The opinion of the court was delivered by: BYERS
The stick lighter Broadway, the property of the libelant, was damaged some time between 8 o'clock on the night of October 4, 1931, and 6:30 o'clock the next morning, and the object of this suit is to recover for the damages so sustained.
The lighter was lying outside two other similar vessels at the end of the Barrett pier at Edgewater, New Jersey; that pier occupies a portion of the slip lying north of the Spencer Kellogg pier at that place, and extends out 102 feet, 6 inches from the bulkhead; there is a space 58 feet, 8 inches between it and the Spencer Kellogg pier, which is 467 feet long.
The Broadway arrived on Saturday afternoon, October 3rd, at about 3:00 o'clock, and was made fast, heading down-stream, to an adjoining lighter (the Sidney) on the starboard side; inside of the latter was another similar craft headed up-stream.
The length of these lighters is not given, but they averaged 30 feet in beam, and are assumed to have been between 90 and 100 feet in length; the Barrett pier is about 77 feet wide, and therefore the lighters projected beyond its width, toward the Spencer Kellogg pier, but to what extent has not been established by the evidence; Libelant's Exhibit 1 (a sketch made by a marine surveyor who was called as a witness) indicates that the projection was 8 feet, 10 inches. This was an important element of the situation, but, like certain other significant matters, it was not clarified by testimony.
The claimant's twin screw motor ship Atago Maru docked at the north side of the Spencer Kellogg pier at about 8:00 o'clock in the morning of October 3rd, and was therefore at her berth when the Broadway arrived. The ship is 454 feet long over-all, and has a beam of 57 feet, and her stem was 70 feet from the bulkhead, which means that her stern extended into the North River about 60 feet beyond the end of the pier; as she lay, the port side of the Broadway was about opposite the foremast of the ship, where the latter is said to be about 40 feet wide at the water-line and about 50 feet at her deck.
It will be seen that a projection of the southerly side of the Barrett pier for the full depth of the Spencer Kellogg pier would embrace a slip only 58 feet, 8 inches wide, which could scarcely receive a vessel having a beam of 57 feet, and therefore it is to be regretted that the space that intervened between the bow of the Broadway and the starboard side of the ship has not been definitely shown.
If the ship had a width of 40 feet at the water-line about opposite the Broadway, the latter could have been distant from the sides of the ship a matter of 9 1/2 feet, if her bow was flush with the south side of the Barrett pier; in the absence of proof, it will be assumed that the distance was not less than 5 feet, because it is thought that those responsible for berthing the lighter would not have brought her much closer to the ship without seeking to ascertain which of the two craft would be leaving the berth first. There is no evidence that such an inquiry was made.
On Monday morning, October 5, 1931, at about 6:00 o'clock, the ship backed out of her berth under her own power but assisted by tugs, and it is alleged in the libel that, in the said maneuver, the lines which the steamer had out to the dock were cast off, and she commenced to pass out into the river and, in so doing, her stem was permitted to swing to starboard, and came into collision with the Broadway, and with the lighter inside the Broadway; and, in colliding with the Broadway, the steamer struck her port bow corner, and caused the port side to roll under water, and then caused her to roll to starboard and port, and tore out the starboard forward bitt, raised the deck, tore off rail, and did considerable other damage to the lighter, and caused the latter to roll over so as to let water pass over its deck and down into its hatches, and caused the lighter to list and throw part of its cargo into the water.
The libel therefore describes the happening as though but three lighters occupied the berth in question, when the damage was caused.
At the trial, however, it appeared that there was a fourth lighter, named Anzac, which, in some undisclosed way, reached a position outboard of the Broadway, and was made fast to the latter, some time during Sunday, October 4th.
The entire handling of and participation by the Anzac in what took place is a mystery from start to finish. Her captain was called as a witness, and his testimony is that he left his boat on Saturday afternoon, October 3rd, light, at pier 22 in Brooklyn, and, when he came down to that place on Monday morning, he found that the boat was gone, and telephoned to his office for orders, and thereafter reported to the Spencer Kellogg pier above described, and expected to find his vessel there; that is to say, he went to the Barrett pier, but his vessel was not there. He learned that she had gone adrift at some undisclosed time, and he finally caught up with her at the 65th Street pier of the New York Central Railroad Company in Manhattan.
The Anzac was observed in position outside the Broadway on Sunday, but no one is able to say whether she was heading down or up river, or how she was made fast to the Broadway, except that the libelant's witness De Luzio, who acted as pier watchman on Sunday, saw the four boats lying snug, close together; that is, 3 or 4 feet apart, with two lines "one in the front and one in the back"; he last saw them at 8:00 o'clock at night, but not later, because of fog.
At 5:15 a.m. on the morning in question, the Anzac was in collision with the yacht Placida, which at that time lay anchored toward the Jersey side of the river, off the Columbia Yacht Club, which is situated at 86th Street on the Manhattan side; the lighter was sighted a few hundred feet up the river, drifting down in the tide, and the yacht's captain and mate were called by the quartermaster on duty, and enough of the crew were summoned to hold off the lighter from the port side of the yacht after she had struck the port bobstay of the latter; the lighter passed alongside and then astern, and it was observed from the yacht that there was no one on board the Anzac; at about 6:40, as has been stated, this lighter was taken in tow by a New York Central tug, which tied her up at pier 65, North River, on the Manhattan side.
How the Anzac got from Brooklyn to Edgewater, who made her fast there and how, and the circumstances of her departure are not the subject of any testimony at all.
In the libelant's brief, the theory of what took place is thus advanced: "When the steamer struck the Broadway and hit her backwards as described by deLuca, the boat went in between the Broadway and the Anzac, pulling her free, pushed her stern end out and swung her bow down against the steamer as indicated by the black paint found on the bow of the Anzac." The difference is ...