Schroeder v. Tug Montauk

• Decision Date: 29 March 1966
• Docket Number: No. 263,Docket 29707.,263
• Citation: 358 F.2d 485
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Edward P. SCHROEDER, as owner of the MOTOR YACHT, SKOO-KUM II, Libellant-Appellee, v. The TUG MONTAUK, her engines, etc., Sea Bees B. 11, Inc., the OIL BARGE MONTAUK NO. 1, her tackle, etc., and Sea Bees B. 5, Inc., Claimants-Respondents-Appellants, and Wm. Edgar John & Associates, Inc., Respondent-Impleaded-Appellee.

358 F.2d 485 (1966)

Edward P. SCHROEDER, as owner of the MOTOR YACHT, SKOO-KUM II, Libellant-Appellee, v. The TUG MONTAUK, her engines, etc., Sea Bees B. 11, Inc., the OIL BARGE MONTAUK NO. 1, her tackle, etc., and Sea Bees B. 5, Inc., Claimants-Respondents-Appellants, and Wm. Edgar John & Associates, Inc., Respondent-Impleaded-Appellee.

No. 263, Docket 29707.

United States Court of Appeals Second Circuit.

Argued March 8, 1966.

Decided March 29, 1966.

Richard E. Meyer, New York City (Foley & Martin, New York City, on the brief), for libellant-appellee.

Edwin D. Kyle, New York City (Krisel & Beck, Maurice A. Krisel, and Herbert B. Halberg, New York City, on the brief), for claimants-respondents-appellants.

Jerome F. Healy, III, New York City (Healy & Fusfeld, New York City, on the brief), for respondent-impleaded-appellee.

Before SMITH, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The Milton Point Channel in Rye, New York, runs from its open end on the west, where it branches off from Milton Harbor, to a basin at the east end, where it terminates. Immediately west of the basin there is located on the north side of the channel the bulkhead pier of the Milton Point Shipyard, owned and operated by Wm. Edgar John & Associates, Inc.; and directly across from it on the south side of the channel is the bulkhead pier of the Suburban Oil Company. The channel between the line of piles and the bulkhead pier of the Suburban Oil Company is 85 to 90 feet in width at mean high water.

There was permanently attached to the end of the shipyard's pier, facing the channel, a floating dock, to which, on November 3-4, 1959, the power yacht Skoo-Kum II had been made fast, port side to. This vessel was breasted out by bow and stern lines between the float and a line of piles standing about 25 feet distant from and parallel to the end of the shipyard pier. The width of the float projected it approximately 12 feet from the pier. The yacht, built in 1939, had a gross tonnage of 26 tons, an over-all length of 45 feet, a beam of 12 feet and a draft of 4.9 feet. At the time in question she carried several cork-filled canvas fenders on her port side but none on her starboard side.

There was undisputed evidence to show that the respondent tug, Montauk, had several times brought in oil barges to the oil company's pier. The Montauk was 64.3 feet in length and had a beam of 19.5 feet. At about midnight on November 3-4, 1959 the tug entered the channel to pick up the Oil Barge Montauk I, which had finished discharging her cargo at the oil company's pier. To put a tow-line aboard the barge and head out again, the tug had to make a 180° turn in the channel. This maneuver was accomplished by turning the bow of the vesssel toward the south side of the channel and by swinging her stern around. In so doing the stern of the tug collided with the yacht Skoo-Kum II and raised her up 12 to 16 inches on her starboard side.

The trial court found that the negligent operation of the tug was the sole cause of several items of damage to the yacht, including four broken frames on the starboard side. A decree was entered in favor of the libellant and the third-party action was dismissed. The court awarded the libellant $2213.88 in damages, interest thereon at 6% from the date of the collision in the amount of $700.18, and costs of $201.05. Some of the items of damage claimed by the libellant, including the charge that the collision had forced the twin-engines of the yacht out of alignment, were disallowed.

The respondents, the tug Montauk, the Oil Barge Montauk I, and their owners appeal from the decree against them and from the dismissal of their third-party action. The libellant cross-appeals from what it asserts to be a too niggardly award of damages and also against the impleaded respondent Wm. Edgar John & Associates to protect its position in case the judgment of the District Court is reversed. We affirm.

The appellants advance several claimed grounds for reversal. One is that this particular yacht under the circumstances of this case should be held to come within the holding of The John E. Berwind, 270 F. 569 (2d Cir. 1920) and barred from recovery as an old or weak vessel. Another claim is that any damage to the yacht was caused solely by the negligence of Wm. Edgar John & Associates in violating Title 33 U.S.C. § 409 by obstructing navigation in placing the piles in the channel and by permitting the yacht to remain at its float. They also assert that the trial court was in error in awarding interest to libellant.

In invoking the decision in the Berwind case the appellants are asking this court to extend to pleasure craft what the court in Berwind called "the `ancient practice of the admiralty to scrutinize closely claims resting on the loss of old or weak vessels.'" The court there was of the opinion that it was unjust to permit recovery for a vessel which had set out upon the generally frequented navigable waterways in so old and weak a condition that it could not withstand the "ordinary contacts of navigation," such as a comparatively slight blow, without suffering damage. This very limited doctrine in the few instances in which it has been applied, both before and after Berwind, has been confined to commercial craft and to those contacts which are intended or expected; for example, a vessel which is required to be snubbed into a berth by a tug, or which in receiving or discharging cargo must lie alongside another vessel where wave action may cause it to rub or chafe against the other vessel. The Le...