Before CHASE, CLARK and FRANK, Circuit Judges.
On November 15, 1944, at about half past nine in the evening, the loaded coal barge Eureka No. 110, owned by the appellant Berwind-White Coal Mining Company, was at Pier 18, Communipaw, New Jersey and was leaking so badly that she was in danger of sinking. The pier was owned by the Trustees of The Central Railroad Company of New Jersey, herein called the railroad, and a tug of the railroad then tried to beach her on some nearby mud flats but failed, and the barge became a wreck at about 10:00 P.M. in the navigable channel leading to, and past, the pier. While there, and before she was marked, the following vessels struck her and were damaged: At 12:35 A.M. on November 16, 1944, the tug Ann Marie Tracy, which was owned by Tracy Towing Line, Inc.; at 5:15 A.M. on the same day, the tug St. Charles, owned by Amboy Towboats, Inc., and her tow, the scow Cleary No. 72, owned by Cleary Brothers and under charter to the United States, rode up to hit the St. Charles and was damaged; at 8:30 A.M. on the same day, the tug Osprey, owned by Allen N. Spooner & Son, Inc.
As a result of these mishaps the following actions were brought in the Southern District of New York: The appellant filed a petition for exoneration from liability and, in the alternative, for limitation, and also sued the railroad for the damage to its barge.The railroad, the United States, Cleary Brothers, Tracy Towing Line, Inc., Amboy Towboats, Inc., and Allen N. Spooner & Son, Inc., all filed claims in the limitation proceedings, and the latter two each filed libels against the railroad to recover the damages sustained by their respective tugs. Cleary Brothers sued the United States as the charterer of its scow and the United States impleaded Amboy Towboats, Inc., in that action. The latter then impleaded the railroad. All of these actions were consolidated for trial which ended in the entry of an interlocutory decree dismissing on the merits both the petition of the Berwind-White Coal Mining Company for limitation and its libel against the railroad. The claims of Amboy Towboats, Inc., Allen N. Spooner & Son, Inc., Tracy Towing Line, Inc., and Cleary Brothers were allowed against the petitioner in the limitation proceedings for the damages sustained by their respective vessels. The libels of Amboy Towboats, Inc., and of Allen N. Spooner & Son, Inc., against the railroad were dismissed, and so was that of Cleary Brothers against the United States, together with the impleading petitions of the United States and of Amboy Towboats, Inc. The Berwind-White Coal Mining Company appealed, and Cleary Brothers, Amboy Towboats, Inc., and Allen N. Spooner & Son, Inc. filed assignments of error.
When the Eureka No. 110 was raised after the sinking it was found that the ninth bow plank down from her deck had been sprung near its end on the starboard side. The opening so made in that vicinity was adequate to account for taking the water which brought on her sinking and was the only reason discovered to account for it.
The appellant's position briefly is that the railroad is liable for the damage to its barge as its sinking condition was due to the fault of the railroad in bringing the side of it up against a protruding wearing piece on the pier while the barge was being moved along the pier after loading, and further that it may limit any liability of its own for damage caused by the wreck. That of the claimants in the limitation proceedings as regards the appellant is that it failed to mark the wreck as required by Sec. 409 of Title 33 U.S.C.A.*fn1 and was personally negligent in that failure. That of the others need not be stated more explicitly for reasons which will appear.
It was proved and found substantially as follows:
Pier 18 is a very busy one, with two coal dumpers which often load twenty-five or more barges a day. These barges are brought in to the inshore end of the pier light and after one is moved under one of the dumpers and loaded with coal it is hauled along the pier toward the offshore end to be picked up and towed away. This hauling is done by cable from winches on the pier, the cable being fastened to a cleat on the pier side of the barge. This movement of the barge has a tendency to keep it close to, or rubbing on, the side of the pier.
There was a wearing piece which stuck out from the side of the pier in such a way that it might have caused the dislocation of the ninth plank on the barge provided the barge hit it there with sufficient force. And there was some evidence to the effect that after the barge was loaded she drew so much water that at certain stages of the tide the protruding wearing piece might have been about at the height of the damaged part of the barge. To find such a situation, however, certain inferences would have to be drawn from rather inconclusive calculations and the trial judge did not draw them and was unable to find that the damage to the barge was caused by its hitting the pier. Clearly this was only a failure to find a disputed fact on evidence not conclusive and so is not error. It is probable that the barge was already damaged in the respect described, when she was brought under the dumper for loading. But, if so, there was insufficient evidence to show that the railroad knew, or should have known, that. The barge had been lying at the pier for a day or two empty but for some twenty-five tons of coal along her starboard side which caused her to list a little toward the pier. The trial judge justifiably found that a person on the pier could not see the place where the damage was found unless he leaned over the pier to look for it.
Before the loading was completed the bargee had sounded his barge and found but 2 1/2 inches of water. After the barge was loaded, however, the bargee sounded again about 8:30 P.M. and found 18 inches. The barge was then listing four of five inches to starboard and the bargee went ashore for help. One tug tried unsuccessfully to give assistance and then the railroad's tug Allentown came and attempted to siphon the barge. This proved impossible, so the Allentown pulled her away at about half past nine to beach her as above stated.
The barge had a wooden, false roof to protect the roof of her cabin from falling coal, and after she sank a flag pole on the false roof remained above water. The captain of the Allentown had a lantern made fast to that to mark the wreck, but the false roof floated free, and the tug towed it back to the pier and removed the lantern. Meanwhile the bargee had been on shore and had telephoned information as to the plight of the barge at the pier which was transmitted to Mr. Nelson, the general foreman of the appellant. He sent two employees with a pump to the pier, but they did not get there until after the Allentown had towed the barge away.
The Allentown returned to the pier at about 10:20 and reported the sinking of the barge to the representatives of the railroad. The bargee and the two pump men sent by Nelson then learned of the sinking and were told by some unidentified person on the Allentown that the sinking had been reported to the railroad which would report it to the Coast Guard. One of the pump men then telephoned the appellant's general foreman Nelson of the sinking and told him that the railroad would report it to the Coast Guard. With that the appellant's men at the pier went home and thereafter nothing was done by the appellant about the wreck before the accidents happended as above noted.
The captain of the Allentown knew just where the wreck was, but whoever on the Allentown reported the location to the railroad mistakenly placed it 300 feet south of the pier. The Coast Guard was so informed at 10:55 P.M. and at 11:45 P.M. sent a patrol boat to the location given. There is a conflict in the evidence as to when the patrol boat arrived in that vicinity and, though its log gives it as 12.05 A.M. on November 16th, the judge found on apparently credible evidence, that it was 12:35 A.M. and we accept that finding. At about the same time, and while the patrol boat was searching for the wreck, the tug Ann Marie Tracy, bound for Pier 18 on business, struck it and was damaged. But even then the patrol boat did not learn where the wreck lay. She did not find it before the tug St. Charles hit it at 5:15 A.M., nor unitl she struck it herself at 5:45 A.M. Even then she didn't mark the wreck and after she had left the vicinity because of some engine trouble the tug Osprey struck the wreck at 8:30 A.M. The Coast Guard did mark the wreck eventually but not until about ten o'clock that morning.
Under these circumstances, it is apparent that the appellant has not shown that the railroad was negligent in loading the barge without first inspecting it with the requisite care to determine whether the plank was sprung before loading. Nor has it shown that the plank was sprung while the barge was at the pier during loading or ...