The opinion of the court was delivered by: BYERS
These causes were consolidated for trial; in the first the owner of the coalboat Mary S. seeks to recover from the City of New York for damages said to have been caused by the ferryboat Astoria while engaged in salvaging the Mary S., and in the second the City seeks an award for the salvage services.
The first cause was instituted by libel filed February 28, 1933, against the Consul Fuel Corporation, because on December 6, 1932, the Mary S., being loaded with a cargo of coal at Perth Amboy, N.J., which was consigned to the respondent at its dock at the foot of Washington Avenue, Long Island City, N.Y., was permitted to go adrift on that date, as a result of which the coalboat was said to have been damaged.
On August 21, 1933, an amended libel was filed, in which William J. Garvin, Inc., was joined as respondent, on the theory that the latter, as stevedore, was implicated in the negligent act whereby the coalboat went adrift.
A second amended libel was filed September 24, 1934, in which the City of New York was joined as respondent, and therein it was alleged that, after the Mary S. went adrift, the ferryboat Astoria attempted to render assistance and, while so doing, caused and allowed the ferryboat to come into collision with the Mary S. and caused her to swing alongside the ferryboat and strike it again; and that the Astoria placed the Mary S. outside of an ash scow which was moored and, in so doing, brought the port side of the Mary S. into collision therewith.
The fault of the ferryboat is charged as follows:
"In that those in charge of the ferryboat 'Astoria,' while attempting to render assistance to the coalboat 'Mary S.,' were negligent in causing the said coalboat 'Mary S.' to strike against the ferryboat and to strike against the aforesaid ash scow with damage resulting to the ferryboat 'Mary S.'"
A so-called cross-libel was filed in the second cause on November 20, 1934, and an amended cross-libel was filed November 6, 1935, in which the City makes claim for the salvage services so rendered.
The Mary S. was a coalboat, 101 feet long, having a beam of 24 or 25 feet, with 12 1/2 foot sides. On December 12, 1932, she was carrying either 231 or 331 tons of coal -- the exact tonnage does not appear from the testimony. Her capacity was 500 tons and her draft at the time is said to have been 2 1/2 feet, leaving 10 feet of her sides above water.
She was made fast outside of one or two other coalboats at the foot of Washington Avenue, Long Island City, and broke adrift at about 3:00 o'clock in the afternoon, due to improper handling of her lines by either the consignee or the stevedore. The bargee was ashore when the boat was being moved, but says he was able to jump aboard just as the Mary S. was going adrift.
Washington Avenue runs about east and west and comes to an end in the easterly channel of the East River opposite Welfare Island, and the barge was carried stern first in a flood tide of the strength of about 3 1/2 to 4 miles an hour up the river, and had reached a point opposite the northerly end of Welfare Island when the Astoria, making out of 92nd Street on the Manhattan side on her 3:00 p.m. trip to Astoria, observed the plight of the coalboat.
At that time two or three men were on board, namely, the bargee (if he was there) and two of the stevedore's hands who had attempted to move the boat from her original mooring. These men waved their arms and called for assistance, and the ferryboat responded, and is criticised for the way in which she attempted to avert disaster to the coalboat.
Had the Mary S. continued without assistance, she would either have crashed into the ferry slip on the Astoria side, or have been carried in the strength of the tide up through Hell Gate -- perhaps to strand on Hog Back sough of Wards Island.
It does not appear that there were any other vessels in the vicinity which could have rendered assistance, and the theory of the libelant's proof in the first cause is that the ferryboat ...