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March 29, 1949


The opinion of the court was delivered by: RAYFIEL

The libelant herein seeks recovery from the respondent for damages sustained by its barge, the Charles H. Baxter, by reason of respondent's negligence.

Some time prior to May 2, 1946, the libelant's barge arrived at the dock at the City Power House at 74th Street, East River, New York, carrying about 300 tons of coal consigned to the City of New York.

 On May 2, 1946, the Charles H. Baxter was tied up outside of the barge Fisher Island, owned by M. & J. Tracy, which had been tied up to the dock by dock men employed by the City of New York, the respondent herein.

 The Fisher Island was tied to the dock by four lines, two being 7-inch breast lines and the remaining two being 4-inch spring lines, one running from each end of the barge. The Charles H. Baxter had no lines running to the dock and was tied to the Fisher Island by two 5-inch lines, one running to the bow and the other to the stern.

 At about 9:00 P.M. on May 2, 1946, the dock men, employees of the respondent, sought to shift the said barges, by hand, upstream along the dock so that they would come under the unloading digger. This shifting operation was performed with the flood tide by paying out breast lines. (see paragraph 'seventh' of answer).

 The answer states that the breast line from the Charles H. Baxter to the dock snapped, causing undue strain on the other lines, which also broke, but the respondent offered no evidence to support that allegation. The libelant's witnesses testified- and they were not controverted- that there were no lines running from the Charles H. Baxter. Hence, if the lines broke, as stated in the answer, they must have been tied to the dock by the respondent's employees.

 When the lines snapped both barges drifted upstream under the Triboro Bridge on the Long Island side, where they struck against the bottom. They came off the bottom with the tide, and kept drifting up river until they reached a point near the Astoria gas works where a police boat and a fire boat picked them up and put them alongside the Astoria Gas Works dock.

 The libelant states that the respondent was negligent in attempting to shift the barges upstream by hand at that point on the river at flood tide, and at a time when the current was flowing at the rate of 4.6 knots per hour, as indicated by the record herein. In support of its contention it offered the testimony of Robert Wilson, who had performed shifting operations in the vicinity of the City Power House dock, and who stated that it would be unsafe to shift two barges by hand in a flood current of approximately four knots an hour.

 The respondent adduced no testimony in its defense, resting on the libelant's case, and moved to dismiss the libel on the ground that the libelant failed to make out a prima facie case. The respondent contends that it was not negligent, and that the barges were cast adrift because the lines holding libelant's barge to the dock, and which were furnished by the libelant, were defective.

 I am satisfied that there were no lines tying the Charles H. Baxter to the dock and that the lines tying the latter to the Fisher Island were not defective. As a matter of fact they were still tied to the Fisher Island while the barges were drifting upstream.

 I am satisfied further that the shifting operation was conducted by the respondent's employees, who had sole control and supervision thereof, under unsafe conditions of tide and current, and that the lines holding the Fisher Island to the dock broke or parted due to the negligence of the respondent's dockmen.

 Counsel for the respondent, in his opening statement, admitted that the shifting operation was performed by the respondent's employees, (S.M. p. 3) and further conceded that there was some damage (S.M. p. 9). As hereinbefore mentioned, paragraph 'seventh' of the answer, states, that the said operation was conducted by respondent's employees at flood tide and by hand. It was not necessary, therefore, to prove those facts. See Fyfe et al. v. Pan-Atlantic Steamship Corp., 2 Cir., 114 F.2d 72; Christopher Oscanyan v. Winchester Repeating Arms Company, 103 U.S. 261, 26 L. Ed. 539, cited in Cutcliffe v. Commissioner of Internal Revenue, 5 Cir., 163 F.2d 891.

 There was no proof that the lines leading from the Fisher Island to the dock were defective. If, however, they were, it was the duty of the dockmen to inspect them before undertaking the shifting operation. If they were not defective then it is apparent that the shifting was done under tide and current conditions which imposed too great a strain on them.

 As consignee and wharfinger the respondent was under an obligation to exercise due and reasonable care in discharging the cargo of coal. In my opinion it failed to do so. I do not think there was any fault on the part of the libellant. I think the sole cause of the ...

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