Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
These appeals from interlocutory decrees following decisions of Judge Lawrence E. Walsh and Judge Thomas F. Murphy, after separate trials in the District Court for the Southern District of New York, are virtually cross-appeals and they arise out of the capsizing of the scows South and Triboro No. 22 in the early morning of May 30, 1955, and the consequent damage to those scows and the scow Paul J., all three being tied up alongside each other in the first tier of scows at the Whitestone Stakeboat, an old tug anchored in the East River off Silver Beach and Throggs Neck in the Bronx.
The first trial before Judge Walsh in June 1957 involved two separate libels, one filed by the Triboro Scow Corporation, owner of Triboro No. 22 against the respondents Charlotte F. Jacobus and F. Jacobus Transportation Co., Inc., the owner and agent respectively for the South, and the other filed by the Port Jefferson Corporation, owner of the Paul J. against the same respondents, both claiming damages caused by the South when she sank and overturned.
On Friday evening, May 27, 1955, some twenty or more scows, heavily laden with sand and gravel so that they had only two feet or less of freeboard, lay tied to the Whitestone Stakeboat, which was operated by the charterer of the scows, Gallagher Brothers Sand & Gravel Corporation. There were several tiers of scows, each tier containing five or six scows, all about 128 feet by 33 feet and 9 feet deep, the dimensions of the South. In the first tier, from left to right in back of the Stakeboat, were the Paul J., the South, and the Triboro No. 22. The Paul J. was second from the left end, the South was tied to the starboard side of the Paul J., and the Triboro No. 22 was tied to the starboard side of the South. There were two more scows to the starboard of Triboro No. 22. The scows were joined to the Stakeboat by cables 30 or 40 feet long, one of which ran to the South, and the scows were held close to each other by lines running to the scows alongside and to their stern so that one could walk from one scow to the other.
On Saturday, May 28 at 9 a. m. the captain of the South left and did not return before the Monday morning accident. Shortly after 5 a. m. on Monday morning, the captain of the Stakeboat observed the South to be in sinking condition. No one was aboard her. The Stakeboat captain summoned help from other scow captains and put a portable pump on the South and the South's lines were let go in the hope that she might drift away. The list continued, however, until the pump could no longer be worked, and shortly thereafter, at about 6 a. m., the South, which had not drifted away, overturned and came to rest upsidedown on the deck of the Triboro No. 22. The damage to Triboro No. 22 and the weight of the South resting on her, caused Triboro No. 22 to fill with water and at about 8 a. m. Triboro No. 22 capsized to her left so that she rested upsidedown on top of the upsidedown South.The side rail of the South was pushed under the bottom of the scow Paul J., causing damage to the Paul J.
Judge Walsh found South's owner and agent negligent because they should have known that she was in poor condition and they should not have left her unattended over a three day holiday weekend. He found the South was thirty years old and had been maintained poorly and in a niggardly fashion, that she had been subjected to a twist and had been repaired in a makeshift manner by means of wedges, that she had not been caulked for two years and had been used on a hard run. Under these circumstances the district judge concluded that it was negligent to leave her unattended over a three day holiday weekend while berthed in an open mooring and fully loaded.
Judge Walsh said that he did not know and could not say what caused the South to sink and capsize, but he did find that, regardless of the cause, it could have been discovered and the accident could have been prevented if someone had been aboard. These findings are not clearly erroneous; on the contrary they are amply supported by the evidence. Judge Walsh made no findings with respect to the condition of the Triboro No. 22 and we must take it that she was in good condition.
Judge Walsh awarded full recovery to the Paul J.'s owners against the owner and agent of the South. We affirm this award which is amply supported by the record and requires no further discussion.
Judge Walsh also awarded to Triboro No. 22's owner half of its damages against the South's owner and agent, on the ground that No. 22's owner was also at fault in leaving No. 22 unattended.
In December 1957 Charlotte F. Jacobus, the owner of South, filed a libel against the Triboro No. 22 and its owner for one-half the damages sustained by South when the Triboro No. 22 capsized and landed upsidedown on top of South. After overruling exceptions Judge Murphy tried the libel by taking under consideration the testimony and exhibits offered on the previous trial before Judge Walsh.
Judge Murphy, feeling that he was obliged to follow Judge Walsh's conclusion as to the joint negligence of Triboro No. 22, held Triboro No. 22 liable for one-half of the damages to South and denied limitation of liability to No. 22's owner.
From the interlocutory decrees entered on the opinions of Judges Walsh and Murphy, the owners of the South and the Triboro No. 22 both appeal and cross-appeal. The only content party is Port Jefferson Corporation, owner of the Paul J. which was awarded damages against the South and its owner and agent without limitation of liability.
In our view it was clearly erroneous to hold that the owners of Triboro No. 22 were negligent. Apparently the sole basis for finding any fault with respect to Triboro ...