The opinion of the court was delivered by: INCH
This is a suit by libellant, McAllister Lighterage Line, Inc., which orally, on August 5, 1943, sub-chartered the barge Montezuma III to the Pennsylvania Railroad Company for an indefinite period at an agreed per diem rate.
At the time of the delivery of said barge to the Pennsylvania Railroad Company she was in good condition, in every respect seaworthy. Libellant's bargee went with the barge. On March 2, 1944, the barge was returned to libellant by the Pennsylvania Railroad Company in a damaged condition.
Libellant brought this suit against the Pennsylvania Railroad Company based on the above demise.
For convenience I shall hereafter refer to this barge, as the Montezuma, to the Pennsylvania Railroad Company, as the Pennsylvania, to the impleaded New York Central Railroad Company and its tug New York Central 30, as the Central, and the barge Lehigh 36, as the Lehigh.
The Lehigh and Central have been brought into the picture by the required explanation of the Pennsylvania which impleaded the New York Central Railroad Company.
Because of the adequate explanation the suit becomes one for alleged negligence, the burden of proving which, by a fair preponderance of evidence, rests upon libellant. Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734.
The Pennsylvania asserts that the New York Central Railroad Company, owner of the tug Central 30, and her crew caused the damage suffered by the Montezuma. The defense of the Central appears to be one of complete innocence on the theory that whatever happened to the Montezuma was caused by persons unknown, under circumstances which are quite mysterious.
A brief reference to the facts in this interesting controversy will now be made, but unfortunately they lack any mysterious quality.
There is a small slip between Piers 18 and 19, Brooklyn, according to the record 106 feet wide in 1922. There is no evidence that it has been widened. On March 1, 1944, about three o'clock in the afternoon, a McAllister tug brought the Montezuma into this slip and securely tied her up to the inside of Pier 18. The tug then departed. The barge was light. Burgquist, the bargee, then reported to the Pennsylvania dispatcher, in accordance with his duty, where he was and and that the boat was light.
Burquist says, and it is not disputed, that about five o'clock some longshoremen came and told him there was a ship coming in and that the barge would have to be shifted. That thereupon he and they pulled the Montezuma around the slip and hung her up alongside the starboard side of the barge Lehigh 36 which was on the opposite side of Pier 19. No lines were run out to the dock from the Montezuma, but two new lines were properly put out from the Montezuma to the Lehigh, bow and stern, and securely fastened.
Whether or not any ship was coming in requiring this shifting or whether Burgquist decided to quit work at the end of the day and wished to have the bargee of the Lehigh watch over his barge is immaterial for the reason that the motive for making this transfer becomes, in itself, unimportant. I believe the testimony of Burgquist, and Michelson, the bargee of the Lehigh, who apparently consented to this arrangement, that the Montezuma was tightly secured to the Lehigh by two new lines, bow and stern, the Montezuma being bow out towards the river and the Lehigh being bow in towards the bulkhead, which was about 100 feet away. The Montezuma was approximately 111 feet long and 32 feet wide. The Lehigh was 98 feet long and 30 feet wide.
Having thus tied up his barge to the Lehigh and about 7 p.m. Burgquist left his barge and went home. He came back the next morning about 6:45 and found that the Lehigh had gone away and that the Montezuma had drifted towards the shore and was lying between the two Piers 18 and 19 near the bulkhead hanging on one line, this was the stern line that Burgquist had put out. There was no bow line apparent anywhere, it had apparently disappeared. It may be mere speculation to guess where it had gone. There is, however, no evidence of any broken lines or indication of anything but that human hands that night had released the Montezuma from the Lehigh.
During the day of March 1, a northwest wind averaging 38 miles an hour had been blowing into this somewhat small slip. This wind decreased somewhat but, nevertheless, the record shows that during the early morning of March 2, it was blowing 22 miles an hour and it is a fair inference that it would kick up the water in the slip somewhat and have effect on a light boat such as the Montezuma unless she was securely tied.
The result of this standing of the Montezuma when examined later on the morning of March 2, showed a twist of four or five feet but no damage to her bottom. This twist was later reduced, ...