The opinion of the court was delivered by: BYERS
This limitation proceeding was initiated by the filing of a petition on May 31, 1951 by the owner of the yacht Jesting II, and recites that during part of November 1950 (actually it was November 12), the said yacht was moored at the dock of one Garrison on the northerly side of Sheepshead Bay (3000 Emmons Avenue), Brooklyn, Pursuant to a contract 'for storage of the Jesting II throughout the winter of 1950-1951.'
That on November 25, 1950 the yacht was subjected to winds of hurricane force and to the pounding of floating piles, dock structures and floats and other debris, whereby at about 7:30 a.m. on that day she was caused to break away from said mooring and be driven by the force of the winds in a westwardly direction along the shoreline fronting Emmons Avenue.
That the owner's employees at about 7:00 a.m. boarded the vessel and made every effort to attempt to save it but the storm caused her to be driven as stated, causing damage to the yacht and to certain shore structures and vessels, for which the petitioner was not at fault through negligence or otherwise.
That a libel was filed against the yacht by 2912 Emmons Avenue Corporation (for convenience to be called Peters), for damages to its property, and that other actions of a like nature are likely to be brought whereby the petitioner seeks the benefit of limitation of liability according to the applicable statutes; that questions of liability will be contested.
The cause came to trial on May 24, 1955 and the following claimants participated:
The said Emmons Corporation, to be called Peters;
Lloyd Garrison, the proprietor of the establishment at which the yacht was to be stored according to the said contract;
John Falcone, owner of the motorboat Marian F, said to have been damaged at the time or shortly after the Jesting II fetched up at a city bulkhead later to be described;
Thomas Cacace, owner of the motorboat Jolo said to have been struck by the Jesting II as she was drifting to that bulkhead.
All of the damage claimants offered testimony in support of their claims and seek to defeat limitation.
The Jesting had arrived at the Garrison property on November 12, 1950 and at that time she was temporarily moored off or adjacent to the floats which constitute part of the structures on the Garrison property. That mooring was under the direct supervision of the petitioner Banks, and it was understood to be only temporary.
On November 21 the petitioner sent four of his men down to the yacht to make her fast in a snug berth where she was to remain throughout the winter, and the manner in which that was accomplished is shown by petitioner's Exhibit 4, a sketch made by one of the men, which indicates what lines and anchors were put out.
The Jesting II is a yawl rigged yacht 67 feet in length with a beam of 18 feet and depth of 9 feet, 59 tons gross, 44 tons net, and is equipped with an auxiliary diesel engine which operates a screw propeller. The horsepower was not stated and is not important, for reasons which will appear.
The mooring which was accomplished on November 21, left the vessel alongside, bow to the East but breasted off a float. The petitioner's brief summarizes the testimony as to the details of the mooring, and since Garrison said that petitioner's Exhibit 4 is substantially correct, and there is no evidence to the contrary, the petitioner's statement in his brief on the subject is adopted, as follows:
'The port anchor chain was run out diagonally to a new piling or dolphin designated by Garrison. A 175 pound to 200 pound anchor was placed diagonally off the starboard bow of the Jesting at a distance of about 175 feet (Petitioner's Exhibit 4). This was a Navy type, or Danforth anchor, and a new 4 inch manila line was used. A 175 pound to 200 pound Danforth, or Navy type, anchor was let out diagonally from the starboard quarter. A 175 pound to 200 pound anchor was let out from the port quarter on a diagonal. A 4 inch new manila breast line was doubled up around a piling of the dock. A 4 inch manila stern breast line was around a piling, either at or in the vicinity of the Garrison dock. These lines are shown on petitioner's Exhibit 4 in evidence and are agreed to by all witnesses including Garrison although Garrison stated that, in addition to the lines shown on petitioner's Exhibit 4, there were also spring lines attached to the floats which, in turn, were attached to the dock and other lines were also out to two (mushroom) anchors amidship.'
Perhaps it is not without significance that the vessel was berthed for the winter season of 1949, at the same place in the Garrison Yard; no testimony has been offered to the effect that the mooring was rigged in any different way for that winter season.
The storm which broke in the early hours of November 25th was severe to the extent indicated in a special report issued by the Department of Commerce, Weather Bureau entitled 'Report on the Storm of November 25, 1950 Prepared under the direction of Ernest J. Christie, Meteorologist in Charge,' which is Petitioner's Exhibit 3, part of which follows:
'From early morning to late evening of November 25, 1950, the New York City metropolitan area was battered by a severe storm. Heavy rain fell, and sustained winds of gale force attained peak gust speeds in excess of 90 m.p.h. during the afternoon. While neither rainfall nor wind velocities set new local records, the storm was one of the greatest experienced in the New York area. The storm, moreover, was part of a vast atmospheric disturbance which, from November 24th to November 26th, brought strong winds, rain squalls, and high tides to the North Atlantic coastal region, * * *. Regarded from this larger point of view, the whole storm may be considered the worst ever experienced over the eastern part of the country, though in any given locality it may not have been the worst so far as loss of life, injuries, and property damage are concerned.
'In New York City, the violence of the storm caused it to be compared with the hurricanes of 1938 and 1944. The November 25th storm was not a hurricane. * * *.
'Although the 1938 and 1944 hurricanes caused greater wind velocities in New York City and vicinity, the duration of strong winds in the recent storm was longer. * * *.'
It is the same storm commented upon by Judge Goddard in his opinion of June 23, 1955 in the case of Petition of Bronx Towing Line, etc., No. A168-357 in the Southern District, wherein he says:
'This litigation arises out of an unusually violent storm on Saturday, November 25, 1950, when the petitioner's stakeboat, with 11 scows moored east of Clason Point, on the East River, dragged her anchor, parted her chain and caused substantial damage to docks, buildings on the shore, boats and other property.'
It is of importance to realize that the onset of this storm seems not to have been anticipated according to the ...