Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The tug J.P. McAllister, belonging to McAllister Lighterage Line, brought the barge McAllister No. 85 of the same line, loaded with steel billets, alongside the starboard side of the steamship Aelous, owned by the United States, for the purpose of having the cargo transferred to the steamship. The Aeolus lay on the north side of Pier 15, Hoboken, with her bow inshore and her stern extending to about the end of the pier. The Aeolus was to have a dock trial of her propeller before going to sea and her master gave orders not to take on the steel billets, apparently because taking cargo aboard would delay the dock trial.
The tug McAllister had left the barge alongside the Aeolus, when her master was notified by those in charge of the Aeolus to shift the barge to the south side of Pier 15. She accordingly proceeded to return to the barge in order to remove her from the slip. As she started toward the barge she noticed that the starboard propeller of the steamship was in motion and her master requested that the engines be stopped. The bargee also requested that the engines be stopped.
In accordance with these requests the officer Wiebe sent a messenger to the engineroom to stop the engines. They were stopped, the lines from the barge to the ship were cast off, the tug ran a line from her bow to the bow bitt of the barge, and began to back her out of the slip.
When the tug had got the barge halfway out, the starboard propeller of the Aeolus suddenly began to turn over and the suction carried the barge in and upon the revolving propeller so that her starboard side was holed and she careened and dumped her cargo.
The Lehigh Valley Railroad, as bailee of the cargo of steel billets, filed the libel in the first of the above suits to recover damages from the tug McAllister and the latter brought in the Aeolus under the 56th Rule in Admiralty (28 USCA § 723). In the second suit the McAllister Lighterage Company, as owner of the barge, filed the libel against the Aeolus to recover damages for injuries to the barge, and the Aeolus brought in the tug McAllister under the 56th Rule.
By a special Act of Congress, the Aeolus; though a government vessel operated by the Navy Department, may be sued, as though owned by a private individual. The trial court divided the damages in each suit upon the theory that both the tug and the Aeolus were negligent and equally responsible.
The United States, as owner of the Aeolus, appeals and insists that the tug McAllister was alone responsible for the accident and should be held solely liable; and McAllister Lighterage Line, as owner of the tug McAllister, likewise appeals and contends that the Aeolus should be held solely liable. We agree with the latter contention.
The District Court filed an opinion in which the judge said:
"In order to place responsibility upon the Aeolus it is necessary to find that the starboard propeller was twice placed in operation; first, just prior to the tug's entry to the slip to remove the barge, and second, after the lines of the barge were cast off and the tug had started to pull the barge away. Such finding can, I think, be made, but it depends solely upon the evidence offered by the claimant for the tug.
"The testimony upon behalf of the Aeolus, so far as what actually took place with regard to the starting and stopping of the propeller, is so confused and contradictory as to be unreliable."
The testimony of the witnesses for the Aeolus, who narrated the accident, was, except that of the engineer, Dwyer, taken by deposition, while the testimony of the witnesses for the McAllister Lighterage Line was taken in open court. The latter testimony carried conviction to the trial judge. The main difference between the two lines of evidence was that the former was either expressly or in arguendo to the effect that the engines were stopped but once, and only after the barge had come into contact with the revolving propeller. A finding in accordance with contentions of the Aeolus would disregard the views of the trial judge as to the credibility of the witnesses for the McAllister Line, whom he saw and believed. He said: "I have concluded * * * to rely very largely upon the testimony of the barge captain, who, as I noted at the trial was an intelligent and apparently unbiased witness." Moreover, the contention of the Aeolus ...