Pennsylvania Railroad Company v. The Beatrice, 140

• Decision Date: 15 February 1960
• Docket Number: No. 140,Docket 25296.,140
• Citation: 275 F.2d 209
• Parties: PENNSYLVANIA RAILROAD COMPANY, Libelant-Appellee, v. THE BEATRICE, her engines, etc., A. H. Bull Steamship Co., Inc., THE LESTER J. GILLEN, her engines, etc., and Henry Gillen's Sons Lighterage, Inc., Respondent-Appellants, Dalzell Towing Co., Inc., Respondent-Impleaded-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

275 F.2d 209 (1960)

PENNSYLVANIA RAILROAD COMPANY, Libelant-Appellee, v. THE BEATRICE, her engines, etc., A. H. Bull Steamship Co., Inc., THE LESTER J. GILLEN, her engines, etc., and Henry Gillen's Sons Lighterage, Inc., Respondent-Appellants Dalzell Towing Co., Inc., Respondent-Impleaded-Appellee.

No. 140, Docket 25296.

United States Court of Appeals Second Circuit.

Argued January 12, 1960.

Decided February 15, 1960.

A. V. Cherbonnier, New York City (Satterlee, Browne & Cherbonnier, and John H. Reilly, Jr., New York City, on the brief), for S. S. Beatrice and A. H. Bull Steamship Co., Inc.

John H. Hanrahan, Jr., New York City (Foley & Martin, New York City, on the brief), for Tug Lester J. Gillen and Henry Gillen's Sons Lighterage, Inc. Henry C. Eidenbach, New York City (Hill, Rivkins, Middleton, Louis & Warburton, New York City, on the brief), for Dalzell Towing Co., Inc.

Burlingham, Hupper & Kennedy, New York City (Stanley R. Wright and H. Barton Williams, New York City, of counsel), for The Pennsylvania Railroad Company.

Before CLARK, HINCKS and WATERMAN, Circuit Judges.

HINCKS, Circuit Judge.

Shortly past noon on December 15, 1953, the Steamship Beatrice (owned by A. H. Bull Steamship Co., Inc.), assisted by the tug Dalzellaird (owned by Dalzell Towing Co., Inc.) and the tug Lester J. Gillen (owned by Henry Gillen's Sons Lighterage, Inc.), was shifted from its berth in Brooklyn to another berth, located in a nearby slip. To take charge of this movement, Bull employed Dalzell's docking pilot and licensed tug master, Captain Mattisen, under a contract which contained the pilotage clause set forth, so far as presently material, in the margin.¹ With Mattisen on board the Beatrice, as its docking pilot, and with the Beatrice moving partially under her own power, the flotilla entered the opening of the slip without mishap. The Gillen, however, shortly after casting off from the Beatrice's port bow, became wedged between the Beatrice and the libelant's barge which was moored to the pier on the north of the slip. And the barge, in consequence, sank in a little more than an hour.

The court below found that the accident was caused by numerous negligent acts of Captain Mattisen in addition to the independent negligent behavior of crew members of both the Gillen and the Beatrice. Judge Levet held the original respondents, the Beatrice and Bull, the Gillen and Gillen's Sons, and also the respondent Dalzell, which Gillen's Sons had impleaded, each jointly and severally liable for the libelant's damages and entered an interlocutory decree imposing a primary liability upon each of the three parties or interests for one-third of the loss, with a right in the libelant, upon its inability to enforce the liability thus imposed upon any particular respondent, to proceed against the other respondents.² Dalzell was granted indemnification on its cross-claim against Bull for any damages paid by it to libelant,² pursuant, allegedly, to the terms of the pilotage clause in its contract with Bull.³ D.C.S.D.N.Y., 161 F.Supp. 136.

The well reasoned opinion of Judge Levet, which thoroughly discusses and analyzes the evidence presented at trial, and our own independent study of the record and arguments here advanced, convinces us that there were strong reasons for holding each of the respondents to some, if not all, of the negligent acts found against them. The master, who was in charge of the Gillen at the time of this accident, testified that the Gillen's engine and rudder speeds were inadequate to permit the rapidity of movement required for the operations undertaken and that this fact had been withheld from Captain Mattisen. Largely on the basis of allegedly conflicting pretrial statements Gillen's Sons challenges this testimony as perjury actuated by the malice of a discharged employee. However, we are presented with no impelling reason for disturbing the determination of credibility made below. Nor was it unreasonable to conclude that, absent Captain Mattisen's negligent handling of the flotilla, the Gillen would never have been in a position where its inadequate maneuverability would have caused damage. Even if we assume, as Bull contends, that Captain Mattisen was under no duty to make inquiry as to the sufficiency and maneuverability of the Gillen, still there is substantial evidence supporting the conclusions that he was at fault in entering the slip with the port side of the flotilla so perilously close to the libelant's barge; that this fault was partly the result of his failure to consult the available weather reports and to make proper allowance for the effect of the wind which tended to set the vessels to port; and that the speed at which the Beatrice entered the slip necessitated several "astern orders" which were given by Mattisen just prior to the collision and increased the movement to port. There was also reason to believe that Mattisen delayed too long in ordering the Gillen to clear the Beatrice, in view of the proximity of the libelant's barge to the flotilla.

Besides holding the Beatrice and Bull, in addition to Dalzell, liable to the libelant for the negligent acts of Captain Mattisen in the navigation of the Beatrice, the court below also concluded that the Bull interests were at fault for undue delay on the part of the Beatrice's crew in the execution of Captain Mattisen's order to cast off the Gillen's lines. It is true that the record on this point is in considerable conflict and, in any event, the delay in casting off was no greater than a few minutes. Nevertheless, there was evidence to support the finding that such delay did in fact occur and in the precarious situation then existing was a fault which contributed to the accident. We also think there was sound basis for the court's conclusion that the Beatrice's captain, who was on her bridge along with Mattisen, in order to personally see that his vessel was well maneuvered, was at fault for failure to correct or countermand Mattisen's order when the danger of the vessels' positions became imminent. Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S.A., 2 Cir., 32 F.2d 209; Griffin on Collision § 190. Cf. Union Shipping & Trading Co. v. United States, 2 Cir., 127 F.2d 771.

Accordingly, we hold that there is no sufficient reason to disturb the court's findings that the libelant's injuries were contributed to by the joint and several negligence of the Gillen, the Beatrice, and Dalzell as Mattisen's employer.

We turn now to a more difficult problem. On the basis of the findings as just affirmed all the parties save the Gillen interests contend that the damages should have been equally divided between the two vessels found to have been at fault, and that it was erroneous to fix a primary liability for a third part of the damages upon each of the two vessels and their respective owners and also upon Dalzell which was liable only in personam.

We hold that the primary liability for the damages as fixed below is in all respects in accord with reason and precedent.

There is no doubt that an innocent libelant in admiralty, as a plaintiff at common law, is entitled to hold each of the wrongdoers jointly and severally liable for his injuries. In consequence, any of the respondents here who were sued in personam, or either of the vessels in rem, at least to the extent of its value, could have been held liable in solido for the entire damages if it had been sued separately. The fact that all of the offending interests were before the court in a single suit does not limit the libelant's right against each. The Atlas, 93 U.S. 302, 23 L.Ed. 863; ...