Lynch v. Agwilines, Inc.

• Decision Date: 31 October 1950
• Docket Number: No. 18,Docket 21663.,18
• Citation: 184 F.2d 826
• Parties: LYNCH v. AGWILINES, Inc., et al.
• Court: U.S. Court of Appeals — Second Circuit

184 F.2d 826 (1950)

LYNCH v. AGWILINES, Inc., et al.

No. 18, Docket 21663.

United States Court of Appeals Second Circuit.

Argued October 5, 1950.

Decided October 31, 1950.

Foley & Martin, New York City, Christopher E. Heckman, New York City, of counsel, for libelant cross-appellant.

Burlingham, Veeder, Clark & Hupper, New York City, Chauncey I. Clark, Frederic Conger, New York City, of counsel, for claimant-respondent-appellee and cross-appellant.

J. Vincent Keogh, United States Attorney, Brooklyn, N. Y., Leo J. Curren, New York City, for appellant.

Haight, Deming, Gardner, Poor & Havens, New York City, Henry M. Hewitt, New York City, of counsel, for claimant-impleaded-appellee.

Before L. HAND, Chief Judge, and SWAN and CLARK, Circuit Judges.

L. HAND, Chief Judge.

These are appeals from a decree in the admiralty awarding half damages to the libelant for injuries to her scow by being crushed in the slip between Piers 36 and 37 on the Manhattan shore of the Hudson River. We ignore the original libel which was filed on April 10th, 1944, and start with an amended libel which was filed by permission on April 15th, 1946. This was against the tug, Atwood, in rem and against the respondent, Agwilines, Inc., in personam (by foreign attachment); and alleged that the tug had made the scow fast alongside a derrick lighter, The Comrade, which in turn was made fast alongside the U. S. S. Abiqua, which was moored to the south side of Pier 37. These three vessels — the ship, the derrick and the scow — occupied the whole width of the slip except three or four feet between the south side of the scow and the north side of Pier 36. The tug, having made fast the scow to the derrick, went about her business, and when she came back to the slip, about half an hour later, she found that the ship had sagged away from Pier 37, and squeezed the scow between the derrick and Pier 36, causing the injuries complained of. The answer of the claimant-respondent, Agwilines, impleaded the United States and the derrick as parties at fault, and at the trial on December 18th, 1948, it moved to amend its petition by asserting a claim against the United States under a "Berthing Agreement" between itself and the War Shipping Administration, which engaged to indemnify it for any liability to third persons incurred by Agwilines during performance of the agreement. The judge decided that Agwilines was liable for failing to advise the ship of the narrow margin left between the scow and Pier 36, but that the bargee was also responsible for inattention to his scow as the margin closed. He held Agwilines liable for half damages, the United States liable to Agwilines as indemnitor, and he exonerated the derrick. The United States, the libellant and Agwilines have appealed.

The first question is one of fact: what caused the ship to sag away from Pier 37? The testimony was that her lines to the pier did not render; and, if not, it is hard to find any other explanation than in the fall of the tide during the half hour between five and five-thirty that afternoon. Since the difference between high and low water at that place is only about four feet, the drop in thirty minutes could not have been more than eight inches, which seems a scant allowance for a horizontal movement of the ship of between three and four feet. Nevertheless, if the ship's lines to the pier were long, and if, when they were put out, the deck of the ship was high above the pier — so that they ran near to perpendicular — it is not impossible that she might have moved off as much as the witnesses assumed. The judge considered all these circumstances in detail — regretting that it did not appear at what stage of the tide the ship was moored — and finally concluded that the cause of the sagging was the fall of the tide; and we can see no ground for differing with his finding. The only persons, who can be charged with notice of the approach of the scow to the pier, are the bargee, the tug master, the Agwilines' harbor master and the ship. We need not consider the ship because when the United States was impleaded, it was already too late to bring suit; nor were those on board the derrick charged with any duty to the scow.

First, as to the harbor master. If it had appeared that he remained at Pier 36 or nearby after the tug had made the scow fast and had left, it could with some plausibility be argued that he should have exercised some supervision over the scow and intervened before any contact occurred, or immediately thereafter. On the other hand, if he went away in the tug, no liability can be imposed upon him beyond that imposed upon the tug master. The evidence will not support a finding that he was on or near Pier 36 after the tug left. Early that morning the tug had placed the scow near the bulkhead on the north side of Pier 36; and had made fast another scow, the No. 122, alongside the derrick. That filled up the slip, so that, when the No. 122 had been discharged, in order to replace her by the libellant's scow the tug had first to push the No. 122 up to her, run a line between the two, and pull both out tandem until the libellant's scow was abreast of the...