Donelly v. The Lime Rock

55 F. 126, 1893 U.S. Dist. LEXIS 45

• Court: District Court, S.D. New York
• Decided: March 30, 1893
• Status: Published

Opinion

BROWN, District Judge.

On tlie afternoon of May 10, 1892, the steam lighter Lime Rock, desirous of obtaining a berth occupied by die Enterprise and the libelants-' canal boat Alpha, moored outside of her along the bulkhead in Gowanus creek, shoved those two boats up the creek by pushing against the stern of the Enterprise. As a consequence of moving them in that way, the Alpha's stern line to the Enterprise was parted, and the Alpha, after first dropping back alongside the Enterprise more or less, ran ahead again when the latter was checked, until, as the libelants allege, she struck the bulkhead and knocked a hole in her bow, from which she sank fci a few minutes. The above libel war, filed to recover the damages.

The claimants contend that the Lime Bock did not touch rise Alpha, and that the Alpha did not Mt the bulkhead; and they suggest that the hole knocked in her bow some two or three feet above her bottom, may have been caused by running against some sunken water-logged timber, such as, it is said, has been occasionally found in that region. The Alpha was loaded and deep in the water, and her rail was about six feet below the deck of the Enterprise. Two witnesses testify that the canal boat did hit the dock. A very intelligent lad who was standing on the stringpiece oí’ the bulkhead, watching the maneuver, and wan within about 50 i'eet of the canal boat, says that the Wo»’ shook all the bulkhead, and the two others say they felt; the shock. Several witnesses for the claimants testify positively that the canal boat did not come in con-i’ act with the dock. Rut the master of the Mine Rock had ids attention otherwise occupied, and others of them plainly were not in a position to see whether sue did strike or not; it is doubtful whether ¡lie rest were giving any special attention to that point. 1 am inclined to believe the libelants’ witnesses rather than those who did not see the contact. The bow was broken in and no other probable explanation is given. The mere possibility of a sunken log withdnt any evidence of its presence, is not enough to overcome this strong corroboration of the libelants5 witnesses. I cannot give much weight to the argument, that such a contact was impossible, from -the position and the lines of the Alpha., beer.use T do not think there is any certainty whatsoever with regard to the data on which the argument is founded. The bow line may have parted or rendered, end the distance the stern swung off is uncertain. The chief opposing circumstance is the statement that Ihe bow line did not part, though that, is not at all certain; evident!\ not much attention, was paid to It. Rut even if it did not Barn, It may easily have rendered sufficiently to admit the contad: with the bulkhead, and such rendering is a common occurrence.

As regards one circumstance, moreover, to which several of the claimants5 witnesses tesfify very positively, it seems to me most probable that they are mistaken; viz.: in their statement that the Lime Rock's stem pushed inside of the rudder post of the Enterprise, i e. between that and the bulkhead. Considering that the Lime Bock was five feel wider than the Enterprise, and that the latter lay right alongside the dock, even if the stem and the rudder post were only six inches across, the Lime Bock could not have put her stem on the port side of the rudder post, that is, on the side towards the bulkhead, without thrusting her stem at least three feet out of the line of the bulkhead; and her pushing in such a position would be improbable, since it would be pushing the quarter of the Enterprise against the dock. I have no doubt that the witnesses have reversed the position of the tiller and the blade of the rudder about which they testify; that at first it was the tiller which was towards the bulkhead, and that the Enterprise began to push on the blade at least three feet to starboard of the rudder post; that she then backed until the tiller was put to starboard and the blade turned towards the dock out of the way of the tug’s stem, and that the Lime Eock then put her stem in its natural position for pushing the Enterprise, namely, at least three feet to starboard, of the rudder post, and very likely somewhat more than that. In that position in shoving up the Enterprise, the Alpha would necessarily drop astern, as one of the claimants’ witnesses says she did. No confidence is to be placed in the estimates of the number of feet of the various changes. If the stern lead of the Alpha’s line was at first considerable, she would certainly have dropped back sufficient to encounter the port bow of the Lime Eock, and in that way her stern would be swung off by direct contact with the Lime Eock; and despite the testimony of the defendants’ witnesses to the contrary, I have little doubt that is what happened. It is immaterial, however, whether that be so or not; for all the witnesses agree that while moving up, the Alpha’s stern did swing off considerably, and when the forward motion of the Enterprise was checked, and no attention paid to the deeply-loaded Alpha, she would necessarily move forward again, as the evidence shows she did, until her way was checked. There is no evidence that her stem did not swing out enough to enable her bow to reach the dock.

The claimants, doubtless, had a right to move the Alpha away to get at their own berth; but in doing so they were bound to use reasonable precautions against accident. There were three modes of procedure, either of which would have been proper and sufficient; viz.: to go alongside of the Alpha; or, if pushing was resorted to, then either to have the Alpha made fast by lines running both ways to the Enterprise, or if not that, then by having a man to tend the lines of the Alpha and render them properly, as was done on the Enterprise, to prevent sudden breaking. Seasonable care required one of these things to be done. I do not perceive any fault on the part of the libelants’ boat. I must, therefore, allow a decree for the libelants, with costs.