
    THE DAUNTLESS. BOUKER CONTRACTING CO. v. BROOKLYN ASH REMOVAL CO. et al.
    District Court, E. D. New York.
    April 1, 1930.
    Single & Single, of New York City, for libelant.
    Alexander, Ash & Jones, of New York City, for Brooklyn Ash Bemoval Company, Inc.
    Foley & Martin, of New York City, for Dauntless Towing Line, Ine.
    Burlingham, Veeder, Hasten & Fearey, of New York City, for Long Island B. Co.
   CAMPBELL, District Judge.

The Dauntless Towing Line, Inc., the steamtug Dauntless, and the Long Island Bailroad Company were impleaded under Buie 56 in Admiralty, on the petition of the respondent, Brooklyn Ash Bemoval Company, Ine.

The dump scow No. 75 H, owned by the libelant, was chartered to the respondent by the libelant on December 2, 1926, at a daily rate, time to start Friday, December 3, 1926, and continue until scow was returned by the respondent to place designated by libelant, upon the understanding and agreement that the scow was to be returned to the libelant in the same condition as when taken, to be free from all charges and liens for towage, wharfage, watching, etc., that the scow and the man in charge were to' be entirely under the respondent’s control at all times, and that the scow was to be kept afloat at all times.

On December 3, 1926, the scow 75 II was delivered to the respondent.

Shortly prior to December 6, 1926, the steamtug Dauntless No. 5, owned and operated by the respondent impleaded, Dauntless Towing Line, Inc., towed the scow 75 II light through the draw of the Long Island BaiFroad, which crossed Flushing creek, to the plant of the respondent at Flushing, without encountering any difficulty in passing through the draw.

The sides of the 75 H were straight up and down, and there was no warning that the abutments of the bridge were not straight up and down, and the water at the bottom of the same width as at the top in said draw.

On December 7, 1926, at about 12:05 o’clock a. m., the steamtug Dauntless, owned and operated by the respondent impleaded, Dauntless Towing Line, Ine., arrived at the Long Island Bailroad bridge, which crosses Flushing creek, with dump seow 75 H, three-quarters loaded with mud, in tow on two short hawsers, having taken her in tow at the plant of the respondent at Flushing, at about 11:50 o’clock p. m., on December 6,1926.

The Dauntless blew for the bridge to open, but, as trains were passing or expected to pass over the bridge, the draw was not opened until 1:10 o’clock a. m. ■

The Dauntless had expected to take the 75 II through at high tide, but the tide fell some while she was waiting for the bridge to open.

On the opening of the bridge the Dauntless proceeded to attempt to take the 75 H through, but did not succeed, as the 75 H stuck below the water line.

The 75 H was clear on the surface of the water, and the steamtug Dauntless, which had rope fenders on her bow, brought the same slowly into contact with the end of the 75 H, and attempted to push the 75 H back out of the draw, but without success, and at 3:10 a. m., being unable to get the 75 H out, the steamtug Dauntless left to report to her owner.

The tide continued to fall, and the port side of the 75 H did not seem to go down the same as the starboard side, but the starboard side of the 75 H did go down until the 75 H had a list of two feet.

It was impossible when the Dauntless left for tbe draw to close, because, while tbe scow itself was clear, there was a temporary cabin on tbe scow which made tbe closing of tbe bridge impossible, and tbe supervisor of tbe bridge of tbe respondent impleaded, Long Island Railroad Company, ordered bis men to remove tbe temporary cabin on tbe 75 H, which they did by chopping it off.

While this was being done tbe 75 H dropped some distance, and at low tide bad made a considerable drop.

The bridge was closed and trains passed over it.

Tbe captain of tbe scow called tbe attention of tbe men employed on the bridge to tbe danger of tbe position of tbe scow, both on'the falling tide and when it again began to rise, and also protested when tbe employees of tbe respondent impleaded, Long Island Railroad Company, under orders of its supervisor of bridges, cut off tbe temporary cabin of tbe 75 H.

Tbe 75 H came up with tbe tide and, a little after 8 o’clock a. m., lifted one end of tbe draw about two feet.

About 10 o’clock a. m. the wrecker of tbe Long Island Railroad Company arrived and lifted tbe other end of tbe draw to keep it level.

Tbe supervisor of bridges of tbe respondent impleaded, Long Island Railroad Company, was in charge on tbe bridge, and its marine superintendent gave orders.to tbe tugs.

There was a clearance on both sides of tbe bow of tbe 75 H, but she seemed to be stuck under water about twenty feet aft of tbe bow.

Two tugs, tbe Progressive and Russell, No. 18, came and attempted, under tbe orders of tbe marine superintendent of tbe respondent impleaded, Long Island Railroad Company, to push the 75 H through tbe draw, but she was not finally released until tbe afternoon, when she was taken out of tbe bridge above it.

Neither tbe steamtug Dauntless nor tbe Dauntless No. 5 bad a line on tbe 75 H, nor came in contact with her while she was under tbe bridge, from tbe time tbe Dauntless left at about 3:10 a. m. until after tbe 75 H bad been released, when tbe Dauntless No. 5 towed her back to tbe plant of tbe respondent at Mushing, from which she was later towed light through tbe same draw without any trouble being encountered.

Tbe Dauntless did return between 9:30 and 10 o’clock a. m. but found tbe Long Island Railroad men in charge and took no part.

Tbe Dauntless No. 5 came up with a boat in tow, but tied up as she could not get through.

Tbe scow 75 H was ablento go through tbe draw light without difficulty, and I agree with tbe supervisor of bridges, of tbe respondent impleaded, Long Island Railroad Company, that, unless something happened to tbe scow or tbe bridge, tbe scow should have come through tbe draw loaded, if she could come through tbe draw light.

Tbe evidence shows that she could come through the draw light, and also that there was nothing tbe matter with tbe scow, as her sides were straight when she was chartered to respondent and after she came out of tbe draw.

Tbe damage on tbe port side of tbe scow was due to squeezing, and there was no bottom damage.

Tbe damage was not caused by tbe negligence of tbe respondent, tbe captain of tbe scow, or any one to whom respondent intrusted tbe scow, and tbe cause of tbe damage has been fully explained.

Tbe damage was not caused by any negligence of tbe steamtug Dauntless or tbe Dauntless Towing Line, Inc.

Tbe damage was caused by tbe negligence of tbe respondent impleaded, Long Island Railroad Company, in failing to give notice that tbe sides of tbe abutment were riot straight up and down, as it seems to be clearly established that they were not, because, by reason of some obstacle or inequality of the side of tbe abutment, tbe side of tbe scow was squeezed and held in tbe draw; and tbe .negligence of tbe servants or agents of the^said respondent impleaded, Long Island Railroad Company, in the removal of tbe temporary cabin on tbe scow, in their failure to watch and open tbe draw when tbe tide rose, and not permit tbe scow to come up under tbe draw and lift one end, and in tbe manner in which it removed tbe scow.

A decree may be entered in favor of tbe libelant against tbe Long Island Railroad Company, with costs and tbe usual order of reference, and dismissing .the libel as against tbe respondent without costs, and also dismissing tbe libel and petition as against tbe steamtug Dauntless and tbe Dauntless Towing Line, Inc., without costs.  