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December 6, 1944


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The libelant's cause is for damage to the starboard stern quarter cleat of her coal barge Rockport on November 11, 1943, which is claimed to have resulted from negligent maneuvering of the claimant's tug Patence while taking the Rockport in tow at the 96th Street rack in the East River.

The items set forth in the survey of November 22, 1943, are consistent with such damage.

 The libel alleges in part:

 "Fourth: On or about November 11, 1943, the Rockport was lying securely made fast at the right racks at 96th Street, East River amongst a number of other boats. Approximately at 9:30 P.M. the tug Patience came along to take the Rockport and other boats to place them in a tow. In maneuvering to take the boats out of position, the Patience contacted and pushed upon the boats without releasing the lines, breaking the Rockport's bow line and cleat and doing considerable damage to the Rockport." (Italics supplied.)

 Since the Rockport's bow line was never on the starboard stern cleat, and no damage was shown to the bow cleat, it will be seen that the libelant's cause as alleged suffered from congenital confusion from which it never recovered, and from which the testimony of her witnesses afforded no relief.

 There is no dispute that the Rockport was the center of three light coal barges lying abreast at the rack and headed up-stream.

 The Manila (83.2' X 28.5' X 12.2') was moored to the rack by her own lines; next outboard was the Rockport (100' X 24.6' X 12') held to the Manila by two lines leading from the Rockport. Her bargee, Silverose, apparently a West Indian negro, was difficult to understand, because he spoke with a pronounced accent; and more than difficult to follow as a witness, since his version of what happened was incredible in part, and self-contradictory as to one matter at least.

 Alongside the Rockport to starboard was the Tracy No. 12 (112.9' X 30' X 14') made fast to the Rockport by two lines leading from the No. 12; her bargee, Collan, seemed to be a well-intentioned person whose memory was not clear on important points.

 The time and physical conditions are undisputed, namely:

 The maneuvering took place at around 9:00 to 9:30 P.M., and no one mentioned moonlight to dispel the customary darkness of night. A light ebb tide and a moderate offshore wind respectively controlled the tailing of the targes, and affected the conduct of the necessary maneuvers.

 The libelant undertook to demonstrate that the Patience came in contact with and pushed upon the three vessels above referred to, breaking the Rockport's bow line and cleat, etc.

 There is no testimony of damage to a clear at the bow of the Rockport.

 Silverose, after describing the position of the vessels as above stated, said on direct that there were two or three boats astern of the said tier, while further along (in explaining the handling of the bow line that he had to the Manila and the first maneuver that he attributed to the Patience) he said: "After he takes this boat away, then I put my towing line -- there is no boat astern -- I don't need a dock line." (Italics supplied.) That observation effectually cancels the first on this subject, and is important in connection with the general handling of these vessels by the Patience.

 Collan also said that there were three or four boats astern of his tier.

 Eye-witnesses for the claimant, namely, the captain of the Patience and the two deckhands, testified that there were no vessels astern of the Rockport tier, and as Collan's testimony with respect to the first movement by the Patience, namely, that it was down-river and that the Tracy No. 12 was on the tug's starboard side, is inconsistent with the presence of any barges or similar craft astern of the Rockport tier, it is found that in fact there were no vessels in a position which could be described as astern of the tier in question.

 All witnesses agree that there was a tier of three of four boats lying ahead, and two of the claimant's witnesses and Collan fix the distance at about twenty feet, and that statement is accepted.

 Silverose said that the first thing that the Patience did was to take a boat lying ahead of the Rockport out. There could be no possible reason for such a happening; nor does the libelant's brief so argue.

 Then he testified to having made a change in his lines after the Patience is said to have taken that boat out, thus:

 "Q. What did you do? A. I put my lines on somebody's boat ahead of me -- it ...

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