The opinion of the court was delivered by: CLANCY
Pier 18 of the Central Railroad of New Jersey is on the New Jersey shore below the Battery. Berwind-White Coal Mining Company knew it was a busy pier day and night, loading about five hundred boats monthly and frequently twenty-five or more in a single day. Upon it is a mechanical dumper used to load barges with coal brought onto the pier in railroad cars. The barges are brought light to the shore or westerly end of the pier by tugs and, when the loading crew is ready for the loading operation, are towed easterly along the face of the pier by a cable operated by a winch. After loading, the barges are again towed by another winch -- the horsepower of either winch does not appear -- easterly about 250 feet to make room for the next barge to be loaded.
At five o'clock in the afternoon of the 15th of November, 1944, the barge Eureka No. 110, which had lain at the north side of pier 18 since the afternoon of the previous day, was brought by a tug to the south side of the pier. It had come from the powerhouse in the East River to which apparently was delivered its last load taken aboard November 8th. It was light, having only twenty-five tons of coal aboard and was tied bow in on the south side of the pier so the barge's starboard side was along the pier. At 7 o'clock the barge was towed by the towing cable to a position under the dumper. The bargee had then made no inspection or examination of the barge. The loading operation required one hour and fifteen minutes and almost fourteen hundred tons, approximately her full capacity, were put aboard. After loading was completed at about 8:15 she was again brought seaward by the winch and the cable then tied to her starboard stern quarter cleat, along the face of the pier to the outshore position which loaded barges occupied. This motion when imparted to the towing cable would take the Eureka No. 110's bow off the pier. When loaded the barge had a free board of two feet. Some time after the barge was moored at this position at the bay end of the pier her captain sounded and found 11 inches of water after which he started the pump on the barge. Some time thereafter he sounded again and discovered 18 inches of water. Thereupon he went ashore to ask the help of the dock foreman in procuring the assistance of a tug.
In response to his request the shifting tug Walter Tracy appeared on the scene about 9 P.M. and attempted to move the barge from her berth but was unsuccessful; two lines which the Walter Tracy put on the barge parted. At this time the Central Railroad of New Jersey tug Allentown was at the end of pier 5 awaiting orders. She received orders to proceed to pier 18 to give further assistance to the Eureka No. 110 and arrived alongside the Eureka No. 110 some ten or fifteen minutes later. She spent ten minutes attempting to syphon the barge but this proved fruitless. She then put a bow line on the barge and backed away from pier 18 in the direction of mud flats which were located south and southeast of the pier. The Allentown succeeded in getting the stern of the barge on the flats but the bottom's grasp was insufficient to hold. The tug then pushed the bow around so that the stern was facing the channel with the bow down river at which point the barge sank, sliding back into the deep water in the channel. The sinking occurred at 10 P.M. The captain of the Allentown hung a lantern on a pole which stood above the water and started for the pier. But the pole was fixed to the false roof of the Eureka No. 110's cabin which floated free immediately after the lantern was placed. It was towed to pier 18 by the Allentown at about ten twenty. All of the Allentown's service to the barge was rendered at the bargee's request and, though probably the towing was at the tug's discretion which the bargee had invited, it was for the barge's benefit. The Allentown then proceeded to pier 5, arriving at 10:45 P.M. when her captain informed the railroad tug dispatcher that the barge had sunk and was lying 300 feet south of pier 18. This information was relayed by the tug dispatcher to the Coast Guard at 10:55 P.M. No attempt to mark the sunken barge was thereafter made either by her owner or by the railroad.
After leaving the leaking Eureka No. 110 at the dock's side her bargee telephoned the duty man of Berwind-White Coal Mining Company who was stationed at pier 8 Jersey City, requesting that he notify Mr. Nelson, the night superintendent of Berwind-White Coal Mining Company, of the events and have men and a pump sent to pier 18. He was on the pier at 10:20 when the Allentown returned with the false roof. He knew then his barge had sunk but he did nothing but stand on the pier. He did not communicate the news of the sinking to his superiors then or ever. Two employees of Berwind-White Coal Mining Company arrived on the pier with a pump at about 10:30 P.M. There they were informed that the barge had sunk and that the sinking would be reported to the Coast Guard and they left the pier at 10:45 after telling this to Mr. Nelson. More than an hour after it was given the news, the Coast Guard at the Battery dispatched a patrol boat to the scene of the sinking where it arrived at 12:35 A.M. The location of the wreck given the Coast Guard by the railroad was wrong. The wreck was buoyed by the Coast Guard at ten o'clock on the morning of November 16.
At approximately 12:35 in the morning of November 15th the tug Ann Marie Tracy ran upon the unmarked sunken wreck striking it at a position that was estimated as about 150 feet off the end of pier 18 and was damaged thereby. The Coast Guard was just then arriving and had not undertaken patrol.
At approximately 5:10 A.M. on November 16th the tug St. Charles, with three light barges in tow struck the sunken wreck, causing damage to tug and a barge. The tug was notified by the Coast Guard that a sunken wreck was at a place estimated by the tug captain to be 150 feet off the end of pier 18. This information was incorrect and when he attempted a port maneuver to avoid the spot fixed by the Coast Guard the tug brought up on the wreck and, the barges propelled by the tide and their momentum, struck the tug whereby one of the barges, The Cleary No. 72, was damaged and the tug further damaged.
At approximately 8:30 A.M. the tug Osprey ran upon the wreck at a place estimated as 200 feet off and abreast pier 18 and was thereby damaged. No Coast Guard vessel was then present at the scene.
High water on the 15th of November was at 8:58 P.M. and low water was at 3:15 on that afternoon. At 8:15 P.M. in the evening of the 15th the height of the tide above mean low water was 4.8 feet.
The barge Eureka No. 110 was 140 feet long and 32 feet wide and 15.8 feet from her deck to her bottom. She had four side strakes which extruded two inches from the side planks and were bevelled off near the ends. She had a raked bow. She drew 3 feet of water when she carried twenty-five tons. The bottom of the deck planking of the pier was said by petitioner's surveyor to be 10 or 10 1/2 feet from low water.
One of the Eureka No. 110's bow planks about nine feet below her deck was sprung two inches from its joint before the loading operation began and as the loading progressed to completion admitted the water that sank her. How or when this plank was sprung was not proved. Her bargee was negligent in failing to inspect before loading.
When the Coast Guard is notified of a sinking, its practice is to obtain a general location of the hulk. It never engages to act at or within a given time or to assume performance of anyone's duty to mark or guard a wreck until it is actually on the scene nor does it make any representations whatever upon which the informant may rely. It performs its statutory duty with a promptness reasonable to it and without consideration of the duties or necessities of civil parties.
The Berwind-White Coal Mining Company, owner of the Eureka No. 110, was negligent after the sinking in its failure to take any measures to avert collision with it, and in failing to buoy the wreck and in the failure of its bargee to notify his superior at 10:20 of the Eureka No. 110's sinking. Its employees, Jones and Noll, were not negligent in failing to notify the Coast Guard because they were entitled to rely on their expectation that their superior, Nelson, would act on the news of the sinking which they conveyed to him with reasonable promptness.
When the Eureka No. 110 was apposed to the dumper at pier 18 she was not seaworthy in that the 9th plank of the bow rake was sprung from the starboard side of the barge to the extent of two inches. The Court is unable to make any finding as to just when this plank had been sprung. The Eureka No. 110's bargee was negligent in failing to make any inspection of his barge which would readily have discovered this defect in her hull. We have found as a fact the existence of the sprung condition of the bow plank of the Eureka No. 110 from the testimony of Linquist. He said and the survey did too that it was the only defect in an otherwise good hull after the barge had been raised. We understand all the parties to agree that this defect was the necessary condition of the barge's sinking and to dispute only when and in what circumstances the injury was sustained.
If the supposition of petitioner's surveyor as to the cause of the barge's injury had any factual basis, it was susceptible to a demonstration of almost mathematical exactness. If the measurements and the estimates given by him were assumed with the tide heights and movements which are exact, the collision suggested as an explanation of the barge's condition could not possibly have happened. In this calculation we have allowed a two foot freeboard to the barge, loaded. If the deck were even with the pier, as the bargee once said it was, the possibility of the collision would still be doubtful and that condition which is contrary to common sense was immediately contradicted by the bargee who gave the height of his freeboard as two feet. And this calculation does not take into account the barge's rake which would be effective as its motion created an angle to the pier or the dock's sheathing which would probably have affected the position of the bow when it reached the vicinity of the alleged out of position plank. It is certain that the condition of the barge's bow could not have been seen by ...