The opinion of the court was delivered by: BRUCHHAUSEN
The libelant, owner of the barge Erie, claims damages against the respondent, the tug Edward Card, for negligence.
The Edward Card was engaged to and did tow the barge Erie from Gulfport, Staten Island, to Devon, Connecticut. The voyage was down the Kills, across New York Harbor, through the East River and Hell Gate, down Long Island Sound, to Devon, Connecticut. Upon its arrival, a 'little crack' was discovered in the steel plating on the starboard side of the barge, near tank number 4. The claim is for this damage.
The substance of the testimony of Captain Backman, in charge of the libelant's barge, is that it was built in 1935 (although respondent's counsel claimed it was built in 1924); that on the trip through the harbor swells from passing tugboats and ferries caused the tug, Edward Card, to roll; that in the Sound there was very little rolling; that nothing was put in the log book about swells; that there was an entry made in these words 'I don't know when this happen, only way it could happen when tug staying alongside and rolling'. The testimony of John Fenstrom, the mate, was limited to what he observed after the barge reached its destination.
On the other hand, Captain Lochstoer, in command of the tug, testified that Captain Backman informed him that the damage was caused by a tug other than the tug Card; that the weather was beautiful; that there were only ordinary swells on the voyage; that at no time did the tug surge, pitch or roll; that no damage to the barge was caused by the tug; that the tug was equipped with rope fenders, spaced from four to six feet apart. Victor Larsen, the pilot of the tug, substantially confirmed the latter testimony, and the Court finds no reason for it to believe to the contrary.
The leading case of Stevens v. The White City, 285 U.S. 195, 52 S. Ct. 347, 76 L. Ed. 669, sets forth the principles pertaining to damage claims arising out of towing barges, viz.:
1. The action is for tort and not on contract.
2. The tug is not the bailee of the vessel in tow or the cargo.
3. The tug owner owes to the tow's owner the duty to use such reasonable care and maritime skill as prudent navigators employ for the performance of similar service.
4. The burden of proof is upon the claimant throughout the trial.
5. Evidence showing a tug's receipt of a tow in good order and its delivery in damaged condition raises no presumption of negligence.
It has also been held that under certain circumstances where an accident occurs in the course of towing, a presumption of negligence arises calling upon the tug owner for an explanation. It injects a doctrine in maritime cases in the nature of the rule of res ipsa loquitur. It has not been so termed in this Circuit, although so termed in The Anaconda, 4 Cir., 164 F.2d 224. That case is based upon Second Circuit cases which so hold. As was said in Waldie v. The Peter C. Gallagher, 2 Cir., 125 F.2d 568, 570, citing those Second Circuit cases cited in the case of The Anaconda, supra:
'The remaining claim is that there was negligence in the makeup of the tow. Appellant asserts that, upon proof of damage to a barge, the tug must bear the burden of explaining the accident and of showing that her conduct was proper, citing The Reichert Line, 2 Cir., 64 F.2d 13; The Stirling Tomkins, 2 Cir., 56 F.2d 740. We need not pass on whether such a broad construction of those cases is in conflict with Stevens v. The White City, 285 U.S. 195, 202, 52 S. Ct. 347, 76 L. Ed. 699; cf. Commercial Molasses Corp. v. New York Tank Barge Corp., November 17, 1941 (314 U.S. 104), 62 S. Ct. 156, 86 L. Ed. (89), since, whatever the presumption established by the cases cited by appellant, it is applicable only when the accident occurs 'under circumstances in which, if proper care is exercised in performing a similar service, such misfortune does not ordinarily occur.' The Clarence P. Howland, 2 Cir., 16 F.2d 25, 26.'
As was said in The Clarence P. Howland, 2 Cir., 16 F.2d 25, 26:
'Where a misfortune occurs without any fault on the part of the tow, under circumstances in which, if proper care is exercised in performing a similar service, such misfortune does not ordinarily occur there is a presumption of negligence. In other words, the situation calls for an explanation, and there ...