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THE SONARD

DISTRICT COURT, E.D. NEW YORK


March 18, 1941

THE SONARD; THE MATTON NO. 20; THE C.M.C. NOS. 10, 20, 30 AND 40; THE RALPH E. MATTON; Petition of JOHN E. MATTON & SON, Inc.

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

On Reargument.

This is a motion for "reargument and reconsideration" of the decision dated February 13, 1941, on behalf of the petitioners in the limitation (the second) cause, for the reason that a decree should not have been ordered against the barges as well as the tug. This, because of the well-known rule that the navigation and make-up of a tow are in the control of the tug.

 But in this case neither of those things was involved.

 This tow was moored to the wall, as the decision relates, during the hours of darkness, and the let-go whistle blown by the tug was premature, if at once obeyed. It was obvious to the bargee of the second barge, who was on the wall to handle lines, that as to the fourth barge, at least, the mooring could not be released without danger to the westbound tow until the latter should have cleared the fourth barge at the wall. It must have been equally obvious to the bargee on the latter vessel; therefore the let-go whistle did not exonerate them of some responsibility for the exercise of intelligence in the handling of lines, where blind obedience threatened peril; the tug could not move ahead until their co-operation rendered that possible; they knew the signal from the tug was blown from better than 400 feet ahead of the last barge, and that the tug's navigator could not see whether clearance had been accomplished, because of the prevailing darkness. It seems to me that the whistle signal, under these circumstances, was not peremptory, but was intended to direct that the lines be cast loose as soon as that should be safe, and that for failure so to co-operate, the barges participated in the fault which caused the damage.

 Correction of this judicial error, if such it be, need not be long delayed.

 The decree should go as the decision indicates.

 So far as consequential damage is concerned, the intention was to leave that matter so that claimants could elect whether to proceed in the State Courts or before the Commissioner; naturally it was not intended that their claims should be twice litigated.

19410318

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