211 F. 959 | 2d Cir. | 1914
The respondent contracted with the state of New York to perform a part of the improvement of the Erie Canal, the work to be conducted so as not to interfere with navigation. It was to widen and deepen one section while the state continued to operate the canal as usual. The original depth of 7 to- 7% feet of water was to be- increased from 10 to 10feet. October 24, 1909, the contractor, having excavated by means of a. ladder dredge to a point within 35 to 40 feet west of Bridge No. 101, discontinued there and moved the dredge to a point about 150 feet east of the bridge. October 28th at 1:15 a. m. the s(eam canal boat Paragon, pushing the canal boat L. E. Huntley ahead and towing the canal boats Valiant, John D. Fish, and Ella M. Hamilton astern on a hawser about 500 feet long, approached the bridge in the center of the canal. The boats were grain laden and drew 6 feet of water or less; 6 feet being the maximum draft allowed by law. When close to the bridge, the L. E. Huntley struck something sustaining injuries which caused her to sink at a point a little east of the bridge. The Paragon also struck, but cleared, while the Valiant fetched up and remained fast. The libel-ant, as owner of the boats -and bailee of the cargoes, filed this libel to' recover damages of the respondent on the ground that in excavat
The canal is open for navigation from May 15th to November 15th in every year and is used by many boats drawing 6 feet of water; canal boats, especially steam canal boats, generally towing in the center of the canal. At the close of the season, the water is run out through culverts and spillways, so that the bottom is bare. The rock was well known to some of the witnesses and was examined when the water was run off shortly after the accident.
The dredge is a large rectangular boat having what is called- a ladder extending in front which can be moved up and down, but in no other way. When in operation, the outer end of the ladder rests on the bottom. An endless belt runs around its length, carrying 51 steel or iron buckets some 2% feet wide by 18 inches deep. When the belt is set in motion, the buckets move at the rate of 25 to 27 a minute from the upper end of the ladder toward the water and gradually turn upside down! Their weight makes the belt sag down to the bottom, and they begin to bite in about 10 feet from the lower end of the ladder. From that point they mpve forward and upward, getting gradually straighter until they are carried in a vertical position full of whatever they have dug around a cylinder called a tumbler and then up the upper side of the ladder to a hopper at the upper end where they empty their contents and return via the underside to the bottom. The dredge is placed in the center of the canal fixed by a single spud in the bottom astern, and, by the movement of the bow by fasts on shore controlled by winches on the dredge, the ladder is enabled to work from one side of the canal to the other transversely .in the arc of a circle. There was absolutely no indication that the boulder had been displaced after the water was run out of the canal. The dredge had evidently worked nearly up to it. If the buckets had
The respondent was, so to speak, in possession and charge of the bottom of the canal where it was working. This necessarily follows from what it had contracted to do. The District Judge found, and we think on sufficient evidence, that the rock must have been raised during the time the respondent was at work. There is no conceivable cause for it excepting the work. Under these circumstances, we think the burden of explanation was upon the respondent. If it had offered no explanation at all, we think it would properly have been held liable. The explanation it does give goes only to show that the buckets did not raise the rock by' direct contact. While we are not convinced that the buckets actually contacted with and moved the rock, their operation on the bottom may have caused the change indirectly. Under the peculiar circumstances of the case, we think the respondent has not met the burden of explanation, and we come to this conclusion less reluctantly because the touching of the rock by two’ other steam canalboats between October 24th and 28th should have put it on inquiry whether something was not radically wrong at the point where its dredge had been working.
Decree affirmed, with interest and costs.