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July 2, 1957

Josephine RICE, as Executrix of the Estate of Philip Rice, Libelant,

The opinion of the court was delivered by: BYERS

The libelant's cause is for substantial damage to the scow Elizabeth R sustained on November 25, 1950, in Haverstraw Bay, in that part called the Basin, where the New York Trap Rock's Long Cove Quarry was operated.

The precise claim against respondent, as pleaded, is that the latter was negligent in its duty as tower in failing to place the Elizabeth R in a safe berth on the night of November 24th, with the result that on the following day, under great stress of weather, the scow was wrested from her mooring and caused to be washed ashore, whereby the damage was occasioned.

 The libel was filed June 26, 1952 and the case came to trial nearly seven years later than the happening, namely, on April 25, 1957. The briefs and all papers were received by me on June 21, 1957.

 The intensity of the storm in the waters to New York Harbor and vicinity has been recognized in the following cases: Petition of Bronx Towing Line, Inc., 1956 A.M.C. 166; Petition of Reading Co., D.C., 121 F.Supp. 808; Petition of Banks, D.C., 133 F.Supp. 276.

 It is undisputed here that the storm was of at least equal severity in the vicinity of Haverstraw, on land and in the Hudson River; thus it seems unnecessary to repeat in detail the data with reference to the strength and force of the winds and the heavy fall of rain which prevailed almost throughout the entire day of the 25th. Moreover, the tide rose in these waters not less than six feet above normal high water.

 Reports of the Weather Bureau and attendant observations and comments are in evidence, and thus can be consulted in an examination of this record by a reviewing court.

 The libelant does not argue that the said conditions were other than as above summarized; her case is that when the scow was moored on the night of the 24th at about 11:00 o'clock, the tug Terry, which conducted the operation, was at fault in handling the maneuver. So much is clear.

 The respects in which the tug is said to have failed are vague in presentation at best, but are urged to be sufficient to call upon her owner, the respondent, to go forward with proof that the requirements of good seamanship were conformed to.

 The task of the court is to examine the evidence to ascertain what it discloses, and if enough of substance has been shown to sustain a decision.

 It must be said at once that neither party to the controversy has made a conspicuous effort to illuminate the entire situation. For instance:

 There has been no adequate showing of the physical conditions existing in the so-called Basin on November 24th, namely, the dimensions and number of the structures there maintained; their configuration and structural characteristics, nor their courses. Their functions have not been clearly shown.

 The foregoing have not been the subject of testimony by any informed person such as the operating head of this branch of the New York Trap Rock Corporation; such a person would seem to have been available as a witness at the trial, or by deposition.

 Perhaps the fact that the libelant's scow was under charter to that corporation, which was responsible for such docking facilities as were operated at this plant, may not be entirely unrelated to the failure stated.

 No drawing, even a rough one, purporting to portray the said structures was offered for the guidance of the court to indicate whether the Elizabeth R was indeed in an exposed position to the wind conditions shown to prevail at the time when the mooring was effected.

 Despite the lapse of time between the filing of the libel and the trial, no effort seems to have been made by either side to seek discovery in the nature of a deposition, of the captain of the tug Terry, nor seemingly were interrogatories propounded which could have been answered only by him.

 The mere fact that neither the captain of the tug Terry nor of the tug Cornell, later to be referred to, was in the employ of the respondent at the time of the trial, does not take the place of efforts by either side to subpoena those persons. The court would have appreciated an opportunity to listen to the version of the Terry's captain concerning a protest said to have been made by Swan, the scowmaster of the Elizabeth R, concerning the position in which the scow was placed, and the alleged undertaking by the tug captain to return within an hour; that testimony is the principal basis of the libelant's case, and its importance therefore must have been apparent to the respondent ever since Swan's deposition was taken on July 11, 1956.

 The respective witnesses who testified were:

 Harry Schmidt, who has been connected with the libelant's enterprise since 1935. He described what he observed on arrival at Haverstraw on November 26, 1950, after the storm had subsided.

 George Swan, who was the scowmaster on the Elizabeth R, whose deposition was ...

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