
    BLEAKLEY TRANSPORTATION CO., Inc., as owner of THE Scow HARVARD, Libellant, v. M. F. HICKEY CO., Inc., Respondent, and THE Tug FRANK BUCHANAN, Impleaded.
    No. 19727.
    United States District Court E. D. New York.
    June 28, 1956.
    
      Purdy, Lamb & Catoggio, New York City, for libellant, by Thomas J. Irving, New York City, of counsel.
    Maeklin, Speer, Hanan & McKernan, New York City, for respondent, by Gerald J. McKernan, New York City, of counsel.
    Foley & Martin, New York City, for impleaded respondent, by Warren J. Martin, New York City, of counsel.
   GALSTON, District Judge.

The libel alleges that on September 15, 1950 the libellant’s scow, Harvard, loaded with sand and gravel consigned to the respondent, was placed at the dock of the respondent and was seriously damaged by grounding on a hard, uneven bottom, which caused a twisting and straining of the scow. The fault charged is that the respondent failed to maintain berths and approaches to the dock in a safe condition for scows carrying cargoes to the respondent.

The answer of the respondent denies essential allegations of the complaint, and alleges that the tug Frank Buchanan picked up the scow Harvard and placed the scow in tow; also that the scow was loaded with a mixed cargo of sand and gravel weighing between nine hundred and fifty, and a thousand tons. From the Gallagher Brothers Whitestone Stake-boat, together with another loaded scow, the tow proceeded to respondent’s plant located on the north bank of Flushing Creek, just west of the Whitestone Parkway. The respondent alleges that either at respondent’s plant or adjacent thereto, the tug Frank Buchanan picked up a scow, Sands Point, which lay outside of another scow, the Marion, and that the Marion was alongside respondent’s bulkhead. It is further alleged that the Frank Buchanan left the scow Harvard drifting in the stream, and that it proceeded upstream with the scows Jacob Cox and Sands Point. Thereafter, at a different stage of the tide, the Frank Buchanan returned to the waters adjacent to the respondent’s plant and attempted to land the Harvard outside of another scow. Then the Frank Buchanan departed, leaving the Harvard stranded. , The respondent’s answer also makes allegation of the arrival on the following day, September 16, 1950, of the tug New Rochelle at a location where the libellant’s scow was aground, and succeeded in pushing the Harvard up alongside the scow Marion. On September 16th, in the afternoon, so the answer of the respondent continues, the tug Flushing arrived at the respondent’s plant towing a cement barge which took the Marion out of her berth, and then the Flushing pushed the Harvard in alongside the bulkhead and placed the cement barge on the outside of the Harvard; and shortly thereafter the cement boat in the inboard berth was placed adjacent to the bulkhead, and the Harvard placed outside of the cement boat. The captain of the Harvard left the scow on September 16, 1950 in the evening, and at a time, so it is alleged by the respondent, when the scow was in a leaking condition, and it remained unattended until Sunday evening, September 17th. On September 17th the Harvard, lying with an in-shore list, took considerable water. A runner came and brought a gasoline pump to start pumping her out. The allegation is that on September 18, 1950 the respondent commenced discharging the cargo aboard the Harvard, and the operation was completed on September 19th. It is the contention of the respondent that the damage sustained by the Harvard was not due to any lack of care on the part of the respondent, but was caused wholly by the want of care on the part of the libellant and those in charge of the scow Harvard.

After the filing of the respondent’s answer, the respondent filed a petition against the tug Frank Buchanan, alleging in substance that the damage sustained by the Harvard was caused by the want of care of the libellant, and by the tug Frank Buchanan.

The Bronx Towing Line, Inc., as claimant of the tug Frank Buchanan, filed its answer to the libel and the petition, in effect denying liability, and denying the essential allegations of fault charged in the petition to it, and alleged that on September 15, 1950 the tug Frank Buchanan placed the scow in a safe berth at the respondent’s plant.

The proof offered by the respective parties resulted in much contradiction — each side, of course, pressing for its fullest advantage, and there is not much in the way of documentary evidence to make the situation crystal clear. In part, the conflict may have arisen because witnesses are called upon to testify as to what happened in September 1950. Out of the many conflicts it appears to me that the following must present a fair statement of the events that preceded the damage to the scow Harvard:

The respondent M. F. Hickey Co., Inc. (hereinafter to be referred to as Hickey) ordered from Gallagher Brothers Sand & Gravel Corporation a load of sand and gravel to be delivered at its plant in Flushing Creek, with the special instruction that the delivery was to be on the rising tide or high tide on September 18, 1950. The evidence discloses that the plant was closed on Saturdays and Sundays, and September 15, 1950 fell on Friday. Gallagher Brothers, as Noyse of that organization testified, gave the job to the Bronx Towing Line; and it was the Bronx Towing Line which took the scow Harvard in tow at Whitestone. The difficulty arose because the Bronx tug, Frank Buchanan, attempted to make delivery of the loaded scow on Friday, September 15th, instead of on'Monday, the 18th.

In violation of Hickey’s order, the scow was left stranded in the waters adjacent to the Hickey plant some time during the night hours on Friday, September 15th. At the time, the tide was low.

The testimony of Morgan is important and credible. He made a good witness, and I credit his testimony. At the time in question he was captain of the Harvard. In resumé he described taking on the cargo of sand and gravel at Huntington, weighing possibly from nine hundred and fifty to a thousand tons. The scow was then taken from the loading plant to the Whitestone Stakeboat. With the load, the scow had about an inch and a half of freeboard in the middle, about a foot at the bow and six inches at the stern. At the Whitestone Stakeboat, the tug Frank Buchanan took the Harvard in tow with another boat, the Jacob Cox. The tow left Whitestone Stakeboat at about six o’clock p. m. on the 15th. The Harvard was towed bow first, and was the second boat in the tow. They proceeded then to the Hickey plant, but, said Morgan, they did not get close to the dock. The tug did take the scow into Flushing Creek, arriving there at about nine or nine-thirty p. m. Morgan said, in answer to the question, “And what did the tug do at that time ?”: “Tried to get me to the dock, but it could not because it was low water.” , Morgan said the other scow was taken up to the Colonial dock, and his lines were taken from the Harvard so that they could get the other scow out. At the time, the Sands Point, a light boat, was at the Hickey dock. There was also a light cement boat. Morgan testified:

“Q. Now will you tell us just what the tug did with your boat at that time? A. Well, he delivered the boat up to Colonial and came back.
“Q. First of all, before he delivered the boat up to Colonial, what did they do with your boat? A. They left me in the stream — in the middle of the stream. They left me there; they couldn’t get me to the dock, so they left me there.
“Q. What did they do with the lines ? A. I pulled the lines aboard.
“Q. What was that? A. I pulled the lines aboard.
“Q. Did you have any lines out after the tug left to go to the Colonial? A. Yes, I had one line on the Sands Point. He threw me a small towing line, so I had a line to the stern.
“The Court. To what boat was that?
“Witness. To the Sands Point. The light boat was on to the dock and I had a line on him.
“Q. Now, captain, I think you said that the tug couldn’t get you into the dock at that time. A. No, it was in the stream. He couldn’t get me into the dock.
“Q. Why couldn’t he? A. Because there was not enough water there. The boat was on the bottom.”

The Harvard lay aground where the Frank Buchanan had left her until about eight a. m. on September 16th. It was then that the tug Flushing removed the scow Sands Point, to which the Harvard had been hanging on a forty-feet line.

In the light of the failure of the tug Frank Buchanan to make delivery of the scow at the respondent’s bulkhead at t’he required time, on September 18th, and in accordance with the custom of delivery at high tide or rising tide, as that custom was established at the trial, the libel as against the respondent must be dismissed. Even if the uneven bottom adjacent to the bulkhead be weighed against Hickey, it is not the fault of the respondent that the tug Frank Buchanan proceeded in violation of the direct order of Hickey and of the established custom to make a delivery on September 15th. The damage to the scow Harvard resulted from the fault of the tug Frank Buchanan.

The libellant may have a decree against the tug Frank Buchanan.

Appropriate findings of fact and conclusions of law will be filed concurrently with this opinion.  