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BURNS BROS v. ERIE R. CO.

June 1, 1948

BURNS BROS
v.
ERIE R. CO. et al. Palmer et al. v. BURNS BROS. NO. 77 et al. THE TRANSFER NO. 7



The opinion of the court was delivered by: KENNEDY

The owners of the coal barge Burns Bros. No. 77 (which I will call No. 77) *fn1" have filed their libel against Erie Railroad Company (Erie), Long Island Railroad Company of New Jersey and its trustees (Central), and New York, New Haven and Hartford Railroad Company and its trustees (New Haven). The suit is strictly in personam.

New Haven has filed a libel in a cause of salvage in rem and in personam against the barge No. 77 and her owners. The two suits have been consolidated by order and were tried together.

 On Easter Sunday, April 1, 1945, at 3:00 o'clock in the afternoon, the bargee of No. 77 left her properly moored at the bulkhead at 36 Avenue, Long Island City. She had arrived at that point laden with 594 tons of coal, but all had been discharged except about 50 or 60 tons. The starboard side of No. 77 was toward the bulkhead; she had about 9 feet of free board.

 At 10:50 p.m. on the same day New Haven's tug Transfer No. 7, towing on her port side the covered barge New Haven No. 124, picked up the coal barge in a sinking condition in the East Channel of the East River, quite near the northerly limit of Rainey Park, and beached her bow first at a dock at the foot of Broadway.

 No. 77 had sustained considerable damage to her stern. Her lines had all been parted. Her starboard stern quarter cleat was up-ended, and there was a hole in her port bow. This physical damage to No. 77 could all be accounted for by a violent blow at the stern which would have the effect of canting her around and driving her port bow into the cribbing ahead of her and near the dock where she lay.

 Just prior to the 8:50 p.m. *fn2" on April 1, 1945, seven carfloats were moored to the No. 1 rack at Long Island City belonging to respondent Long Island. They were all moored along the north side of the rack with the bow or toggle end in toward the Long Island shore and the stern or bumper end out toward the river. Counting from the rack outward (northerly) in the tier, the carfloats appeared to have been moored in this way: Central Railroad No. 35, Central Railroad No. 42, Lehigh Valley 2003, Pennsylvania 566, Long Island No. 20, Erie 45, and Erie 41. Some at least of the floats had railroad cars on board

 Between 8:50 p.m. and 9:45 p.m., four 'drilling' operations were carried out. At 8:50 p.m. Lehigh Valley 2003 was taken out by the tug Slatington, Pennsylvania 566 was taken out by the tug Meitowax, and Erie 45 by the tug Scranton. At 9:45 p.m. Erie 41 was taken out by the tug Rochester. In each case the tug was in the same ownership as the float taken.

 The 'drilling' operation needs further description. Normally the tug comes up to the stern of the float to be taken, and the fasts are cast off usually by employees of Long Island, helped by the crew of the tug. The tug then hauls the float stern first out into the river, ultimately making up alongside it for towage from that point.

 It can be seen that this operation entails breaking the tier. To guard against what is called a 'holding-up' tug, in this case the Patchogue. As soon as a float had been drilled out of the tier, it was the duty of Patchogue to shove the outside floats back into contact with those still made fast to the rack, and moor the former to the latter.

 But in some instances, as happened here, the float to be taken may be the end (in this case the most northerly) float. This was the situation when at 9:45 p.m. on April 1, 1945, the tug Rochester arrived to take Erie No. 41. In that situation, probably with the object of saving time, the tug comes up along the off-shore side of the float to be removed, puts out head lines, stern line and strap, breaks the carfloat out of the tier, and then proceeds on her way. It can be seen that this operation, even though carefully conducted, puts a strain on all of the fasts, because the carfloat being taken out may be canted in one direction or another, and the movement may cause the whole tier to surge. The whole operation is very much like a game of musical chairs, but a good bit rougher.

 At about 10:00 p.m. those in charge of No. 1 rack became aware of the fact that the lines between Central No. 42 and the in-shore float (Central No. 45) had parted. Long Island No. 20 was, as the result of the shifting operations I have already described, then made fast to Central No. 42. The two carfloats then whirled up the East Channel under the impetus of the flood tide (1.5 knots) and a southwest wind of very nearly gale force (27 miles per hour).

 At the time the floats broke away, Patchogue, the 'holding-up' tug, was down at what is known as the Pine Dock removing Erie 37. The Pine Dock is somewhat to the southward of No. 1. rack. An alarm had been blown by Long Island's dispatcher. When the alarm was blown, the master of Patchogue had Erie No. 37 in tow and was being aided by the tug Long Island. The tug Meitowax was 'holding up' for Patchogue at the Pine Dock.

 Immediately upon hearing the alarm, Patchogue turned her tow over to the tug Long Island and set out in pursuit of the derelict carfloats, followed by Meitowax. As Patchogue passed a point which her master fixed as just off 40th Avenue, Long Island City, he saw one of the carfloats (unquestionably Central No. 42) strike a moored coal barge. This point of collision, according to Patchogue's master, was 1,500 feet to the southward of 36th Avenue, where No. 77 was moored. I mention this circumstance here because perhaps the principal question litigated at the trial was whether libelant had sufficiently established that its coal barge, and no other, was struck by the derelict carfloat. I will return to the point later.

 After the collision between the carfloats and the coal barge, the floats broke adrift from each other. Patchogue ultimately (10:45 p.m.) picked up the float Long Island No. 20. Meitowax managed to secure Central No. 42 off Jamaica Avenue, Astoria, at 10:55 p.m. By that time both floats had progressed to the northward of Nallet's Cove. Calculations by an expert on tidal data show that the points and times where the floats were secured are quite consistent, under the given conditions of wind and tide, with the hypothesis that they broke their moorings at 10:00 p.m. It was around the ...


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