The opinion of the court was delivered by: BYERS
The libellant's barge William J. Ryan, being in good and seaworthy condition, was under the usual harbor charter to Christie on December 21, 1945, and was returned three days later in damaged condition not due to ordinary wear, etc., and the libellant's ensuing prima facie cause is not disputed.
It sufficiently appears that on the 22nd Christie engaged the impleaded respondent, Dauntless Towing Line, Inc., to tow this and another scow (Doris) from Pier 5, East River, Manhattan, both light, up the North River bound for the S.S. Franka, then at anchor in the river about 1 1/2 miles north of the George Washington Bridge. The voyage was begun at about 1:00 A.M. of the 23rd (a Sunday), both barges being alongside the tug Dauntless, the Ryan to port and the Doris to starboard. They are of about the same dimensions, which need not be stated. The make-up of the two is not criticized nor are the lines, nor the 380 h.p. of the tug.
It is not disputed that after rounding the Battery the tow proceeded on her way up the river and soon encountered an ebb the river and soon encountered an ebb tide, the strength of which was not shown but which was probably 1 to 1 1/2 knots, which was stipulated to be the strength of a flood tide, at the stage of the proof when that was thought to be tidal movement.
The night was clear, with wind out of the northwest of a force of 33 miles per hour; the moon was showing. A mid-river course was followed and there was some floating ice near the Manhattan shore.
The tug's deckhand, Johansen, was acting as lookout on the Ryan at her bow, and all required lights on the tug and barges were showing.
When about off 35th Street, the tug's captain, Pederson, who was steering, felt a shock and knew that the tow had hit something although he did not then see the object itself. The striking was at once reported by the lookout who said that the Ryan had apparently struck what looked like a floating fender such as would be used in connection with the docking of a ship, which when seen later in the tug's searchlight proved to be barely awash.
The tug at once reversed her engines, and soon backed the tow away, and then the fender or float was clearly observed, and its estimated dimensions were about 30 feet by 6 feet; it was unpainted, carried no light, and seemed to be oil soaked.
Having backed clear, the tug then proceeded up river to about the George Washington Bridge, and by then the ice was bearing down in the ebb tide so that the tug's captain deemed it necessary to turn his tow around, and bring it down river without reaching the ship, and for no reason stated in his testimony to account for its selection, he tied both barges up at the end of the Archer Daniel's Pier, Edgewater, N.J., the Ryan next to the pier and the Doris outboard. He then returned to 35th Street, Brooklyn,where the tug was tied up, and reported to his office, but did not then mention the said striking. He did report that later after hearing that the Ryan had sunk at the Edgewater pier. He made no inspection of the Ryan before leaving her, but summoned the bargee of the Doris who did go aboard the Ryan, and helped to tie up both craft as stated.
Johansen testified that as soon as the striking took place he knocked on the door of the Ryan's cabin and called the bargee to come out and 'take the boat' but the latter made no response, nor did he subsequently appear, which explains why Pederson called upon the bargee of the Doris to go aboard the Ryan and help in the tie-up operations.
There is no testimony to account for the aloofness of the Ryan's bargee, who has since died. No one is forbidden to realize that this incident occurred in the early hours of a Sunday morning.
It is conceded for the respondent-impleaded that the Ryan sank at the place where she had been moored, on the morning of December 23, 1945. A survey held five days later revealed breaks in the first and second end planks above the bottom, such as could be expected if a light barge were to strike a floating object while under way.
In spite of the failure of the tug's captain or lookout to inspect the hull of the barge when she was tied up, the inference is plain that the damage was occasioned by the incident recited, and it is so found.
The questions argued are whether the towing operation was conducted negligently so as to impose a liability upon the tug to respond for the primary liability resting upon Christie, the charterer. Before that is reached, however, there is a question of laches as asserted against the impleading petition, which requires statement:
The libel was filed after the lapse of nearly a year, on December 6, 1946, and the answer of Christie on February 18, 1947; therein it is alleged that the damage to the Ryan 'was caused solely through the fault, neglect and want of care on the part of the Dauntless Towing Line', the barge being at the time under the direction and control of the tug Dauntless. Three years, four months and thirteen days later, or on June 30, 1950, an impleading Petition under ...