The John E. Berwind

270 F. 569, 1920 U.S. App. LEXIS 1979

• Court: Court of Appeals for the Second Circuit
• Decided: December 15, 1920
• Docket: No. 72
• Status: Published

Opinion

HOUGPI, Circuit Judge

(after stating the facts as above). [1] That the tug scraped along, touching the boats (or some of them) lying one outside the other near the end of Thirty-Seventh street pier, is very likely; indeed, this ordinary harbor contact was intended. That the Edna touched the Price is more doubtful, and that any contact occurred as the Edna’s master says it did seems to us physically impossible.

The Edna projected considerably beyond the tug’s bow, and'she may have touched the Price; but the only result to the Price of whatever contact occurred was to “bulge in” her bustle strap “in the neighborhood of half an inch.” This strap is an iron band of half or üve-eighths of an inch in thickness. How much of a blow would be necessary to produce such indentation we are not informed, but it is certain that no mark indicative of such contact was ever found on the Rdna. We regard it as unproven that the Edna, rather than the tug, came in contact with the Price.

[2] PLarbor navigation requires vessels, especially of the Edna’s class, to expect and be able to withstand reasonable rubbings and contacts, particularly when making landings and lying at piers. The maneuver of the Berwind was most ordinary, and it is quite beyond experience that a vessel equipped for the business reasonably to be expected could be sunk by such contact as is proven.

[3] The burden of showing that libelants’ boat was not fit for the very ordinary harbor episode above described was on claimant, and we are of opinion that by evidence largely uncontradicted that burden has been borne.

[4] The Edna was admittedly at least 25 years old, the master in charge was making his first trip on her, and, though he denies it, there is persuasive evidence that he had spent a great deal of time pumping, and complaining to those near him in the tow of the necessity of so doing.

The surveyor’s report is uncontradicted to the effect that some of the Edna’s “bottom planking” was very loose and “open in the seams, with hardly any oakum.” The oakum generally in the bottom and sides was “very old and rotten,” the knees and beams were “very old, some of them decajred, some of them split,” and the spiking on the bottom was partly corroded off.”

We are persuaded that this case requires an application of the “ancient practice of the admiralty to scrutinize closely claims resting on the loss of old or weak vessels” (The Bordentown [D. C.] 16 Fed. at page 273), and the evidence above summarized leads us to apply the language of Judge Addison Brown in The S. O. Pierce (D. C.) 40 Fed. 767:

“Tlie libelant’s boat was a very olcl one. Under the evidence it is very doubtful even whether tlie blow was more than one of, the ordinary contacts of navigation. Under such circumstances as [we] have named, there is too much doubt as to any substantial injury caused by the blow to warrant any decree. The entertainment of such demands, and any attempt to give damages for the comparatively slight blow that this must have been [if there was any blow] would be more likely to result in injustice, and lead to the multiplication of suits on ill-grounded and fictitious claims, than to promote the- cause of substantial justice.”

The decree appealed from is reversed, and the cause remanded, with instructions to dismiss the libel, with costs in both courts.