The opinion of the court was delivered by: INCH
Libellant is the owner of the barge Grace Flannery. On Sunday afternoon, April 8, 1945, while she was in tow of the tug Bern, libellant claims that the starboard side of the Flannery was carelessly brought into collision with a scow moored in the vicinity of 30th Street, East River, causing damage. Accordingly, libellant has sued the tug Bern, The Reading Company, claimant.
Counsel for claimant in his brief makes the following statement as to certain material facts being uncontradicted and I think it is substantially correct:
'The barge 'Grace Flannery' was the starboard hawser boat in a tow of five barges which the tug 'Bern' towed from the stakeboat to 29th Street, East River. The towing was performed on April 8, 1945. Three boats were in the head tier and two boats were in the second tier. Six side planks and three king posts located forward of amidships were broken on the starboard side of the 'Grace Flannery'. The damage, as of the date of the survey, (Lib. Ex. 2) was of recent origin. (p. 38). The side of the barge was set inboard (p. 39).
'It was quite a damage. (p. 40). It required a very heavy force to cause such damage'. (p. 40).
If the above included a collision caused by the tug Bern, the issue presented to the court would be simple. However, when the testimony of the various witnesses is considered, the decision must rest upon their veracity and the reasonable inferences from facts.
Witnesses for libellant testified under oath, as eye witnesses, to when, where and how the Flannery received her damage. Witnesses for the tug testified that there was no such collision; that the damage found must have been sustained elsewhere. Counsel for claimant asserts that perjury must have been committed by these witnesses for libellant in order to protect themselves, or particularly the master of the Flannery, from carelessness on his part in some, so far, undiscovered manner.
Furthermore counsel for claimant asserts that in view of the construction of the Flannery it makes the collision, in the manner testified to by libellant's witnesses, incredible. That the 'physical factors' in this case indicate that it would be impossible for the Flannery to have received such extensive damage from a collision between the starboard side of the Flannery and the scow, due to the rake of the Flannery. That there was nothing for the Flannery to strike except a space of 28 inches where the rake of the Flannery commenced.
There was also some controversy as to the make up of the tow of the Bern, but as to this I believe the witnesses for libellant and this being so, according to even the testimony of the captain of the tug, it made the tow a little more difficult to handle than otherwise.
The determinative issue therefore is this question of veracity. Eye witnesses for libellant positively state the fact of the collision, one of them, in a sense, being disinterested. Witnesses for the tug as positively testified that there was no collision. In support of their testimony, counsel for claimant asserts that for the collision to have taken place as testified to by libellant's witnesses would be incredible and contrary to the physical factors.
The Flannery was the starboard hawser boat of the tow. She was loaded with about 500 tons of coal. The scow, Cape South, was the port hawser boat, and the Lake Oneida was the middle boat in the front tier. Both the Cape South and the Lake Oneida were larger boats than the Flannery. The Cape South had about 1,400 tons of coal on board, while the Lake Oneida, which was next to the Flannery, was loaded with about 1,500 tons of coal. These two boats, the Cape South and the Lake Oneida so loaded were in the front tier of the tug and alongside the Flannery. It would seem reasonable that if a thrust was directed by them through the smaller and lighter boat Flannery on the starboard side in a case of a contact by this side with some obstruction, such as this moored unnamed scow, loaded with scrap iron, a considerable blow could arise which otherwise might not have existed.
The remainder of the tow was the barge Butts astern of the Cape South, the port hawser boat, and the Captain Bishop astern of the Flannery, the starboard hawser boat. There was no boat in between. The tug, with hawsers to the head tier of about 100 feet, had proceeded up the East River in a flood tide. It expected to land the Flannery at 30th Street. When it had reached a certain position in the river, the tug rounded to and as this maneuver was being completed, according to the witnesses for libellant, the side of the starboard hawser boat, Flannery, collided with the corner of a deck scow, loaded with scrap iron, lying off a scow or scows, at the wall of that place.
The first and most important fact that must be found is, was there any contact by the Flannery with the moored scow? Libellant placed on the stand two witnesses who swore that there was a hard collision between the two boats.
Van Schaik, master of the Flannery, has had twenty-five years experience, seven of which were on the Flannery. He testified: 'It was broad daylight, about four o'clock in the afternoon. The tug rounded to 'kind of swift and my boat hit against the deck scow'. The scow was tied up to 30th Street outside of other boats, quite a bit out in ...