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Petition of Tracy

UNITED STATES COURT OF APPEALS SECOND CIRCUIT.


decided.: February 27, 1952.

PETITION OF TRACY ET AL. THE MARY T. TRACY.

Author: Swan

Before SWAN, Chief Judge, and CHASE and FRANK, Circuit Judges.

SWAN, Chief Judge.

About 10 P.M. on January 22, 1946 the tug Mary T. Tracy, operated by Tracy Towing Line, Inc., as bareboat charterer, moored the loaded coal boat she had in tow to a flotilla of six loaded barges docked at the 34th Street bulkhead in the East River, thereby overstraining the fastenings of the innermost barge, which alone had lines to the bulkhead, and causing all seven boats to go adrift. The present litigation resulted.The district court exonerated the owners of the tug, held the tug and its charterer liable for damages to the boats which went adrift, and granted limitation of liability. The damage-claimants attack the decree in so far as it granted limitation of liability to Tracy Towing Line, Inc. The latter has filed cross-assignments of error to protect its rights on the merits.*fn1

In a carefully considered opinion reported in 92 F.Supp. 706, the district court discussed the evidence in detail, and, concurrently with the opinion, filed findings of fact and conclusions of law. They need not be here repeated but some of them will be referred to in the ensuing discussion.

There was no error in denying the appellee exoneration from liability. Its contention that the mooring lines of the flotilla were cut, finds no support in the record. That it was negligent for the tug's master, Captain Davis, to hang his loaded coal barge onto the existing flotilla without himself making or causing the deckhand to make any adequate inspection of the lines of the only boat moored to the bulkhead is firmly established by the authorities cited in the district court's opinion. Liability of the tug and of her charterer for resulting damages is clear.

The damage-claimant appellants contend here, as they did at the trial, that the record shows (1) a general practice of negligence on the part of Captain Davis when landing a barge outside of others at a bulkhead, and (2) that Collins, the charterer's dispatcher, was aware of such practice and considered it proper; consequently they urge that limitation of liability should have been denied. For point (1) they rely on finding 28; as to point (2) they say that finding 31, which is adverse, is erroneous.*fn2

The fact that Captain Davis was guilty of negligence in the instant case, does not prove that he was an incompetent master - much less that he was habitually negligent.*fn3 Neither in its findings nor in its opinion did the district court determine that the general practice of Captain Davis, when mooring a barge to others already tied up at a bulkhead, was negligent. The description of his general practice is more complete in the opinion than in finding 28, and the opinion makes plain that the judge did not consider it negligent. 92 F.Supp. at pages 710-711. We agree. We are not persuaded from reading the record that what Captain Davis said he usually did constitutes proof of repeated acts of negligence amounting to a general practice. This is enough to dispose of the appeal but we may add also that the record does not convince us that finding 31 is clearly erroneous.

Decree affirmed.


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