THE SOCONY NO. 9, 138.

• Decision Date: 17 December 1934
• Docket Number: No. 138.,138.
• Citation: 74 F.2d 233
• Parties: THE SOCONY NO. 9. THE JOYCE CARD. THE PAUL CARD.
• Court: U.S. Court of Appeals — Second Circuit

74 F.2d 233 (1934)

THE SOCONY NO. 9.

THE JOYCE CARD.

THE PAUL CARD.

No. 138.

Circuit Court of Appeals, Second Circuit.

December 17, 1934.

Macklin, Brown, Lenahan & Speer, of New York City (Paul Speer, of New York City, of counsel), for the Socony No. 9.

Foley & Martin, of New York City (James A. Martin and John R. Stewart, both of New York City, of counsel), for The Paul Card and The Joyce Card.

Chauncey I. Clark, of New York City, for libelant.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The cause of suit here on appeal arose out of a collision on March 23, 1929, in a dense fog at the mouth of the Kill van Kull, close beside the St. George Ferry racks. The injured vessel, the Conemaugh, originally a freighter built during the war, but later converted into a tanker, had been at Bayonne and wished to be towed out through the Kill to the Upper Bay. For this purpose, being without steam, she hired the two Card tugs to take her out, one made fast on either side. By the time the flotilla rounded Bergen Point into the Kill the weather had begun to thicken, and when the vessels got to Constable Hook, the visibility was not more than sixty or seventy feet. It was about low water and the four fathom line juts southwards from Robbins Reef Light, in places for half a mile, leaving an available channel at times of only about a quarter of a mile in width for a vessel which, like the Conemaugh, drew twenty-three feet. Faced with the alternative of groping their way forward, guided only by the gong upon the ferry rack, the tugs decided to anchor where they were. The exact place it is now impossible to learn for the testimony differs; the flotilla was headed in a general southeasterly direction, very close to the west end of the racks and about four hundred feet out from the Staten Island shore; it was unquestionably in the fairway, though for vessels passing through the Kill probably in no worse position than anywhere else, unless it could have got into a slip. Having anchored, the Conemaugh began to sound her bell at least every minute, as prescribed by Article 15 subdivision (d) of the statute (33 USCA § 191 d). She had been equipped with an unusually large one, fifteen inches high by over twelve in diameter; shipped when she was intended for the high seas and much larger than the tugs'. These continued to lie alongside with their sterns about abeam of the tanker's, and they did not sound their bells. The tug Socony No. Nine was coming up from Tompkinsville, feeling her way in the fog along the Staten Island shore. She heard a bell which was probably the Conemaugh's, but she was moving at too high a speed; so the judge found, and she does not now challenge it. Not stopping in season, she struck the Conemaugh's port bow about thirty feet abaft her stem; missing the port tug which was too short to be struck. The judge exonerated both tugs and tow, and held the Socony for full damages. Her claimant appeals, not disputing the findings of fault against her, or the exoneration of the tow, but charging the tugs with fault for anchoring in a foul berth and for failing to sound their own bells to supplement the Conemaugh's.

It is quite true that the general duty of a vessel not to anchor in a fairway (section 409, title 33, U. S. Code, 33 USCA § 409), exists in a fog as well as at any other time. La Bourgogne, 86 F. 475 (C. C. A. 2); The Persian, 181 F. 439 (C. C. A. 2). But like most duties it is not absolute; she may have an interest which will excuse her; for example, the fog may be so dense, the quarters so close, and a safe berth so difficult and dangerous to reach, that the balance of advantage to all concerned makes it best to anchor where she is. In the case at bar it was theoretically possible for the tugs to try for some Staten Island slip nearby. When questioned the master of the Joyce Card, who was in charge, would only answer that "with that draft of water we can't go into every pier," and that it seemed safer for his own vessel to stay where he was. That was not a very convincing excuse, and yet we are disposed to accept his judgment made at the time, under the doctrine of The A. P. Skidmore, 115 F. 791 (C. C. A. 2), The City of Norfolk, 266 F. 641, 645 (C. C. A. 4), and The Northern Queen (D. C.) 117 F. 906. It was not an easy thing in so dense a fog to find a berth for a ship two hundred and fifty feet long; the first one may try for may be too full, and to peer about till another is found is a...