Robins Dry Dock & Repair Co.v. Navigazione Libera Triestina, S.A.

• Decision Date: 11 April 1933
• Citation: 261 N.Y. 455,185 N.E. 698
• Court: New York Court of Appeals Court of Appeals
• Parties: ROBINS DRY DOCK & REPAIR CO. .v NAVIGAZIONE LIBERA TRIESTINA, S. A., et al.

261 N.Y. 455

185 N.E. 698

ROBINS DRY DOCK & REPAIR CO..vNAVIGAZIONE LIBERA TRIESTINA, S. A., et al.

Court of Appeals of New York.

April 11, 1933.

Action by the Robins Dry Dock & Repair Company against Navigazione Libera Triestina, S. A., and the Moran Towing & Transportation Company, Inc. From a judgment and order of the Appellate Division entered in the office of said court June 6, 1932, unanimously affirming a judgment of Supreme Court, New York County, entered October 26, 1932, in favor of plaintiff and against defendant Moran Towing & Transportation Company, Inc., and dismissal against defendant Navigazione Libera Triestina, S. A. (235 App. Div. 841,257 N. Y. S. 908), the plaintiff and defendant Moran Towing & Transportation Company, Inc., appeal by leave of the Court of Appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Harold Harper and E. Curtis Rouse, for respondent-appellant Robins Dry Dock & Repair Co.

Harold R. Medina, Richard F. Lenahan, and William F. McNulty, all of New York City, for defendant-appellant.

Homer L. Loomis, of New York City, for defendant-respondent.

CROUCH, Judge.

The Brenta II, a single screw steamship of 8,845 tons, was on January 21, 1926, moored in a slip in the Erie Basin, bow in, alongside and parallel to the steamship El Siglo, which in turn lay alongside Pier No. 2. One hundred and fifty feet further in, the slip ended with the gate of plaintiff's graving dock. About 2 o'clock of that day, the Brenta II prepared to leave the harbor, and its agents called the defendant Moran Towing Company for two tugs and a pilot to undock it, stating that its steam was up. Accordingly, the tugs Agnes Moran and C. P. Raymond were dispatched to the ship, and on their arrival Healy, master of the Agnes Moran, went aboard and directed the maneuvers of the tugs and the Brenta II from its bridge up to the time of the collision. A line was passed from the starboard bow of the ship to the Agnes Moran, and another from its starboard quarter to the C. P. Raymond. The mooring lines were taken up and the engines of the Brenta II started ahead, the tugs at the same time pulling astern and to starboard, toward the middle of the slip. When the ship had gone about half the distance inshore, its engines were reversed to full speed astern. At about that time, however, the head line of the Agnes Moran parted. The full steam pressure of the engines astern and the remaining tug did not entirely overcome the headway forward, and the bow of the ship came in contact with the gate of the graving dock, causing damage of $19,080.

Plaintiff brought a common-law action in the federal court against the steamship company alone. A verdict for the defendant was reversed, and a new trial granted by Circuit Court of Appeals. Robins Dry Dock & Repair Co. v. Navigazione Libera Triestina, S. A., 32 F.(2d) 209. On that trial the defendant put in no evidence, but rested upon the plaintiff's case. In view of the decision, it became necessary for the defendant on a new trial to adduce certain testimony. Accordingly, the captain and the third mate of the Brenta II were brought from Italy to New York, and their depositions taken de bene esse.

Before the new trial was had, however, plaintiff determined to sue the Moran Towing Company as well as the original defendant. It thereupon brought this action in the state court, framing its complaint under the provisions of section 213 of the Civil Practice Act. The action in federal court was discontinued upon a stipulation that the depositions above referred to might be used by the original defendant as evidence in the state court action.

Trial of the action was had as a nonjury case. Judgment was directed in favor of the plaintiff against the Moran Towing Company, and the complaint was dismissed as to the owner of the ship. The court found as facts that the accident occurred in consequence of the negligent navigation of the ship by Healy, and that Healy was acting at the time as the agent of the towing company, and not of the ship's owner. The judgment was unanimously affirmed in the Appellate Division, and the case is here by leave of this court.

The appellant Towing Company asserts: (1) That the finding of negligence by Healy rests solely upon the testimony of two interested witnesses whom it had no opportunityto cross-examine; and (2) that Healy in any event was, as matter of law, the agent of the ship and not the agent of the towing company.

1. Upon the trial Healy, as a witness for the towing company, testified to facts which if believed exonerated him and placed the blame for the ship's forward movement upon the engine room crew of the ship. The ship's owner in its own behalf and against the plaintiff only offered to read in evidence the depositions of the captain and the third mate of the ship, taken under the circumstances above recited. To this testimony the Moran Towing Company objected upon the ground that it had not been a party to the first action and that it had had no opportunity to cross-examine the witnesses. The court permitted the depositions to be read as offered, and stated that the testimony was received only with respect to the plaintiff's claim against the ship's owner, and would not be considered as against the Moran Towing Company. It may be conceded that it is not always easy for a trier of fact, whether judge or jury, to keep evidence in separate compartments. When it is said, however, that the solution of the dilemma presented here was unsatisfactory and artificial, the answer must be that the dilemma was neither new nor unusual and that it has always been solved as it was here. Compare Akely v. Kinnicutt, 238 N. Y. 466, 475, 144 N. E. 682,Crandall v. A. B. Leach & Co., 222 App. Div. 292, 225 N. Y. S. 649, 927,Scully v. Scully, 179 App. Div. 266, 166 N. Y. S. 464. In any event, we are unable to see that the towing company was prejudiced by the ruling. The trial court, for reasons stated in its opinion, discredited Healy's story, and perhaps found in its very improbability evidence to the contrary. Beyond that, however, there was testimony by the captain of the tug Raymond...