Tanker Hygrade No. 24 v. The Dynamic
| Decision Date | 03 June 1954 |
| Docket Number | Docket 22979.,No. 204,204 |
| Citation | 213 F.2d 453 |
| Parties | TANKER HYGRADE NO. 24, Inc. v. THE DYNAMIC et al. THE HYGRADE NO. 24. THE CHOCTAW. |
| Court | U.S. Court of Appeals — Second Circuit |
Purdy, Lamb & Catoggio, New York City (Vincent A. Catoggio, New York City, of counsel), for claimant-appellant.
Foley & Martin, New York City (Christopher E. Heckman, New York City, of counsel), for libellant-appellee.
Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
Tanker Hygrade No. 24, Inc., the owner of the barge "Hygrade No. 24" brought this suit against the tug "Dynamic" to recover the damages alleged to have been sustained by the barge through the sole fault of the tug. Conners-Standard Marine Corporation, owner of the tug, appearing as claimant, denied the allegations of fault in the libel and filed a cross-libel alleging that the tug "Choctaw," which had the barge in tow when it was injured, was solely at fault for the damage to it. There was a trial on the merits at which the claimant and cross-libellant rested at the close of the libellant's evidence. The cross-libel was dismissed and no appeal has been taken from that part of the decree. The "Dynamic" was held solely at fault in an interlocutory decree from which the claimant of the "Dynamic" has appealed.
The appellant contends the findings so lack support in the evidence that they are clearly erroneous; that they correspond too closely in substance and language to parts of the libellant's trial brief to be a compliance with Admiralty Rule 46½ of the Supreme Court, 28 U.S.C.A.; and that, the evidence was inherently too implausible to support the findings.
The findings made by the trial judge were substantially as follows:
At about a quarter past eleven on the clear morning of July 30, 1948, the tug "Choctaw" was push-towing the barge "Hygrade No. 24" westerly in the New York State Barge Canal near Tonawanda, N. Y. The middle of the stern of the barge was tightly held against the stem of the tug by two cables, one running from each side of the stern of the barge to a bitt on the corresponding side of the stern of the tug which was being navigated by a licensed and competent captain. The "Hygrade No. 24" was a tank barge 203 feet long and 43 feet wide, loaded to a draft of nine and one-half feet. The tug was sixty-nine feet long and twenty feet wide with 450 diesel horse power. The tug approached a bend to the left at a speed of about three miles an hour against the current and as she did so sounded a long bend whistle. She then heard a bend whistle ahead and slowed her speed to about a mile and a half per hour, keeping close to her star-board side of the channel which was there one hundred feet wide and twelve feet deep with sloping banks of gravel with hard and soft spots, rocky in places, the testimony being that the rocks were small. The wind was blowing at about thirty-five miles an hour from the southwest and its force on vessels in the canal tended to set them over toward the north bank on the starboard side of the "Choctaw."
The vessel which had sounded the bend whistle that was heard just after the "Choctaw" had sounded hers was the tug "Dynamic." She had done that as she entered another bend westerly of that which the "Choctaw" was approaching when she signalled. That second bend was another to the left of the "Choctaw" but one to the right of the "Dynamic" which was proceeding easterly with two light barges tandem on hawsers, the bow of the leading barge being fifty or sixty feet from the stern of the barge. Each of the barges, which were the "C. M. C. No. 20" and the "C. M. C. No. 30," was about one hundred feet long, and each drew only about eighteen inches of water. The sides of each extended above the water about eleven feet.
The "Dynamic" and her tow, with the current under foot, came into the space between the two bends and the two tugs were in sight of each other when they were about one thousand feet apart, with the "Dynamic" in midstream. The "Choctaw" then sounded a one blast signal for a port to port passing which the "Dynamic" answered with one. While the two tugs were navigating to comply with this agreement the "Dynamic's" tow started to swing over toward its port and toward the north side of the canal ahead of the "Choctaw" and her tow and the "Choctaw" swung her tow to the right until the starboard quarter of the "Hygrade No. 24" pulled up against the north bank of the canal and came to rest. While the "Hygrade No. 24" was thus on the bank the tug "Dynamic" came on and passed safely port to port but did not keep her tow straight behind her and the first barge in her tow "brushed" the port bow corner of the "Hygrade No. 24" as she passed. Apparently no damage was caused by this "brushing"...
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