The opinion of the court was delivered by: GODDARD
These two suits have been consolidated for the purpose of trial. The suit by the Metropolitan Sand & Gravel Corporation (hereinafter referred to as Metropolitan) against the barge Dwyer No. 25 and the tug Russell No. 1 is to recover damages to its dock at 31st Avenue and 120th Street, College Point, New York, on the night of August 30-31, 1951.
The suit by the Dwyer Lighterage, Inc., the owner of the barge Dwyer No. 25 against the tug Russell No. 1 and the New York Trap Rock Corporation, the charterer, is to recover damages sustained by the Dwyer No. 25 while at Metropolitan's dock.
Metropolitan claims that its dock was damaged as a result of the Dwyer No. 25 being hung up at its dock with a line too short to allow for the falling tide.
The Dwyer Lighterage alleges two causes of action. One against the tug Russell No. 1 which allegedly had placed the barge in the position which caused the damage; the other against the Trap Rock Corporation, the charterer of the barge.
The pleadings admit that the Russell No. 1 shifted the barge, but deny it was done in a negligent manner or that the line, which it put out, was too short.
It was high tide on the night of August 30th at 11:19 D.S.T., and low tide on the morning of August 31st at 5:35 D.S.A., and there is a drop of little more than 7 feet in the tide.
At 10:45 D.S.T. on the night of August 30th, the Russell No. 1 arrived at the dock to pick up the Lehigh Valley barge No. 351 and tow it to 34th Street and the East River. A line was run from the Dwyer to the Lehigh Valley No. 351, which was moored between the Dwyer and the dock, and lines from the tug were run to the Lehigh Valley No. 351 and it was pulled out and the Dwyer pushed close to the dock; then the lines from the Lehigh Valley No. 351 to the Dwyer were released and lines put out from the Dwyer to the dock.
Although the Russell did not have consent to shift the Dwyer, the Russell was following a recognized custom of shifting another barge which blocked the entrance to the slip where it was reasonably necessary so that other vessels might pass in and out, but such removal must be exercised with care and caution. The Gildersleeve, No. 339, 2 Cir., 68 F.2d 845.
The mere shifting of the Dwyer did not cause the damage. The damage was due to the fact that the line from the bow of the Dwyer to the dock was so short that when the tide fell the bow was hung on the dock, and the question is -- who is responsible?
The bargee of the Dwyer testified that the barge arrived at the Metropolitan dock at 10:45 p.m. on August 28th and was moored alongside the Lehigh Valley No. 351, which was moored to the dock; that he had been aboard the Dwyer from 8 a.m. until 5 p.m. on August 30th, when he left for the day, so that the barge was unattended during the night; that the barge still had on board about 100 to 130 tons of fine stone to be unloaded; that when he returned the next morning at 7 o'clock, the how of the Dwyer was hung up on the dock; that the line leading from the bitt on the bow of the Dwyer was only about 7 feet long and was so taut that it had to be cut; that the bitt on the Dwyer and the cleat on the dock had been pulled out; that the stern line from the Dwyer to the dock was about 25 feet long and slack; that both the dock and the Dwyer were damaged; that the tide was 'pretty low'.
Stephen Erato testified that he had been employed by Metropolitan since 1947 as a dock laborer; that before he left at 4:30 p.m. on August 30th, the Dwyer was made fast to the Lehigh Valley No. 351 which was next to the dock; that when he returned the next morning, the Lehigh Valley No. 351 was gone and the Dwyer was next to the dock and its bow hung up on the dock; that the cleat on the dock and the bitt on the Dwyer had been pulled out; that the bow line from the Dwyer to the dock was 7 or 8 feet long.
The captain of the Russell No. 1 testified that after the Lehigh Valley No. 351 had been pulled away, he ordered the deck hand on the Russell No. 1 to go aboard the Dwyer and put out lines from the Dwyer to the dock; that he did not see what lines were put out.
The deck hand testified that he went aboard the Dwyer and put out a stern line of about 25 feet to the dock and a bow line of 6 to 8 feet long, (later he testified it was 8 to 10 feet long) which was made fast to the bitt on the ...