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July 1, 1942


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

Recovery is sought for the coal barge Daly No. 67 from the steamtugs Walter Tracy and Mary T. Tracy for damages to her middle bow bitt, one or more port side cleats and her cabin, during the night of December 28-29, 1940. The Daly No. 67, loaded with 540 tons of coal, was in a tier of 10 or 12 loaded coal boats lying on the north side of Central railroad of New Jersey Pier 18, Jersey City, near the offshore pier end; she was the second boat outboard from the pier, and laid bow in, between the Sharpshooter to port and the Cape Mercy to starboard, both bow out. Lines were rigged as hereinafter stated.

She was smaller than the other boats in the tier, having a capacity of 600 tons, as compared with 1,000, 1,200 and 1,400 tons capacity of the others. She was so placed on December 16th and remained without damage or incident until the night in question. Whether she was originally placed as the number 2 boat from the pier, or at the end of 9 or 10 boats and worked her way in, is in dispute, though it makes little difference in the outcome, which theory be adopted.

 Soon after midnight of December 28th, the captain of the Daly No. 67 was awakened from his sleep by the sound of breaking lines, and promptly went out of his cabin to the after deck, to discover that the entire tier of boats was fanning out into the river, and that one of his lines to Pier 18 had snapped, as had his lines to the Sharpshooter, and that a bow line leading from the Cape Mercy to the pier had fouled and wrecked his cabin. He called to the Mary T. Tracy, which he then observed lying at the end of the tier -- as to this the evidence is sharply in conflict -- and that tug and the Walter Tracy shoved the boats back into alignment, as the result of a half hour of effort.

 Then the Daly No. 67 was towed by the Walter Tracy to a tier of Tice boats, lying at Pier 17.

 The libel alleges as to the tortious conduct of the tugs: "At about 11:30 p.m. the tugs Walter Tracy and Mary T. Tracy were manoeuvering about the pier, placing and removing the boats, and caused the stern line of one of the barges to the dock to part. This placed all of the strain on the bow line of the #67 with the result that the middle bow bitt and the line were broken and the cleats were started up and broken along its sides as the boats began to fan out in the direction of the river. * * * After the accident one of the tugs removed the #67 and placed it in the Tice tier where it should have first been placed."

 The specifications of the tugs' dereliction, apart from the stereotyped formula touching incompetence and lack of lookout, are: (a) Wrongful placing in the said tier instead of in the Tice tier; (b) failing to shift to the latter as requested; (c) disregard of bargee's protests (at being in the outer tier); (d) that the tugs in manoeuvering about the tier placed excessive strain on the lines and caused one of them to part; (e) overloading the lines of the inner boats; (f) failing to examine the lines of the inner boats to ascertain if they were sufficient to withstand the added weight of outer boats, and (g) failing to remove the latter to prevent breaking adrift.

 As to the first three, it will be seen that in effect there is a charge of neglect of duty arising from a contractual relationship between the Tracy tugs and the No. 67, and the evidence does not sustain any such cause, nor was there an attempt to prove one.

 Apparently Pier 18 is the property of the Central Railroad of New Jersey, and contains a coal dumper. Light coal boats are brought there by tugs hired by the owners or charterers of the barges, and are berthed at the south side of the pier in convenient tiers, awaiting loading. Then as to the No. 67 a Tracy tug took her around to the north side by the dumper, where she received her cargo. Whose duty it was to do that shifting did not appear; being loaded, the No. 67 was again shifted by a Tracy tug, to the tier in question, awaiting departure at the order of her charterer. Why the Walter Tracy instead of a Tice tug did that, was not shown; it was testified that the dock foreman directed that she be removed from the dumper, and that the Walter Tracy placed all loaded barges in one of three parallel tiers extending northerly from the north side of Pier 18, and endeavored to maintain these tiers of nearly uniform size. That this is the customary usage at that place, and the tiers run to a dozen or more boats, and that the pier foreman looks at the inner lines.

 It seems that this falls short of spelling out a contractual duty, between the Walter Tracy and the No. 67, which would survive the act of properly placing her in an available tier. If that is true, there was no breach of duty on the part of the Walter Tracy, in failing to remove the No. 67 from the outer tier at the request of her captain, assuming that he made such a request, which he asserts and the navigator of the Walter Tracy denies. The bargee says that he realized that his craft was too small to sustain the "heft" of the 8 or 10 larger and heavier laden coal boats, and that during the interval between December 16th and the night of the 28th he made the same removal request to the pier foreman and, of more importance, to his owner on the telephone. That conduct is consistent with his recognition that the Walter Tracy owed him no duty subsequent to December 16th, and since he holds both a navigator's and an engineer's license, and has owned and operated his own tugs, his understanding of the situation is significant.

 Since there was no effort to prove any breach of a contractual obligation on the part of the Walter Tracy to the Daly No. 67, so much of the specifications is deemed to have evaporated.

 Perhaps it is not a cause for wonder that the libelant's cause was pleaded and exhibited in a somewhat impressionistic manner, and with a somewhat casual inattention to detail. The breaking away occurred in the dead of a winter night, and libelant's only eye-witness was the bargee of advanced years, who was abruptly awakened from his well-earned rest, and who was confronted by a situation in which his powers of observation had to yield to the preoccupations of the moment. Naturally the libelant wants some one else to pay for his repairs, but wheher the claimant's tugs should bear the burden invites a careful study of the evidence.

 The alleged tortious conduct of the tugs must be considered separately: As to the Mary T. Tracy, it is asserted that she was lying "next to the outside boat" of the tier when the bargee came on deck. Incidentally he was confused about the side of his boat that he was on when he made that observation. He then "hollered over and I told him the boats broke loose"; then "she shifted and then went pushing, trying to hold the boats up".

 That testimony as to the Mary T. Tracy's position is not accepted because: It is opposed to the reasonable probabilities that this tug would be in the position stated at shortly after midnight, for there would be no cause for her to be there. Her log sheets show that she had in tow at near this time a light boat which she brought in to the north side of this pier, further inshore. While letting go of her, the navigator received a whistle signal from the Walter Tracy to assist in shoving the tier, which by then had broken away as stated. He responded to that request, and circled around the tier and put a line on an outer boat, and so assisted as requested. That testimony was convincing and was corroborated by the pilot of the Walter Tracy, and is accepted. It results that there was no cause shown against the Mary T. Tracy. The criticism of her log as to the insertion of the time "1.30 2.20 AM" is doubtless well founded, but I can see nothing reprehensible about adding the time as an afterthought, when the writer perhaps realized that the entry already made was deficient in that respect.

 As to the Walter Tracy, the fault attributed is the familiar one of landing a barge or two at the outer end of the tier "without seeing that the fastenings of the inside barges were proper". See The ...

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