In re David J. Conroy, Inc.

Second Circuit

In re David J. Conroy, Inc.

26 F.2d 240, 1928 U.S. App. LEXIS 3645, 1928 A.M.C. 1416

CourtCourt of Appeals for the Second Circuit

DecidedMay 7, 1928

DocketNo. 261

StatusPublished

Cited by1 cases

This text of 26 F.2d 240 (In re David J. Conroy, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re David J. Conroy, Inc., 26 F.2d 240, 1928 U.S. App. LEXIS 3645, 1928 A.M.C. 1416 (2d Cir. 1928).

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Opinion

PER CURIAM.

Huntley on this appeal confesses error in the decree in his favor against the Conroy, acknowledging that the causal connection is too tenuous between the tug’s original fault and the lighter’s damage. This leaves two questions: The Conroy’s faults of navigation, and the drill’s failure to recover or to mark the lost casing. How there can be any doubt of the first we confess ourselves unable to conceive. The Conroy proved herself unable to meet exactly those conditions that she was bound to expect. The ice, the tide, the drill, the real or supposititious Harlem River tow, the undoubted Hell Gate tow, the possible combination of all these; she was bound to be fit to deal with all of these when she left her pier, and if her power, her rig, or her make-up was improper, she has only herself to thank; she had no business to be out at such a season so loaded, if she was unable to fend against what she must meet. \

The drill’s fault has given us more pause. That she was bound to use all reasonable care to recover the broken easing we agree; indeed, she acknowledges as much. That she did use all available means we are on the whole disposed not to dispute; the judge has accepted her story, and it seems to us not unreasonable. However, the circumstances of the search were so difficult as to raise in our [241]*241minds a question whether Nelson, the master, ought to have concluded, from his failure to find it, that the casing had been knocked flat. Sweeping, which might have given him an absolute assurance in open water, could hardly be conclusive evidence with the ice coming upon him in such quantities.

We agree that it was impracticable to mark the spot before the Winceeo struck, and that the most he or his employer could have done was to advise the Lighthouse Department that he might have missed the casing. Assuming that in this he was at fault, still it seems to us only speculation to suppose that any warning would, or could, have reached the Wineeco in time; at least the trial developed no evidence or suggestion as to how this could have been done. We cannot decide the ease on what might suggest itself to us merely as possible, as, for example, that the Lighthouse Department would or might have advertised the situation in such a way as to bring it to Huntley’s knowledge. If that was to be argued, the proof should have been made. As the case 'stands, it seems to us quite gratuitous to assume that notice was practicable to the whole Harbor.

Decree reversed, so far as it holds the tug to Huntley; otherwise, affirmed.

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PER CURIAM.

Huntley on this appeal confesses error in the decree in his favor against the Conroy, acknowledging that the causal connection is too tenuous between the tug’s original fault and the lighter’s damage. This leaves two questions: The Conroy’s faults of navigation, and the drill’s failure to recover or to mark the lost casing. How there can be any doubt of the first we confess ourselves unable to conceive. The Conroy proved herself unable to meet exactly those conditions that she was bound to expect. The ice, the tide, the drill, the real or supposititious Harlem River tow, the undoubted Hell Gate tow, the possible combination of all these; she was bound to be fit to deal with all of these when she left her pier, and if her power, her rig, or her make-up was improper, she has only herself to thank; she had no business to be out at such a season so loaded, if she was unable to fend against what she must meet. \

The drill’s fault has given us more pause. That she was bound to use all reasonable care to recover the broken easing we agree; indeed, she acknowledges as much. That she did use all available means we are on the whole disposed not to dispute; the judge has accepted her story, and it seems to us not unreasonable. However, the circumstances of the search were so difficult as to raise in our [241]*241minds a question whether Nelson, the master, ought to have concluded, from his failure to find it, that the casing had been knocked flat. Sweeping, which might have given him an absolute assurance in open water, could hardly be conclusive evidence with the ice coming upon him in such quantities.

We agree that it was impracticable to mark the spot before the Winceeo struck, and that the most he or his employer could have done was to advise the Lighthouse Department that he might have missed the casing. Assuming that in this he was at fault, still it seems to us only speculation to suppose that any warning would, or could, have reached the Wineeco in time; at least the trial developed no evidence or suggestion as to how this could have been done. We cannot decide the ease on what might suggest itself to us merely as possible, as, for example, that the Lighthouse Department would or might have advertised the situation in such a way as to bring it to Huntley’s knowledge. If that was to be argued, the proof should have been made. As the case 'stands, it seems to us quite gratuitous to assume that notice was practicable to the whole Harbor.

Decree reversed, so far as it holds the tug to Huntley; otherwise, affirmed.

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26 F.2d 240, 1928 U.S. App. LEXIS 3645, 1928 A.M.C. 1416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-david-j-conroy-inc-ca2-1928.

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