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December 29, 1943


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In this cause recovery is sought by the bailee in possession of the stick lighter Dick C, for damage said to have been sustained on December 3, 1942, when she was moored to pier 27, South Brooklyn, on the southerly side, being one of three similar vessels lined up on that side of the pier, of which the Dick C was the second.

The Lumberjack was the outboard vessel, lying some 25 feet or so inside the pierend; an interval of 15 feet separated her from the Dick C, and that in turn was a like distance from the lighter Jane Anne -- all in the control of the libelant in this proceeding.

 The Dick C is about 90 feet long and 32 feet in beam; she was light, so that her freeboard fore and aft was about 8 feet, and perhaps 6 feet amidships, and she lay bow in, which means that her port side was alongside the pier.

 The steamtug Brooklyn, having steel carfloat No. 12 alongside to port carrying six freight cars and a locomotive, entered the slip between piers 27 and 29 at a few minutes after 11 a.m. Wartime, having come from the Atlantic Basin; this means that she proceeded up the stream against an ebb tide and rounded to when off pier 29, and circled inshore so as to bring the float to the float-bridge at the shore end of the slip between these two piers.

 The float was 287 feet long and 40 feet in beam, and as laden on this occasion had about 4 feet of freeboard. The tug Brooklyn is 91.7 feet long and 24.1 feet in beam. Thus the width of the tow was about 60 feet.

 The wind was out of the west, blowing at from 38 to 40 miles as hour, which had been the condition for at least the 24 hours preceding the time in question, and the water was rough in the river and at the outer part of the slip.

 The sole question for decision is of fact, namely, whether the carfloat No. 12 struck the Dick C while carrying out the maneuver which has been described.

 For the lighter, two eye-witnesses of the contact testified, namely: Mr. Benjamin F. Chase, the trasurer of the libelant corporation, and Frank Anderson who testified that on the day in question he was employed by the libelant as a lighter captain, and was in charge of these three lighters while they were at this pier, but that he was not in libelant's employ at the time of trial of this cause. They were standing on the lighter Lumberjack at the bow, and said that the carfloat No. 12 rubbed along her side, and then was so maneuvered as to strike the Dick C amidships on her starboard side, within their direct vision.

 Anderson testified that he had examined the Dick C below as part of his routine duties at about 7:30 on that morning, and that she had no water in her and was in all respects in good condition. Immediately following the striking, which he observed, he boarded the Dick C and found her taking water through open seams in her starboard side, and in a very few minutes it was of such a depth as to reach his knees. Pumps were at once rigged with the assistance of the witness Aronsen, and the lighter was kept afloat.

 A survey was held on the following day, attended by representatives of the respondent, the claimant of the Brooklyn and the confloat No. 12, and the following items of damage appear in the survey: Starboard side: Standing knees and anchor stocks broken; King posts pushed in; side planking broken; second wearing piece broken, etc. In other words, these items of damage were consistent with the collision testified to by the libelant's witnesses.

 The respondent called Ilich, the captain of the tug Brooklyn, who was in charge of navigation; Rubinich, the mate of the tug, who was stationed on the bow of the carfloat as she approached the float-bridge; Faredich, the floatman, in the same position as the last witness; Simpkins, a deckhand on the tug, who was standing on her bow as entrance to the slip was made; and Casper, an engineer in the employ of the respondent, who was in the cab of the locomotive carried by the float on the center track and nearer the bow than were the freight cars which were equally distributed on the two side tracks toward the stern of the float.

 All of these latter witnesses testified that there was no contact between the float and the lighter.

 It does not seem to me that there is necessarily any false swearing, in spite of this ...

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