UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF NEW YORK
June 11, 1945
THE DON. THE ASHBOURNE
The opinion of the court was delivered by: KENNEDY
This action having come on for trial in its regular order on the pleadings and proofs of the respective parties, and due deliberation having been had thereon, the Court makes the following:
Findings of Fact
1. The Don is 104 feet long. Her beam is 30 feet 6 inches. Amidships her depth is 15 feet 6 inches and at the ends 17 feet.
2. The Ashbourne is 88.2 feet long. Her beam is 19 feet and her depth 10.2 feet. Her gross tonnage is 115 and her net tonnage 78 and she develops 325 horsepower.
3. On December 2, 1943 at eight o'clock in the morning, the Ashbourne prepared to shift the Don from the Creosote Pier to the dumper dock.
4. The dumper dock extends easterly into Arthur Kill. The Creosote Pier is a short distance to the north and east of the dumper dock, and extends into the Kill in a southerly direction.
5. The Don was moored starboard side to the Creosote Pier with its bow toward the bulkhead. The Ashbourne put out a headline from her own bow to the stern starboard cleat of the Don and then proceeded to back out into the stream.
6. When the Don was clear of the dock the Ashbourne stopped her engines. The momentum of the Don, even though she was light at the time, then caused the Ashbourne to swing around on her headline so that her starboard side gradually approached the starboard side of the Don.
7. At some point during this operation the Ashbourne put out a strap from its towing bitt through a hawse pipe which was made fast to a cleat on the starboard quarter of the Don. The Ashbourne then went ahead and landed the Don alongside the dumper dock port side to.
8. Before the Don was secured to the dumper dock her bargee, Steen, complained to Kelly, the tug captain, that the Ashbourne had been in violent collision with the Don.
9. The Don was immediately inspected. She had not been damaged, but there was a black smudge on her starboard side well above the water line, and about 20 feet from the stern.
10. Thereafter, and between December 2, 1943 and January 18, 1944, the Don carried six cargoes of coal from Port Reading to New York.
11. On January 18, 1944 the Don was surveyed. Her bottom planks and four of her seams had been started, the seams being both on the starboard and the port sides.
12. This damage was not caused by collision between the Don and the Ashbourne on December 2, 1943.
Conclusions of Law.
1. The damage to the Don disclosed by the survey of January 18, 1944 was not due to any fault on the part of the Ashbourne.
2. Claimant is entitled to a decree dismissing the libel with costs.
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