The opinion of the court was delivered by: BYERS
The deckscow Louis W. Doyle, being moored to the bulkhead on the Manhattan side of the East River at 74th Street, at the ash chute operated by the City of New York, came adrift in the ebb tide when half-loaded with cinders, and was swept down the river; she struck and damaged the O'Boyle barge Marion E. Bulley lying two berths below; then she turned athwart the stream and out into the path of a descending tow of the tug Patience, and collided with and damaged its starboard hawser barge, Delaware.
Thereafter her immediate career was pacific, involving only her progress down stream to about 40th Street, whence she was towed to the 34th Street Pier where she was tied up.
These incidents occurred on May 15, 1946, and led to the numerous litigations indicated in the titles to the five causes above listed, which were tried together by consent, but require separate decrees.
The three final figures of the numbers of the respective causes will be used:
This is a libel by the Shamrock Towing Company, Inc., as owner of the Doyle, against Tully & DiNapoli, Inc., based upon the oral harbor charter of the scow on March 21, 1946, and her use and possession by the charterer until her return on May 20th in damaged condition not due to ordinary wear and tear.
At the trial the City of New York was impleaded on consent. No new issues were thereby imported, and the facts involved will appear below.
The answer seemingly denies agreement to return the scow in the same condition as when received, ordinary wear and tear excepted, which is thought to mean the assertion that no such obligation arose on the part of the charterer as an incident of the ordinary oral harbor charter.
Since the scowman was supplied by the libellant, this answer alleges, by way of defense, that the scow was towed by the libellant's tug from Flushing to East 74th Street, Manhattan, where she was tied up by her captain or by the crew of the tug; that she broke adrift from her mooring as outlined above, because of the carelessness, inattention and incompetence of the scowman, who was absent at the time that she broke adrift, and that the master and crew of the tug which did the towing were negligent in failing to see that the scow was properly and sufficiently made fast. No evidence was adduced by this respondent in behalf of the latter allegation.
Sinram Brothers, Inc., as chartered owner in possession of the barge Delaware, seeks recovery from the tug Patience and the scow Louis W. Doyle, by reason of the damage to the Delaware above recited. Fault is attributed to the tug for incompetence, inattention and failure to keep a lookout, and failure to keep the two clear of the Doyle; as to the latter, that she was not showing her light, and that those in charge failed to take precautions to avoid collision.
The tug was claimed by her owner, the Reading Company, and the answer to the libel alleges proper navigation on the part of the tug to avoid a collision, and that the latter was caused entirely by the scow Doyle, and resulted from the fact that she was incompetently moored, that her lines were unsafe, and that those in charge of her permitted her to go adrift and so remain; and that she was not properly manned.
The answer of the Shamrock Towing Company, which claimed the scow Doyle, denied the allegations of the libel with respect to the make-up of the tow and the said collision as alleged.
The Shamrock Towing Company filed an impleading petition against Tully & DiNapoli, Inc., as charterer of the Doyle, and the City of New York, on the theory that the Doyle was accepted by the latter when delivery was accomplished of the scow at the 74th Street bulkhead as stated above. It is alleged that the City moved the scow from the original place of mooring to the loading chute, and partially loaded her with ashes and cinders, and failed to make the scow fast and secure during the loading operation, and permitted her to go adrift.
As to the charterer, Tully & DiNapoli, Inc., the allegations are that it failed to maintain the scow in a safe and proper berth, permitted it to go adrift and to collide with the Delaware, and also to collide with another scow which was moored (this means the scow Bulley referred to in a later cause).
The answer of the City to the libel admits that the collision between the Delware and the Doyle was due to faults on the part of the tug Patience and the Doyle; otherwise only denials are pleaded.
By way of answer to the impleading petition of the Shamrock Towing Company, the City denies everything except the filing of the libel by the owner of the Delaware against the Patience and the Doyle, and that the damage to the Delaware was caused by the said collision, and admits that the Doyle was at the said dock of the City on the day in question.
The answers to the libel and to the impleading petition filed by Tully & DiNapoli, Inc., introduce no issues not heretofore described.
Anthony O'Boyle, Inc. as owner of the Barge Marion E. Bulley, filed a libel against the Doyle and her owner to recover damages for the striking by the latter which has been stated. The charges of fault are conventional on the part of the scow, which was properly moored and at rest at the time of the striking; she lay with her starboard side to the bulkhead, which means that her stern was up-river.
The answer denies that the Bulley was tight, staunch and seaworthy, but no testimony on that behalf was offered. No important issues are raised by this answer.
A petition to implead Tully & DiNapoli, Inc., charterer of the Doyle, the City of New York, and the tug Patience, was filed, containing allegations not requiring further recital here.
The specifications of fault in the libel are:
As to the Patience, the usual ones.
As to the City, that it failed to properly moor the scow in a safe berth, and to secure it there, and that it loaded the scow improperly, causing it to list, and placing a dangerous strain on the lines, and permitting the scow to project into the stream; and that it permitted the scow to go adrift.
As to the charterer, that it failed to maintain the scow in a safe berth, and permitted it to go adrift while in its custody and control, and that it permitted it to collide with a tug and tow while in its sole custody and control, and permitted it to collide with a moored vessel, while said scow was in its sole custody and control.
The charterer filed answer to the libel and to the impleading petition.
As to the first, no important issues are raised; the answer to the petition admits the allegations of the latter as to the status of the City as owner and operator of the bulkhead, and as to the acceptance of delivery of scows. No new issues are raised in this pleading; it being alleged that the damages complained of in the libel were the fault of those referred to in the answer to the libel.
The answer of the Reading Company, claimant of the tug Patience, consists in denials; the answer to the impleading petition admits the City's ownership of the bulkhead to which reference has been made, but denies the Fourth paragraph concerning the acceptance of delivery of scows, etc., and admits the cause of the damage between the Bulley and the Doyle; and by way of stating its own defense, asserts that the collision between the Delaware and the Doyle was not responsible 'for the subsequent collision between that drifting scow and the barge Marion E. Bulley'. (In this connection, the evidence seems to point ...