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 barge Harvester carried a cargo of wheat from Buffalo to New York and was proceeding eastwardly through the Barge Canal in tow of steam tug Pearl Harbor. The grain belonged to Louis Dreyfus & Co. and was carried under a contract that the latter had made with Hedger Transportation Company which for that purpose had chartered the Pearl Harbor and four barges (one of which was the Harvester). The carriage was subject to the New York Produce Exchange form of contract which provided that:
"The boat owner and/or operator and/or carrier shall be responsible for all damage caused by their negligence or fault but shall not be liable for losses caused by dangers of navigation, fire, or collision, except where caused by their negligence or fault."
The Harvester was the hawser barge, towed by the Pearl Harbor on two 75-foot hawsers. She was 123 feet long and had a beam of 31 feet. Behind her was the Scully 114 feet by 29 feet, the Benedict 112 by 29 feet, and the Rafferty 112 by 29 feet, all towed tandem on two hawsers and close coupled in the order named. On August 25, 1928, when between Middleport and Gasport lift bridge, the Harvester struck the concrete wall on the south bank of the canal near her starboard bow corner, to the damage of her hull and of the cargo. The tow of the Pearl Harbor was equipped with a steering apparatus by the wheel of which, placed on the Scully, the Harvester could be swung some distance to port or starboard.
At the time the accident occurred the tug R. Lenahan, having a beam of 19 feet, was proceeding westward in the canal with a tow of six light barges. Each of them was 21 1/2 feet wide, and they were towed two abreast, so that they had a total width of 43 feet. The length of the first tier was 149 feet, the second 109, and the third 149. None of the barges was equipped with a rudder or other steering apparatus, but they were close coupled, and their tug relied on this close coupling to keep them in line.
The Hedger Transportation Company contends that the Harvester collided with the concrete wall of the canal because the Lenaham's tow crowded her and got on the south side of the canal in a part of it where the channel was only 75 feet wide and the canal itself had a water surface of only 117 feet in width. It is said that in such a place there was not room for the tow of the Pearl Harbor to nagivate with safety and the Lenaham should have held back and waited for her to pass. The Lenaham, on the other hand, argues that the wheelman on the Scully lost her head, ported her wheel so far and left it dogged that the Harvester ran into the concrete wall. The court below exonerated the Lenahan from liability, found that there was sufficient room for the tows to pass but for the negligent action of the Pearl Harbor and her tow, and held the Hedger Transportation Company as carrier primarily and the Pearl Harbor secondarily liable for the damage suffered by Dreyfus & Co.
This appeal is taken by the Hedger Transportation Company, the carrier, and by Pearl Harbor Company, as owner of the tug, and also by W. E. Hedger Company as owner of the Harvester. Dreyfus & Co. filed cross-assignments of error. In our opinion both parties were in fault and the damages should be divided.
The place where the Harvester struck the south wall of the canal was at the east end of the Watson spillway, and it is there that it is charged that the Lenaham tow crowded the Pearl Harbor and her barges. This spillway is a concrete structure built into the south bank of the canal, having an apron 62 1/2 feet long. At each end of this apron and forming part of the spillway are two concrete wing walls sloping outwardly toward the channel. Under normal conditions but three feet of the wing walls are above the water surface on the bank and the rest of them is entirely under water. The barges of the Pearl Harbor were drawing about 10 feet, and when they proceeded on the southerly side of the canal they could only get 4 feet outside of the southerly bottom angle of the channel (which was 75 feet wide by 12 feet deep) without rubbing against the wall on their starboard sides. The water surface from the center line of the 75-foot channel to the southerly bank of the canal has a width of 37 1/2 plus 24 feet, or 61 1/2 feet.
The width of the water surface at the spillway between the center line of the channel and the northerly bank is 37 1/2 feet (that is, one-half the width of the channel), plus 18 feet, or 55 1/2 feet. The Lenaham drew 10 feet and her light barges only 2 feet of water. Her master testified that, when he had swung his tow to the starboard to pass the Pearl Harbor the Lenaham was 14 feet from the northern bank of the canal, and his barges were only 3 feet from it. Owing to the draft of the Lenaham, that was as near the shore as he could get. That estimate would leave the line of barges 3 feet from the bank or 9 1/2 feet away from the waters which the Pearl Harbor and her tow claim that they had the right to appropriate.
Proctors for the Pearl Harbor, however, insist that the testimony first elicited from the master of the Lenahan to the effect that his tug was 25 to 30 feet from the top surface of the canal showed that his tow was south of the middle of the channel and crowding the Pearl Harbor tow (fol. 972). But we think there plainly was confusion in this statement and that the master in giving those figures was referring to the distance of his tug from the Pearl Harbor and not from the north bank. This seems evident from the subsequent testimony (at fol. 973). Moreover, the statement of the master made later in the record, that the Lenaham stayed as far away from the northerly botton angle of the canal as she could and at least 5 feet from it, so that she should not sheer, is thought to furnish additional evidence that the Lenahan's tow was off side at the time of the collision. But, if we assume that the Lenahan kept 5 feet from the bottom angle, her tow, if trailing straight, would still have been 1 1/2 feet to the north of the center line of the channel.
The trial judge found that the Lenahan "kept her tow well to the north side of the channel. The head of the two was close up to the bank though the tail may have swung off to mid-channel." For this finding there seems to have been ample evidence. This is so whether the Lenahan came as near to the north side as 14 feet or kept 5 feet from the bottom and thus 23 feet from the bank.
The Gasport lift bridge was about 1,200 feet east of the spillway. When the Lenahan was under this bridge she exchanged a one-whistle signal with the Pearl Harbor who was then about 1,000 feet west of the spillway. The Pearl Harbor pulled over toward the south side of the channel in accordance with the signal. The Lenahan also pulled to starboard and got her tow as close to the north side of the canal as she could. When the Pearl Harbor was passing the Lenahan, Brunner, who was stationed at the wheel, on the bow of the Scully, concluded that there was danger of collision between the Harvester, his hawser barge, and the on-coming tow of the Lenahan. He accordingly put his wheel hard-a-port, dogged it, and ran over to the starboard side of the two to see how far off the spillway was in order not to hit the easterly wall. In the meantime his wheel, set hard-a-port, was swinging the Harvester toward the wall of the canal. When he discovered that she was going farther to the starboard than she ought, he ran back, threw off his dog, and started to rotate his wheel in the opposite direction, but too late to prevent the Harvester from colliding with the wall of the canal on the easterly side of the spillway. The Harvester passed the first tier of the Lenahan's tow without any contact. The ...