The opinion of the court was delivered by: INCH
The respondent New York Silk Dyeing Company, Inc., maintains a dock at Tenth street, College Point, in this district, where it received from time to time cargoes of coal consigned to it.
Libelant's barge Elsie with a cargo of coal consigned to said respondent arrived at this dock the morning of September 9, 1931, and was unloaded.
While the barge was at this dock it was damaged by contact with a half sunken float or raft. Libelant sues for such damage.
The original libel was against the respondent and two individuals, one George Jeuck and one Ike Isaacs.
Subsequently, libelant, by order, was permitted to file an amended libel. The case against Jeuck, the owner of the raft, was discontinued, at the trial, by consent, while Isaacs defaulted, and his default was duly noted.
The facts briefly are as follows: The coal boat Elsie was about 12 years old. She was about 100 feet long. Her capacity for a full load was 600 tons of coal. At the time of the accident she was carrying 236 tons and was drawing about 4 feet. Her sides were about 13 feet 6. Her bow was a "cutaway" to the extent of about 4 1/2 or 5 feet. Her master was named Wedell.
About 9 o'clock in the morning, September 9, 1931, at high water, the Elsie arrived at the coal dock of the silk company, carrying this load of coal consigned to it and was placed with her portside against the dock. Apparently she was in good condition.
This dock extended about 10 feet on each side of the Elsie. The position of the Elsie placed her stern about 12 or 15 feet from what is called Kramer's dock, while her bow pointed to the end of the respondent's dock. About opposite thie end, but in front of the property of another party, there lay, substantially submerged, a raft or pontoon. This raft was held in place by a line from a ring at the end nearest to the Elsie to the property in front of which it lay. The raft was approximately 43X19 feet. However, even at high water, sufficient of the raft appeared to indicate her presence.
In fact there is no difficulty in finding that all concerned knew at once, when the Elsie arrived, of the presence of this raft. This is not a case of some hidden or unsuspected obstruction.
The Elsie was thus berthed alongside this dock with a space of at least 6 feet between her bow and the raft, or almost 12 feet between her bottom and the raft, while her stern was approximately 12 feet from Kramer's dock.
The Elsie remained in the position described the rest of the day, and through the tides, without incident.
The silk company had previously hired the stevedore Isaacs by contract at 50 cents a ton, and he and his gang were present. The Hamburg (C.C.A.) 204 F. 590; The Teno (C.C.A.) 47 F.2d 197.
Isaacs and his workmen proceeded to start her unloading by means of a bucket on the end of a boom attached to a mast stationed on the dock which bucket would reach about to the middle of the Elsie. ...