The opinion of the court was delivered by: BYERS
The libelant's wooden coal barge W. A. Kipp (116 feet by 31 feet by 16 feet inside depth) carrying 800 tons of coal, was the outside vessel to starboard in the third tier of a coal tow moored at the end of pier 7 (Manhattan) East River, tailing up river in the flood tide, on the morning of February 9, 1943.
At about 9:00 A.M. she struck pier 9 twice, sustaining damage for which this libel was filed in rem against the steamtug Overbrook, on October 21, 1943. The answer was filed on February 20, 1945.
The reason for this less than punctual course of pleading has not been disclosed, although the evidence contains a statement to her proctors, made by the Overbrook's captain on April 12, 1943, and the libelant first notified the claimant of its grievance on February 18, 1943.
The cause as pleaded is that the Overbrook had landed its tow in the vicinity of pier 6 and that it 'became necessary for the Overbrook to swing its tow out into the river * * * and in hauling the tow out the Overbrook caused an excessive strain to be placed on the port hawser of the W. A. Kipp with the result that the starboard stern end of the barge swung toward and collided heavily with the end of pier 9.'
The faults specified are: Failure to have a helper tug in maneuvering its tow away from the dock; in maneuvering its tow away from the dock so as to cause excessive strain on the barge's port hawser, breaking it; in so maneuvering with its tow away from the docks (sic) as to cause the Kipp to collide (twice) with the end of pier 9.
The answer denies that on the day in question the Kipp was towed, swung or otherwise moved by the Overbrook, and alleges that any damage sustained by the former was not caused or contributed to by any fault, etc., of the Overbrook.
The libelant has failed to prove its cause as pleaded, and while a different version of the Overbrook's conduct might have supported a recovery, it cannot be said that the evidence as adduced would be sufficient to sustain a decree, even after conforming the pleadings to the proof.
I am satisfied that the Kipp was in the position stated, the tow having been so placed in the early hours of that morning at pier 7, by Pennsylvania tug Baltimore (not the Overbrook). Also that the barge just ahead, the B.B. 146, was taken away at 8:40 A.M. by the Pennsylvania tug Jersey City, causing the bargee of the Kipp to put out a hawser from his port bow corner to the Eddy, the middle barge in the second tier; there were already in place a bow line and a stern line to the Cape Dewey, the barge alongside to port; that is, the middle boat in the third tier.
At about the time that Dehie, the Kipp's bargee, was putting out this hawser from his port bow corner to the Eddy, the Overbrook was removing two barges from the first tier (the middle one and the outside one to port) ahead to pier 6, where presumably she made them fast.
This left but one barge in the head tier, the Sterling, which was the starboard outside barge, the hawser barge, made fast to pier 7, and the rest of the tow was hanging on her; i.e., in Donnelly's phrase (he was the Overbrook's captain): 'Yes, the loaded tow was made fast to pier 7, East River.'
It must be obvious that the removal of the Sterling was a critical maneuver, since the remaining elements of the tow had to be secured in some manner, or allowed to go adrift, and yet there is not one word of testimony from anyone on the subject of how that movement was handled; it does appear that the Overbrook took the Sterling away, made fast alongside to starboard, and towed her to a Brooklyn pier.
Dehie's version, that the Overbrook took the entire tow out into the river and then back against so carelessly as to cause the damage stated in the libel, was unconvincing and cannot be relied upon for the following reasons, in addition to his failure to show that he really saw what he said took place:
1. Dehie said the tow was made fast to pier 6, not 7. This is not thought to be correct, since the log of the Pennsylvania tug Wicomico, submitted by consent, shows that at 4:40 A.M. on this day she took the barge Hanscome from directly astern of the Kipp in this tow, from pier 7.
The log of the Pennsylvania tug Jersey City shows that at 8:40 A.M. she took the barge B.B. 146 ahead ...