THE BB NO. 21, 32-34.

• Decision Date: 07 December 1931
• Docket Number: No. 32-34.,32-34.
• Citation: 54 F.2d 532
• Parties: THE B. B. NO. 21. THE VICTORIA. THE DISPATCH. BURNS BROS. v. CORNELL STEAMBOAT CO. et al. BURNS BROS. et al. v. SAME. RED STAR TOWING & TRANSPORATION CO. v. BURNS BROS. et al.
• Court: U.S. Court of Appeals — Second Circuit

54 F.2d 532 (1931)

THE B. B. NO. 21.

THE VICTORIA.

THE DISPATCH.

BURNS BROS. v. CORNELL STEAMBOAT CO. et al.

BURNS BROS. et al. v. SAME.

RED STAR TOWING & TRANSPORATION CO. v. BURNS BROS. et al.

Nos. 32-34.

Circuit Court of Appeals, Second Circuit.

December 7, 1931.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Robert S. Erskine and Henry P. Elliott, both of New York City, of counsel), for appellant.

Alexander, Ash & Jones, of New York City (Edward Ash and Max Taylor, both of New York City, of counsel), for libelant in first libel.

Single & Single, of New York City (Thomas H. Middleton, of New York City, of counsel), for libelants in second libel.

Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for libelant in third libel.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

On the order of Burns Bros., the appellant's tug Victoria took in tow two loaded coal boats for delivery in the slip on the south side of Pier 125 North River, at the foot of West 135th street, New York City. When the tug and tow arrived off the slip, at about 11 p. m. July 5, 1928, entrance to the slip was found to be blocked by a dredge and dumper scow. Another tug was standing by waiting to take out the dumper scow, and it is probable that the master of this tug, if requested, would have shifted the dumper so as to give the Victoria's tow access to the slip; but, without making any such request, the master of the Victoria landed the two coal boats on the north side of Pier 125, about half way in from its outer end. The B. B. 21, the smaller of the two coal boats, was placed alongside of the pier, and the larger, the Dispatch, abreast of and outside the B. B. 21. Both coal boats had open hatches. Each boat was manned by a bargee, and it is contended by the appellant that the bargees requested the master of the Victoria to moor them where he did.

The north side of Pier 125 has no protection from a wind blowing down the river. It is an exposed and dangerous berth for coal boats in a north or northeast wind of 30 miles' velocity, and such boats are rarely landed there. At 11 o'clock on the night in question the wind was only from 9 to 12 miles an hour. Since 5 p. m. rain had been falling, and the wind had shifted from southeast through east to northeast. During the night it hauled further into the north and increased in velocity, blowing at the rate of 30 miles or more an hour after 3 a. m., with a maximum of 36 miles at 4:55 a. m. At some time prior to 6 a. m. both coal boats sank. Neither bargee was available at the trial, and no eyewitness testified to the cause of their sinking. The trial judge found that they were swamped by seas stirred up by the wind, and that the Victoria was negligent in placing them on the north side of the pier under the existing conditions, and was not relieved from responsibility by the consent of the bargees, because they were not offered a "free choice," but only the alternative of being hung up at the end of Pier 125. By this the trial court meant that the master of the Victoria had not suggested to the bargees the possibility of landing them in the slip south of Pier 124, where they would have had a protected and safe berth.

When a tug finds that she cannot deliver her tow at its destination, it is her duty to return the tow to its owner or to tie it up at some safe place and protect it until she can deliver it at the point called for. Cokeley v. The Snap, 24 F. 504 (D. C. N. J.); The American Eagle, 54 F. 1010 (D. C. N. D. Ohio); The Governor, 77 F. 1000 (D. C. S. D. N. Y.); The Thomas Purcell, Jr., 92 F. 406 (C. C. A. 2); The May McGuirl, 256 F. 20 (C. C. A. 2). To leave the boats in an unsafe berth was not a performance of the Victoria's contract of towage. The District Court found that the north side of Pier 125 was an unsafe berth under conditions foreseeable when the tug moored the boats there. Error is assigned to this finding, but the evidence is sufficient to sustain it. Admittedly the berth was exposed and would become dangerous if the wind should increase to a velocity of thirty miles an hour. It was seldom used for coal boats. While the wind was light at 11 o'clock, it was from the northeast, and rain had been falling for several hours. It is common knowledge that a northeast storm is frequently accompanied by high winds. Moreover, there was no necessity of putting the boats in this exposed position. By requesting the shifting of the dumper scow, the Victoria could probably have gotten access to the slip to which her tow was consigned; or, if not, she could have put the boats in the adjacent slip south of Pier 124. As always in judging fault, it is a question of the gravity of the danger, coupled with its likelihood, as compared with the opportunity of avoiding it. Considering the ease of going to a safe berth, it was a fault to choose the exposed one, with the weather what it was.

It is objected that, even if the fault existed, there is no proof that it was the cause of the sinking. True, no eyewitness explained just what happened; but the inference that the boats were swamped by the seas is entirely reasonable. Appellant's suggestion that the bargees may have been remiss in not using their pumps nor seeking assistance when danger appeared is pure conjecture, unsupported by any evidence. To be relieved from the consequences of his own fault, a wrongdoer must do more than merely suggest the possibility that the tort of another may have intervened. Cf. Alexandre v. Machan, 147 U. S. 72, 85, 13 S. Ct. 211, 37 L. Ed. 84,...