The Three Brothers, No. 124

No. 124 | 2d Cir. | Apr 2, 1906

TOWNSEND, Circuit Judge.

The assignments of error challenge the correctness of this decision, on the ground that the damage did not occur through any negligence on the part of the city, but through the negligence of the tug, in the performance of its towage service under conditions known to be dangerous, in attempting to tow the four scows at once when her power was insufficient, in not keeping a proper lookout, and in not taking proper care of. the scow after it had been injured. Inasmuch as the removal was at the request of the city officials, no blame could be imputed to the tug for complying with said request in a proper manner. The uncontradicted evidence of the officers of the tug that she was abundantly able to perform the towage service upon which she was engaged, the indications, in view of the evidence, that under the conditions encountered it would have made no difference whether there had been four boats or only one in tow, and the fact that the absence of a lookout was not charged as a fault, and was immaterial under the circumstances, amply support the conclusion of the court below that the tug was not negligent in these particulars. Furthermore, if, as contended, the city, negligently caused the scows to be left in a dangerous position — a question to be discussed later — the master of the tug was amply justified, under the directions given, in endeavoring to remove all of them at once, as he did.

The question as to the negligence of the tug in not taking proper care of the scow after she had been injured was not discussed by the court below. But, in any event, we think the evidence fails to show negligence on the part of the master of the tug in this regard. During all the time that the Walter J. was lying against the upper end of the 132d Street Pier, her captain had an opportunity to examine her condition and the extent" of her injuries, and'to determine whether it would be dangerous to move her; and, inasmuch as he failed to notify the master of any objection to her removal, the tug cannot be held liable for the result of .such failure. We concur, therefore, in the conclusion of the court below that the tug was free from fault.

The serious question in the case is as to the negligence of the city in leaving the scows in an exposed position at the 134th Street Pier. It appears that this pier has been used as a dump for the department of street cleaning forsix years, that the scows had remained there in safety during the first half of the ebb tide, and that the captain of the Walter J. thought the scow was safe there, and told the master of the tug to leave him there; urging that there was too much ice to take the. scow away. But, on the other hand, it appears that there is no pier above this one at 134th street to protect it; that the ebb tide sets directly in on this pier; that the scows were made fast on its upper side; that several scows have been hurt there and overturned by the ice; and that spiles under the dock have been carried away by the ice. No witness on the part of the city has testified that the berth was a safe and proper one at the time in question. On the contrary, it appears from the testimony of the witnesses .for the libel-ants, confirmed, in large measure, by that of the witnesses for the respondent, that the dump at‘this pier has been closed on account of ice, .and that the berth is a dangerous place in the winter time when ice is running. The District Court, in Bleakley v. City of New York, 139 F. 807" court="S.D.N.Y." date_filed="1905-07-28" href="https://app.midpage.ai/document/bleakley-v-city-of-new-york-8758323?utm_source=webapp" opinion_id="8758323">139 Fed. 807, has found that this is so, and that accidents have occorred there, causing injury to boats, “because the place having no protection from the north, and the ebb tide setting the ice on the pier, it is obviously not a place where boats can be left with any reasonable assurance that they will not be injured.”

Under the well-settled law as laid down in the cases cited by the court below in its opinion,' we think the city was liable as bailee for negligence.

The decree is affirmed, with interest and costs.