43 F. Supp. 245 | S.D.N.Y. | 1941
On September 21, 1938 and at about 3:-30 A. M., the scow “No. 29”, bound for Arverne, and the scow “Jim” were taken in tow, tandem fashion, at the Gallagher Bros. Sand & Gravel Co. stakeboat No. 1 in upper New York Bay, near the Statue of Liberty by the tug “Republic No. 5”. The “No. 29” bore about 900 tons of sand, so that its freeboard was 2 feet 4 inches at the bow, 7 inches midships, 12 inches aft and its draft was 9 feet. Its rail was 24 inches above the deck. The testimony that it was seaworthy is uncontradicted.
A light rain fell all that morning. The velocity of the north-northwest wind that was blowing was recorded at 4 A. M. as 13 miles per hour at Sandy Hook and 15 at the Battery and was undoubtedly less at the stakeboat. The tow proceeded down New York Bay without incident and when it was nearing Norton’s Point the tug “Gloria O” came alongside and was instructed by the captain of the “Republic No. 5” to go outside Norton’s Point and ascertain the extent of the ground swell which is an important factor in navigating eastward toward Rockaway Inlet. The “Gloria O” returned to report a heavy ground swell, a not uncommon sea condition there in all weathers, whereupon the captain of the “Republic No. 5” decided to tie up the scows at the seawall outside the mouth of Coney Island Creek. The tow was split with the tug “Gloria O” taking the scow “No. 29” and the “Republic No. 5” taking the scow “Jim”. The “Jim” was tied up first off 27th Street and the tug’s log reports it there,at 7 A. M. The “No. 29” was moored a few minutes later
Witnesses’ estimates of the direction and velocity of the wind, even from those presented by the same litigant, were so^ much at variance that we find the Weather Bureau reports, which are translated throughout this opinion in terms of Daylight Saving Time on which the tugs operated, the only secure basis for our judgment. There was conflicting testimony whether or not South Brooklyn, north and northeast of the scene was low, and offered no break for the wind that was blowing, that the water north of the barges’ mooring place was shallow in 1938 and that the mouth of Coney Island Creek is well protected from wind a short distance east of the position chosen by the tugs. We do not think any of these an important consideration in the decision.
The libellant had chartered its scow to Gallagher Bros. Sand & Gravel Co. Inc., and, although the true nature of its charter did not appear at the trial, it must necessarily have amounted to a demise. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417. Both the “Gloria O” and the “Republic No. 5” were chartered to the same company for towing services, the tugs being bound “to perform any towing services required” by the charterer. The masters and crews of the tugs were under instructions from their owner to take their orders from one Mr. Will, the charterer’s dispatcher. We construe these as time charters. Leary v. U. S., 14 Wall. 607, 81 U.S. 607, 20 L.Ed. 756; Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, at page 278, 60 S.Ct. 937, 84 L.Ed. 1197. It was Will who had directed the captain of the “Republic No. 5” to take the two scows from Stake No. 1 to Mill Basin and Arverne. Upon tying them up at the seawall, the captain of the “Republic No. 5” again called Mr. Will and told him he was unable to continue the voyage because of the heavy swell beyond Norton’s Point. We do not recall that he gave further details and regard it as improbable in view of his testimony at the trial that conditions of comparative calm prevailed. He was told by Will to leave the boats there and Will further assigned each of the tugs a new task.
No witness questioned the safety of the berth given the “No. 29” at 7 o’clock and we find that it was then safe as a fact. The libellant argues, however, that the danger which later developed should then have been anticipated. We do not find this claim supported by the evidence.
No evidence was offered of any fact or any available information that would put the tugs on notice at half past 3 in the morning, when the voyage began, that a storm was approaching. The Battery, at that time, recorded a north wind of 15 miles an hour. True, a light rain was falling. It was September and a remote reference to the imminence of equinoctial storms was made on the trial but we are unable to impose a reasonable expectancy of equinoctial storms on any one day from a mere reference to that month. We can find nothing at all that should have deterred a prudent navigator from setting out on the voyage in the early morning and nothing transpiring between the start of the voyage and the tying up at the seawall at 7 o’clock that would have then warned him, as a reasonable man, to expect weather that would threaten the safety of the scows at the seawall later. There had been no considerable increase in the wind velocity nor any change in its direction. An expert witness who testified for the libellant said that a northeast storm is frequently accompanied by high winds but the records of the Weather Bureau at both Sandy Hook and the Battery disclosed that the wind never blew from the northeast on the 21st and for that reason the testimony of this expert, based as it was on an assumption that it did, is without value. No reason to expect a northeast wind has been submitted and in this connection we note that the Weather
The libellant pursues his argument, however, that after the bad weather developed the tug captain having failed to deliver the scow at the destination originally intended was under a continuing duty to return and care for it when bad weather actually arrived. But the tug’s duty here was that fixed by the directions received pursuant to the charter and which it was obeying. The duty imposed upon a tug to return to its tow when the tow is menaced by bad weather arises where the tow has been left at an unauthorized point by a tug performing a towage contract. The Golden Rule, 1925, A.M.C. 297. We have shown how Will, the starter of Gallagher Bros., told the captain of the “Republic No. 5” to “leave the boats there and tow two of my other boats to another point.” Objection was made to the admission of this statement in evidence but we think it is competent; it is clearly not hearsay, and
Midway in the trial the libellant moved to bring in Gallagher Bros. Sand & Gravel Co., Inc., as respondent. The motion is denied. Suit against the Gallagher corporation, as charterer of the libellant’s barge, was always open to the libellant. His motion now we regard as untimely and in any event we see no prejudice in its denial.
The libel is dismissed.