Osterhoudt v. Federal Sugar Refining Co.

14 F.2d 319 | S.D.N.Y. | 1926

THACHER, District Judge

(after stating the facts as above). No one saw the sequence in which the Queen Anne’s line to the dock slipped around the bitt and the lines of the Francis Scully parted. Plested, the captain of the Francis Scully, testified that he was awakened by the operations of the tug, got up, and started his fire. He continued his testimony as follows:

“Q. Captain, after you dressed, forgetting all about this towboat, tell me when you saw the first indication of the boats breaking away and how it happened. A. I happened to glance over towards' the dock, and I saw the boats starting to move. I opened my door, and just as I did my line was creaking. When I got outside of the door, the line from the middle cleat from the Queen Anne, that was fast to the eye on the dock, was in the ice. After that I went around to the starboard side of my boat to render my lines, to ease the surge on my lines, so that they would not carry away. But I could not get there fast enough. The line was gone. ’ ’

Both he and the captain of the Universe agree that the Queen Anne’s line to the dock did not part, but that it slipped on the bitt aboard the Queen Anne, dropping down upon the ice.

Capt. Plested’s statement, that his boat was already in motion before he left his cabin, satisfies me that his lines had already parted then. But still there is no direct testimony to show whether they parted before or after the line from the Queen Anne slipped on her bitt. It is, however, to be plainly inferred from the circumstances that the lines of the Francis Scully must have parted first. So long as the lines of the Francis Scully held, she could not move appreciably, and if she did not move, except as her lines permitted, there was nothing to cause the line to the Queen Anne to slip off the bitt and fall on the ice. Furthermore, I am satisfied from the evidence that the lines of the Francis Scully were old and worn, and not adequate to withstand the strain resulting from conditions which were obvious. After the accident these lines were sent to a junk shop. There was no-effort to produce them on the trial, and the inference may therefore be properly drawn that, if they had been produced, their defective condition would have been disclosed.

I am therefore constrained to find the Francis Scully at fault, and that the proximate cause of collision was the defective condition and consequent parting of her lines. No one can say that the single line from the Queen Anne to the dock alone would have held the two barges, if it had not rendered under the strain put upon it after the Francis Scully had parted all her lines. In any event, the fact that it was not so securely fastened as not to slip under the added and extraordinary strain is not sufficient to charge the Queen Anne with fault. There is nothing to show, aside from the mere fact that it did slip under a strain which it was not intended to withstand, that it was not properly fastened. Certainly there was no duty upon the outside barge to be so securely moored to the shore as to save the inside barge after all of her lines had parted.

The- Francis Scully was owned, controlled, and operated by the respondent Federal Sugar Refining Company. As owner of this barge, its liability for the damage resulting from the neglect of its servants charged with the responsibility of seeing that she was properly moored is clear, and it becomes unnecessary to consider the additional ground for liability alleged by reason of the control exercised by it over vessels lying at its dock.