Tice Towing Line v. O'Boyle

DAVIS, Circuit Judge. This is an appeal by the Tice Towing Company from a decree of the District Court, dismissing its libel and finding that the barge Bowling Green was damaged in an accident which was caused by the “careless and negligent seamanship or navigation upon the part of those in charge of the Patriotic” in taking a tow through the draw of the plank' road bridge over the Hackensack river in New Jersey on November 20, 1918. She was towing the barge Cape Mercy, stern first, on a short hawser, and immediately behind her, in tandem style, the Bowling Green, a barge of 1,000 tons’ capacity. The barges were so close together that there was scarcely any space between them. The tide was running ebb, setting over against the center abutment, and a strong west wind of about 20 miles an hour [898] was blowing in tbe same direction, toward tbe abutment. Tbe tow was going at about 8 miles an hour, under “a single bell and a jingle.” As tbe Bowling Green was.going tbrougb tbe draw, ber port bow struck tbe abutment with such force that a 12x12 timber, sticking out at that point, went clear tbrougb ber bull. There is for determination a question of fact as to when this timber became loosened from the abutment and projected, so that it pierced tbe Bowling Green. Tbe appellant contends that tbe bridge was out of repair; that tbe evidential timber bad been loosened in some way at some prior time, and allowed to remain projecting, and in consequence it struck tbe port bow of the Bowling Green, and that tbe counties of Hudson and Essex, which own and operate tbe draw, are liable for tbe damage done to tbe barge, because they negligently maintained tbe bridge in that condition. Several witnesses, who saw tbe bridge frequently and knew its condition, testified that before tbe Patriotic went through tbe draw that day tbe abutment was in good repair. William P. Dugan, superintendent of .the Lincoln Highway bridges, whose duty it was to inspect this bridge, testified that prior to the day of tbe accident be did not “see any timbers sticking from tbe center piece, tbe center abutment, out about tbe knuckle of tbe bridge.” Thomas P. Cunningham, engineer at tbe bridge, said “its condition was good,” but, after tbe Patriotic went tbrougb, “three or four planks all loosened out.” Prank E. Norton, tbe “bridge attendant,” testified that before “tbe tow came tbrougb tbe draw that day” tbe condition of tbe center abutment “was all right. It was in good condition as far as I could see. I was looking at it every day.” But “after tbe tow went tbrougb” it was “pretty well smashed up, after they hit it.” “It looked to me as if tbe 12x12 was smashed and tbe planks on it also.” What probably happened was that tbe first barge, Cape Mercy, bit tbe center abutment at the knuckle, broke some of tbe planks, and loosened tbe 12x12 timber, so that it stuck out and pierced tbe bull of tbe Bowling Green as she came along. This is indicated by tbe testimony. Mr. Cunningham testified on this subject as follows: “Q. Did you notice whether or not tbe first boat, in passing tbrougb tbe draw, struck either side of tbe draw? A. Well, I think it was tbe first one that did strike. “Q. Well, what side did this boat bit? A. It bit on tbe west side of tbe smoothing iron. “Q. Was that on tbe same side— A. Same side as where tbe Bowling Green was supposed to have bit.” * * * “Q. Well, now, what part of tbe barge struck what part of tbe bridge? A. Why, tbe first one, I imagine, whatever name it was, I don’t recall tbe name, that was the one that bit first; that is when I beard tbe planks begin to creek; of course, it sprung. “Q. And then what did you bear next? A. That’s all; tbe tow went right tbrougb. “Q. In other words, you beard tbe first barge strike tbe center abutment — is that right? A. Yes, sir. “Q. You didn’t see it strike — you beard it strike? A. I saw it; I was looking at it.” Prank E. Norton, tbe “bridge attendant,” gave similar testimony: “Q. Did you see either of those boats that were in tow of tbe Patriotic strike any part of tbe drawbridge ? A. Yes. “Q. What barge bit what part of tbe bridge? A. Tbe first barge bit about here near tbe knuckle — about there; tbe center pier, we call it. “Q. How close to tbe knuckle would that be? A. I should say about four feet this side of where it turns. “Q. What part of tbe first barge bit that point? A. About tbe center. “Q. And what happened after that, if anything? A. Then she swung over towards tbe quarter pier, along on tbe other side of tbe channel, and then it swung back again. Then it bit that part that supports tbe sidewalk, and threw our sidewalk about four inches out of line. “Q. Which barge? 4- The second barge done that. * * * “Q. Did you take note of tbe condition of tbe center abutment about tbe knuckle before tbe tow came tbrougb tbe draw that day? A. Yes; I seen it. “Q. State what its condition was. A. It was all right. It was in good condition, as far as I could see. I was looking at it every day. “Q. Did you notice its condition after tbe tow went tbrougb ? A. Yes. “Q. What was its condition? A. Pretty well smashed up after they hit it. “Q. Just state what that smashed condition consisted of. A. It looked to me as if tbe 12x12 was smashed, and tbe planks on it also. “Q. How many planks were smashed over the side, if any, after tbe tow passed tbrougb tbe draw? A. Two or three of them.” We are satisfied, and find, that tbe center abutment was in good condition before tbe tow passed tbrougb; that tbe .Cape Mercy [899] collided -with it loosening several planks, and caused the 12x12 timber to project so that it pierced tbe port bow of tbe Bowling Green. Tbe next and only question is whether or not those in charge of the Patriotic were negligent while going through the draw, or in attempting to go through, under the conditions then existing. If they were, was the collision due, either wholly or in part, to their negligence? If they were negligent, their negligence consisted in going through the draw at a time when a careful and prudent captain would not have done so, or in going through the draw in a negligent manner, or in both. Capt. Joseph R. Ford, who had been navigating the Hackensack river and taking tows through that draw for 25 years, said that it was bad seamanship to attempt to pass through that draw, of 60 feet width, at an ebb tide, the wind blowing 20 miles an hour, with a tow of two barges of 1,000 tons each. Capt. Edsall Smith, master of the Patriotic, himself said it would have been safer not to go through on ebb tide. All agreed that the safe time to go through was when the wind was not blowing so hard. The only or principal argument advanced to the contrary was that “you would not be able to pay your bills at the end of the month” if tows were not taken through under conditions existing at that time. Capt. Ford further said that it was decidedly not good seamanship, under the conditions, to tow those barges through that draw under a speed of “one bell and a jingle,” “full speed,” or half speed and something more. Capt. West, appellant's expert, nowhere denied this. Consequently the speed with which the Patriotic went through the draw under the circumstances stands uneontradicted as an example of bad seamanship. The learned trial judge found that “the proximate cause of the accident was careless and negligent seamanship or navigation upon the part of those in charge of the Patriotic.” Great weight should be given to the findings of a trial judge, who saw and heard 'the witnesses testify. They should not be disturbed, unless the error is manifest and clearly against the evidence. The Dolbadarn Castle, 222 F. 838, 138 C. C. A. 264; The W. H. Flannery, 249 F. 349, 161 C. C. A. 357; The Beaver, 253 F. 312, 165 C. C. A. 94; The Mahanoy, 258 F. 114, 169 C. C. A. 200; National Dredging & Lighterage Co. v. Turney Transportation Co. (C. C. A.) 281 F. 315; American Merchant Marine Ins. Co. v. Liberty Sand & Gravel Co. (C. C. A.) 282 F. 514; Low Transportation Co. v. Davis, Director General of Railroads (C. C. A.) 9 F.(2d) 392. We see no reasons why they should be disturbed here, and so the decree is affirmed.