THE PRIMROSE, 377.

• Decision Date: 07 July 1930
• Docket Number: No. 377.,377.
• Parties: THE PRIMROSE. RAMSDELL et al. v. CORNELL STEAMBOAT CO.
• Court: U.S. Court of Appeals — Second Circuit

42 F.2d 827 (1930)

THE PRIMROSE.

RAMSDELL et al. v. CORNELL STEAMBOAT CO.

No. 377.

Circuit Court of Appeals, Second Circuit.

July 7, 1930.

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.

Single & Single, of New York City (Forrest E. Single, of New York City, of counsel), for appellees.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The cause of action asserted by libelant is for negligent towage. Cornell Steamboat Company contracted to tow libelants' barge and cargo from Dennings Point Brick Yard to New York. Accordingly, its tug Primrose took in tow the barge No. 7 loaded with brick and started out from the dock into the inlet which flows down to the Hudson river towing No. 7 stern first. The barge was 118 feet long, 36 feet wide at the top, and 35 feet wide at the bottom.

The inlet was used only for boats going up to the brick yard and back to the river. Saplings were placed by the Denning Point Brick Company each year on either side of the inlet to mark the channel. They were in approximately parallel lines about 40 to 45 feet apart, and were put at intervals of from 50 to 100 feet from one another along each side of the inlet. It is thus evident that there was very little room to tow any barge through this narrow strait and most of the witnesses testified that barges frequently grounded as they were taken through. No. 7 was so heavily loaded that she only had a freeboard of three inches. She touched on the east side and then on the west soon after starting on her trip, and shortly afterwards fetched up on a rock on the west side and suffered injuries.

The trial judge found that the rock was outside the channel, and upon this finding concluded that the tug was negligent and that she and her owner were liable to libelant for their damages.

Meehan, who was a bargee on one of libelants' other brick barges, came on the scene some four or five hours subsequent to the accident and after the tide, which had been flood when the barge stranded, was low. He testified that he found No. 7 angled across the channel with her stern on the west bank and her bow on the east bank. The bargee of No. 7 said the planks of the barge which were broken by the rock on which the barge stranded on the westerly side of the inlet were 2½ to 3 feet from the outside edge of the vessel. While Meehan testified that the barge was out of the channel with its port end resting on the westerly bank, he saw it only after it had pivoted around on the rock as the tide fell. He was not present when she grounded, and even when he saw her four or five hours afterwards he made no attempt to locate her position with reference to the line of saplings, though he said that the bushings were in place. This was the witness on whom the trial court relied. The finding of the judge, confessedly based on Meehan's testimony that the rock was outside the channel, was unwarranted, first, because the marked channel was the space between the lines of saplings and the witness disclaimed any observation of where the rock or the stranded barge was with reference to those saplings; second, because the rock was from 2½ to 3 feet inside of the westerly side of the barge — a location nowhere shown to have been outside the channel....