THE CORNELL NO. 20

• Decision Date: 18 July 1934
• Citation: 8 F. Supp. 431
• Parties: THE CORNELL NO. 20. CORNELL STEAMBOAT CO. v. ROBERT GLADSTONE, Jr., Inc., et al.
• Court: U.S. District Court — Southern District of New York

8 F. Supp. 431

THE CORNELL NO. 20 CORNELL STEAMBOAT CO. v. ROBERT GLADSTONE, Jr., Inc., et al.

District Court, S. D. New York.

July 18, 1934.

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

Alexander, Ash & Jones, of New York City (Edward Ash, of New York City, of counsel), for respondent New York, O. & W. Ry. Co.

GODDARD, District Judge.

This libel was filed by the Cornell Steamboat Company, as owner of the Cornell No. 20, against Robert Gladstone, Jr., Incorporated, New York, Ontario & Western Railway Company, and the Newtown Creek Towing Company, to recover damages for injuries sustained by the Cornell No. 20 as a result of coming in contact with the sunken coal boat Kenmore near the entrance to the railway company's Pier No. 2 at Guttenberg, N. J.

In the afternoon of December 16, 1929, the loaded coal boat Kenmore in tow of a tug owned by the Newtown Creek Towing Company, bound into the slip, sank off the entrance to the slip of the New York, Ontario & Western Railway Company, which is located between the north side of the railway company's Pier No. 2 and the south side of the American Cotton Oil Company's dock at Guttenberg. The slip was about 612 feet deep from the river end of Pier 2 to the bulkhead, and the width of the slip, measured from the railway company's pier to the American Cotton Oil Company's dock adjoining on the north, is 137½ feet. The sunken Kenmore was about 96 feet long, 26 feet wide, and its downstream end was about 65 feet northerly from Pier 2 and 25 feet outward from a line drawn along the face or end of Pier 2, with its upstream and angling inshore so that it was some 10 feet outside of the line drawn along the pier end.

Around 4 o'clock in the morning of December 17, the tug Cornell No. 20, with light coal boat Hanfield for delivery at the railway company's inner bulkhead, entered the slip, and, after leaving the coal boat at the bulkhead, backed out under an ebb tide, striking the submerged wreck of the Kenmore, losing her rudder and damaging her propeller.

The evidence further establishes that employees of the railway company observed the sinking of the Kenmore which was entirely submerged, and that in the interim of twelve hours between her sinking and the accident to the Cornell No. 20 no buoy or mark had been placed upon the submerged wreck by the owner of the sunken boat or by any one else.

In its original answer, the New York, Ontario & Western Railway Company denied that it was under any obligation to buoy the wreck or give warning of its presence. Shortly before the trial, however, the railway company gave notice of two proposed amendments to its answer so as to allege that it gave warning of the wreck by placing a red lantern on the outer end of Pier 2 and by giving notice orally to the captain of the Cornell No. 20 as the tug approached the slip.

The owner of the Cornell No. 20 seeks to hold the New York, Ontario & Western Railway Company liable as wharfinger, for, although Gladstone, Jr., Inc., owner of the sunken Kenmore, is liable for failure to mark the wreck, a judgment against it is worthless, as it is insolvent and it has defaulted. The libel against the Newtown Creek Towing Company was dismissed by consent at the end of the trial.

There are only two issues of fact presented. One is whether a red lantern was placed on the end of the pier by the railway company. Its testimony is that an ordinary red lantern was burning there at the time; this is denied by the master and crew on the Cornell No. 20. Assuming, however, that such a lantern was there, this small red lantern on the end of the pier was not an adequate warning that there was this large sunken wreck at the entrance to the slip. Even if it had been observed by those navigating the Cornell No. 20, and the testimony is that it was not, it might well have been there for many reasons. See The William Nelson (D. C.) 206 F. 553; National Forwarding Co. v. Payne (D. C.) 297 F. 663; Heissenbuttel v. Mayor, etc., of New York (D. C.) 30 F. 456.

The respondent, the railway company, was in almost daily telephonic communication with the Cornell Steamboat Company, whose tugs had been taking boats in and out of the slip for many years, and easily could have informed its representative of the sunken wreck at the entrance to the slip if the railway company did not choose to mark the wreck.

The other issue of fact is whether one of the employees of the railway company upon the end of the pier shouted to the master of the tug warning him of the wreck. I am convinced from the weight of the evidence and the probabilities that no such warning was given to the Cornell No. 20. The testimony of this witness, a railroad employee, is open to suspicion, because he says he never made any statement to any one about the warning until about two months before the trial, and he could not remember the Cornell No. 20 coming into the slip that night. Moreover, I was impressed with the testimony of the captain of the Cornell No. 20, who was positive that no such warning had been given, and I believe it is improbable that he would have deliberately endangered his tug by passing over the wreck if he had known that it was there.

The slip was 137½ feet wide. The Kenmore was 96 feet long, and in the location where she was submerged 65 feet north of Pier 2, with her down-river end 25 feet off the pier line and her up-river end 10 feet from the pier line, she partially blocked the entrance to the slip, and was a dangerous hidden...