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December 26, 1933


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This cause involves damages occasioned by the sinking of the coal barge Onward on September 29, 1932, about 2:30 p.m., soon after she had passed down Newtown creek, at about low water, under the Greenpoint Avenue Bridge. The barge was in tow of the tug Sybil, which had her bow ahead alongside, to starboard of the tug; approaching the bridge it became apparent that the tow must hold well to the Queens shore, as a diver was working on the bottom under the bridge, on the port side; in obedience to a signal from a bridge tender, the tow, after stopping, entered the space between the piers, so close to its starboard hand that the barge scraped along the abutment on that side.

The barge was carrying about 500 tons of coal, which brought her freeboard to about 1 1/2 feet midships. She was 100 feet long, had a moulded bow, was 25 feet in beam, and had 13 feet sides. Her draft therefore was approximately 11 1/2 feet.

 Approaching the northerly end of the abutment, the bargee heard a crash of wood and reported to the tug's captain that the barge had hit something; his next words were: "Captain of the towboat, your Honor. It was the side of the bridge only." Later he said she did not strike the abutment, she grazed along only.

 He then noticed that the barge was rapidly filling, started his pump, and jumped on the tug. Sinking followed in about ten minutes from the striking.

 The libellant asserts that the barge struck either or both of two 3 or 4 inch pipes, which were imbedded in the har bottom of the channel and held in a vertical position under water, and that the city of New York, or the contractor who built the bridge, or both, are liable for the damage.

 That the sinking did take place at about 1,500 feet from the bridge, admits of no discussion. As to all other matters, except the previous good condition of the barge, the testimony presents several issues of fact.

 Over eighteen months after the sinking, the barge was pumped out, raised, and towed to Mariners Harbor, Staten Island -- without incident -- and there the interior of the hull was inspected and revealed a 12-inch hole in the bow, just at the turn of the bilge, "a little to the starboard."

 That condition is the basis of libellant's claim, upon the theory that the hole was caused by the barge's striking one or both of the said pipes.

 It is deemed that the evidence establishes that there were two such pipes 4 feet or less off the easterly abutment of the bridge, and about 18 feet south of the northerly line thereof, and that they were imbedded in the hard bottom of the creek, and not in the concrete base of the abutment, or in any concrete which had ever been used in the construction of that pier of the bridge. At low water in the afternoon of September 29, 1932, the taller pipe was 4 feet from the abutment and its top was not less than 11.5 feet from the surface of the water; the shorter pipe was bent down stream, and it was inside the taller one, and its top was not less than 13.5 feet from the surface of the water.

 These facts were established to the knowledge of libellant (except as to what held the pipes) through the written report of diving operations conducted for it on October 7, 1932. The original libel was filed in February, 1933, against the Sybil alone, alleging fault in proceeding through the draw of the bridge so as to bring the barge into collision with a stationary object and known obstruction; grazing the abutment; striking the submerged pipes; and navigating as stated, at unusually low water. The tug was claimed by the Waterfront Ash Removal Company, which answered, denying negligence, and asserting that the sinking was due to striking an uncharted obstruction.

 This answer was filed after the claimant had become insolvent.

 An amended libel was filed on April 28, 1933, in which the city of New York was named as respondent, asserting that the latter "laid a concrete base upon the creek bottom extending out into the channel in which were imbedded two pipes over 8 feet long standing upright," and that the city failed to dismantle and remove the said pipes extending up from the creek bottom but left them in an upright position whereby they became a menace to navigation; and that the barge Onward rode upon them upon the occasion in question and a hole was punched in her bow, causing her to fill and sink.

 The City answered on June 3, 1933, and in effect denied the presence in the creek of the concrete base with two pipes imbedded therein and projecting up 8 feet ...

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