony in the record that the stern line of No. 66 appeared only 10 to 14 feet in total length after having parted. Since the stern line was "double", i. e. looped, accepting that estimate would require a finding that the line's length from the deck of No. 66 to the dock was from five to seven feet. It should be emphasized at this point, however, that these measurements were merely the rough estimates of witnesses, made from a distance. If I were to accept them as accurate I would have to find that the stern end of No. 66 was almost snubbed against the Pine Dock. For, taking the length of six feet, accepting the uncontradicted testimony that the deck of No. 66 would be three feet below the edge of the dock at 9:00 a. m., and allowing one foot of line to go around the dock stanchion, there would have been only two feet of play left in the stern line. I cannot accept Central's argument without evidence to support it, that Lehigh's very experienced tugmen, who testified that it was their practice to leave sufficient line out to compensate for tidal fall, would have left only two feet of play in a line securing two heavily laden carfloats. To make such a finding I would need far more cogent and accurate evidence of the actual length of the line than was provided by Central. It should be noted that Lehigh was prevented from presenting evidence as to the actual length of the line by Central's unexplained failure to have it produced either at the trial or before.

This failure either to present the lines of No. 66 in court, or to offer any expert opinion as to their condition, or to offer any testimony in regard to them beyond that of witnesses who admittedly made only a cursory inspection, has other, more significant, consequences. The only testimony in regard to the condition of these lines was: (1) Witness Muller's accident report (libellant's exhibit No. 5), which stated "Starboard stern line on N.Y.C. 66 unravelled"; (2) testimony by Captain Drago, who was on the tug that tied up the floats 66 and 25 to the 1703, that he had "handled" the line several times on the evening before the accident and that the line was "good"; and (3) testimony by Patrick Phillips, a deck hand on the Central tug which towed the floats away after the accident that the line was "good" and that it was "chafed" where it parted. There was no expert testimony as to the adequacy of a single 5½-inch hemp line to secure two carfloats lashed together, both heavily laden and one the largest in local service, against a gusty 20 to 25 mile per hour wind hitting broadside against an unprotected 60 feet expanse of freeboard. True, Captain Drago testified that such a line could withstand "considerable strain", but that is hardly sufficient to establish the adequacy of the lines in question to withstand the force to which they were subjected in the instant case.

It is well established that when important and vital evidence is available and is not produced, the conclusion to be drawn is that such production would have disclosed facts adverse to the case of the party in custody of that evidence. See, The Colon, 2 Cir., 1918, 249 F. 460, 462; The John and Frederick, D.C.E.D.N.Y. 1935, 10 F.Supp. 666, 668; The Algie, D.C.E.D.N.Y.1932, 56 F.2d 388, affirmed 2 Cir., 1933, 67 F.2d 1014; The Vulcan, D.C.E.D.La.1945, 60 F.Supp. 158,...