The opinion of the court was delivered by: GALSTON
These two actions were consolidated for the purposes of the trial. The libels arose out of the damage sustained by the scow Margaret and her cargo of fruit on or about December 2, 1946.
The Margaret was under oral harbor charter to the Pennsylvania Railroad Company for the period from August 29, 1946, to December 4, 1946. On December 4, 1946 the Pennsylvania Railroad Company returned the scow in a damaged condition.
On November 28, 1946 there were loaded on board the Margaret, at Pier K, Jersey City, 3,448 boxes of fresh fruit. On the morning of November 29, the barge was towed from Jersey City to the south side of Pier 6, Bush Docks, Brooklyn, where the fruit was to be loaded on the Waterman Steamship Company's vessel Madaket. The barge Margaret was left by Pennsylvania at the bulkhead at Pier 6. On November 30th, under orders of the Ryan Stevedoring Company, who were the pier operators, the scow was shifted from that pier to make way for an incoming vessel. The Rowan Card, a tug of the Ryan Stevedoring Company, shifted the Margaret to the end of Pier 3, and there moored her outside of a New York Central barge.
The Bush Docks point northwest, and have little or no protection from the northwest winds coming across the upper bay. At the time of the shift, on November 30th, the weather was mild and cloudy, with a slight easterly wind. However, on December 1st, at about 4:37 A.M., the local weather station received a warning of increasing southwest winds, becoming twenty to thirty miles per hour in the morning, and shifting to northwest about noon-time. At about 6:00 A.M. small craft warnings were displayed from Eastport to Block Island, and were maintained throughout December 1st and December 2nd. At 1:15 P.M. on December 1st, a cold wave bulletin was received and distributed to the press and radio, which read in part: 'The temperature will fall far below freezing in all sections and will be accompanied by fresh to strong northwest wind.'
Ryan made no attempt to move the Margaret on December 1st, despite the change in wind conditions. Though at 5:00 P.M. that day the wind had somewhat abated, from 10:00 P.M. until 8:00 A.M., December 2nd, it steadily increased. At 3:00 P.M. it remained over 45 miles per hour, with big gusts of over 55 miles per hour.
Ryan endeavored to get a tug at 7:30 A.M. on December 2nd to move the Margaret and the scow Delta because of their exposed position. It is significant that the tug Rowan Card arrived, but her captain refused to work because of the weather. Calls to other tugs were unsuccessful, with the result that the Margaret and the Delta remained exposed. At about 7:30 A.M. on December 2nd the house of the Margaret collapsed, crushing some of the boxes, spilling others overboard and exposing most of the rest to freezing weather. The banging of the Margaret against the Delta brought about damage to the hull of the Margaret as well as to the cargo.
It becomes important to ascertain whose negligence brought about the damages complained of. It seems reasonably clear that there was no active negligence of the Pennsylvania Railroad Company. However, the burden is upon the Pennsylvania Railroad Company as charterer to explain the damage. See The Moran No. 10, D.C., 41 F.2d 255; Tomkins Cove Stone Co. v. Bleakley Transportation Co., 3 Cir., 40 F.2d 249. Indeed the law is so well settled that these authorities need not be analyzed in this opinion. The Pennsylvania's explanation is that the Ryan Stevedoring Company was primarily responsible for bringing about the damages. The Margaret was in its possession and control, and Ryan exercised dominion by shifting her to an exposed position and in failing to remove her from the unsafe position at the end of Pier 3. Ryan thereby contracted liability. See Palmer v. Agwilines, 2 Cir., 135 F.2d 689; C. F. Harms Co. v. Erie Railroad Co., 2 Cir., 167 F.2d 562, and Roah Hook Brick Co. v. Erie Railroad Co., 2 Cir., 179 F.2d 601. The evidence establishes convincingly that the end of Pier 3 was an exposed location, and was a dangerous place for a barge to be moored in a northwest storm. The weather reports issued early on December 1st, and again later in the day, should sufficiently have apprised Ryan of the necessity of exercising every effort to move the vessel. See Golden Rule, 1925 A.M.C. 297, in which it was said:
'It seems to me that after so many years of experience with the usefullness of weather bureau warnings, all persons engaged even in harbor operations should be bound to pay attention to them, and failure to do so is evidence of negligence.'
The evidence establishes the fact that it would have been feasible for Ryan to have removed the Margaret from the end of Pier 3 some time shortly after getting the early weather report.
What was said in The Hercules, D.C., 261 F. 529, 533, affirmed 2 Cir., 269 F. 959, is especially pertinent:
'To moor a boat in an exposed position, where she is liable to be subjected to damage from violent storm, and then to allow the storm to come on, in the face of indications both by storm warnings and by observable changes in the weather, and to do nothing to remove the boat from its dangerous situation, places upon the person responsible for the boat liability for damage, which cannot be excused by showing that the storm was a little more severe than that which could be ridden out safely by the boat in this position.'
I conclude that the Pennsylvania's explanation is adequate and therefore hold Ryan primarily liable, and Pennsylvania only secondarily liable in respect to the asserted damages.
There is a contention made that Kelly was at fault also in that his barge was unseaworthy, and that his bargee was absent.
It was established at the trial that prior to the chartering of the Margaret, two inspectors of the Pennsylvania Railroad had examined the Margaret for the purpose of determining whether she was seaworthy for the charter. They found damage in the hull, and they classified the ship as fair and recommended the barge for charter, despite the fact that they had not inspected the sills, the reason apparently being because the sills were partly covered up at the time of the inspection. Huish, one of the inspectors, ...