McAllister Bros. v. Pennsylvania R. Co.
| Decision Date | 03 March 1941 |
| Docket Number | No. 186.,186. |
| Citation | 118 F.2d 45 |
| Parties | McALLISTER BROS., Inc., v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Edmund F. Lamb, of New York City (Purdy & Lamb, of New York City, on the brief), for libelant-appellee.
Chauncey I. Clark, of New York City (Burlingham, Veeder, Clark & Hupper and Frederic Conger, all of New York City, on the brief), for respondent-appellant.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This libel is brought by McAllister Bros., Inc., to recover for damage to its barge "McAllister No. 69," sustained in New York harbor during the storm of the afternoon of September 21, 1938. The district court found that respondent, the Pennsylvania Railroad Company, which had taken the barge on charter that morning, was negligent in its care of the vessel. The only question on this appeal is the sufficiency of the evidence to support the findings on which that conclusion was based. Though the appeal brings the issues before us de novo, yet the well settled rule is that the court's findings must stand unless they are clearly against the preponderance of the evidence. City of Cleveland v. McIver, 6 Cir., 109 F.2d 69; The A. G. Brower, 2 Cir., 220 F. 648; The City of Augusta, 1 Cir., 80 F. 297.
Early in the morning of the day in question the respondent placed the "No. 69," loaded with about 40 tons of steel, on the northwest side, and about 60 feet from the end, of Pier 46. There, beginning sometime before 1:00 P. M., eastern standard time, she was battered against the pier by the high wind and seas, and developed a strong list to port before she was removed, about 5:00 or 5:10 P. M., by libelant's tug "William H. McAllister" into nearby Erie Basin. Immediate efforts to siphon her out failed, and she quickly settled onto her port side, becoming almost entirely submerged. This libel followed.
For its defense, respondent relies largely on the unprecedented severity of the storm of that day, which, as is well known, did so much damage throughout New England. So unexpected was the storm, in the respondent's view, that it could not reasonably have foreseen that Pier 46 would not be a safe berth and that the "No. 69" should be moved, until a time near the height of the storm when no tugs were available for the purpose and none could have safely undertaken it if they had been.
Disregarding all other facts which the court thought should have brought the danger to respondent's attention, we do not feel justified in rejecting the finding that respondent received at 11:00 A. M. the full text of a Weather Bureau warning of the storm. The Bureau in New York received the warning at 10:40 A. M. and, following customary procedure, immediately telephoned it to a list of local shipping interests, on which respondent stood second. The warning stated that a tropical storm 75 miles east of Cape Hatteras was Respondent claimed that the warning it received did not contain the intermediate sentence, but its evidence thereon was unconvincing.
In answer to the direct question whether or not the position of the "No. 69" at Pier 46 was a "safe berth for a barge in a heavy northwest wind," three masters not connected with the libelant and Harry Garcia, superintendent of Pier 46, as well as two of libelant's masters, answered in the negative. This was certainly not an unreasonable opinion. Pier 46 extends from the Brooklyn shore to the southeast a distance of nearly 500 feet from the bulkhead. The barge lay in the outermost berth, within 60 feet of the...
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