Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
On December 13, 1944, New York Trap Rock Corporation chartered the scow "Greystone" to Christie Scow Corporation for an indefinite time in accordance with the terms of a written charter which provided in part that "charterer shall at all times while the scows are under charter hereunder take good care of the vessels and shall redeliver them and each of them in the same good condition as when received, reasonable wear and tear excepted."
At the beginning of the charter period, the scow "Greystone" was in good condition, having been overhauled and repaired in September 1944.
At some time prior to January 17, 1945, Christie Scow Corporation delivered the scow "Greystone" to Moran Towing Corporation to be used in the transportation of ballast. Under this arrangement, Moran Towing Corporation gave all orders for the towing, loading and discharging of the scow. It was agreed that Moran Towing Corporation was not to be considered a charterer of scows furnished pursuant to this arrangement, but that it should be liable for its negligence.
Moran Towing & Transportation Company, Inc., is a corporation organized under the laws of the State of New York, and on January 21, 1945, operated and controlled the tug "Allentown."
On January 17, 1945, the scow "Greystone" loaded with a cargo of ballast was towed to Archer Daniels Pier 2, Edgewater, New Jersey, where the cargo was consigned. Unloading of the ballast commenced and on January 20, 1945, two-thirds of the ballast had been unloaded and placed in a steamer. The bargee of the scow "Greystone" was then informed that no further unloading would take place until another ship arrived. The weather report on the latter date stated as of 7:30 P.M.: "Large fields of floating ice observed all day in Upper Bay, Hudson and East Rivers."
On Sunday, January 21, 1945, the tug "Allentown" - on the order of the Moran Towing Corporation - shifted the "Greystone" and another scow from the south side of the Archer Daniels Pier 2 to the neighboring dock of the Valvoline Oil Company. As moored, the scow "Greystone" lay bow upstream parallel to the thread of the Hudson River with part of her bow and her entire starboard side extending beyond the end of Pier 4 and presenting an obstruction to ice floes that might be dragged along her starboard side by the tide. At the time the scow "Greystone" was shifted to the Valvoline dock, the weather was clear and cold, the tide was running ebb and there was a great deal of ice in the river. The United States Coast Guard reported ice conditions on Saturday, January 20, and Monday, January 22, as set forth in the margin:*fn1
Inasmuch as it was Sunday morning and no work was expected on that day, the bargee of the "Greystone" after inspecting the scow and pumping the water out left the boat at about eleven o'clock and went ashore. At about 3:30 that afternoon the "Greystone" overturned and sank as the result of having her starboard side gouged out by ice for a distance of approximately 18 feet thereby letting in a large quantity of water.
The libellant brought this suit in admiralty against Christie Scow Corporation for injury to the scow. Christie impleaded Moran Towing & Transportation Company, Inc., and the tug "Allentown." The court decreed the "Allentown" and the Moran Towing & Transportation Company, Inc., primarily liable, and Moran Towing Corporation and Christie secondarily liable.
It is argued on behalf of the "Allentown" that there was no warrant for a finding by the trial court that the damage to th scow was due to the impact of floating to the scow was due to the impact of floating scow was left, but we feel no doubt that the showing of large quantities of ice floating in the Hudson River and the testimony of the surveyors of the damaged vessel that the cuts in the sides of the scow looked as though made by ice warranted the inference reached that she was left in an unsafe berth and that ice caused the damage. Certainly it cannot be said that the findings of the judge were clearly erroneous. The contention that there was no place in the neighborhood of the Valvoline dock where it would have been safer to leave the scow lacks support. The judge found:
"16. There were other places reasonably near which would have been safe for the mooring of the 'Greystone.'"
John Kerwin, called as a witness for the libellant, testified that the Valvoline Pier was "no place" to leave the scow and added that there were "protected" slips other than the Archer Daniels piers near to the Valvoline dock. He said the Edgewater Coal Dock, which was about a mile below Archer Daniels, was such a protected place.He also mentioned the Warner Sugar Refining Company Dock about a half mile above Valvoline, and also Ford's and Spencer Kellogg's docks. In view of this testimony we cannot say that Finding 16, which we have quoted, was clearly erroneous. In other words, it was apparently reasonable and practical to have tied up the "Greystone" at some of these docks at which risk from injury by ice would have been avoided.
There was nothing to account for the sinking of the "Greystone" except the ice, and the surveyor who represented the interests of the "Allentown" was not called as a witness to contradict the surveyors who had attributed the loss and damage to gouging by ice floes. In the circumstances we regard the finding of the trial court that the tug left ...