The opinion of the court was delivered by: MCLEAN
This is a suit in admiralty which arises out of a collision between a scow and a barge in the Harlem River on January 22, 1962. The barge was being pushed by two tugs, the Chippewa II and the Valmorac. Libellant, owner of the scow, sues the two tugs and their respective owners and also sues Arrow Builders Supply Corporation ("Arrow") at whose dock the scow was moored prior to the collision. Arrow has cross claimed against the tugs and their owners. The tug Valmorac and its owner has cross claimed against the Chippewa II and its owners.
The libel contains a wholly unrelated second count setting forth a claim by libellant against Arrow for the price of bricks sold and delivered by libellant to Arrow.
I find the facts to be as follows.
At the scene of the accident, the Harlem River runs approximately north and south. It is crossed by the 207th Street Bridge, which rests upon a long abutment that runs lengthwise in the center of the river and projects beyond the bridge, thereby dividing the river into two "draws" or channels. The distance from the southerly tip of the abutment to the east bank of the river is approximately 150 feet. Arrow's dock is on the east bank of the river at this point, south of the bridge. The dock lies opposite the center abutment.
On January 22, 1962, two scows were moored to Arrow's dock, parallel with it, with their starboard sides against the dock. The William Hutton was to the north, nearest the bridge. Immediately south of her lay the R. Engelbrecht, the scow involved in this collision. She was a "dumb scow," i.e., she had no motive power of her own.
The Engelbrecht had arrived at the dock from Kingston, New York, on December 8, 1961, laden with a cargo of brick consigned by libellant to Arrow. Between December 11, 1961 and January 19, 1962, part of her cargo was discharged to the dock, and delivered to Arrow. The balance of her cargo was still on board.
On January 22, at approximately 10:15 A.M., the lines which held the bow of the Engelbrecht to the dock were cast off, and her midship line as well. This left her tied to the dock only by two stern lines. The bow of the Engelbrecht swung out into the river, partially blocking the channel between the east bank and the bridge abutment in the center of the river.
At just about this moment, a flotilla consisting of the laden oil barge Dana Bray and the Chippewa II and the Valmorac came along, going north. The two tugs were pushing the Dana Bray. The Chippewa II was tied to the starboard side of the barge, approximately 150 feet back or south from the barge's bow. The Valmorac was dead astern of the barge.
The starboard edge of the bow of the Dana Bray struck the port side of the Engelbrecht at a point at least 15 feet aft of her bow, and stove a hole in her. The Engelbrecht sank. After she settled to the bottom, a good part of her superstructure and part of her cargo of brick still protruded above the water.
As between libellant and Arrow, the question is whether it was Arrow that placed the scow in this position of danger, and if so, whether Arrow acted negligently in so doing. As between libellant and the tugs, the question is whether the tugs were at fault in failing to avoid the collision.
In my opinion, libellant has the better of the controversy with Arrow. The Engelbrecht was moved by Arrow's employees upon the instructions of Arrow's yard superintendent. The lines were cast off by Arrow employees. The scow was pushed out into the river by a shove from a "clam bucket," a type of crane operated by Arrow employees. The scow was under Arrow's control throughout this movement.
The purpose of the movement was to serve the convenience of Arrow in the discharge of the scow's cargo, a work which was performed by Arrow's employees. The plan was to place the Engelbrecht alongside of and outside of the scow William Hutton, so that the portion of the Engelbrecht's cargo not already discharged would be more accessible to the clam bucket which Arrow used to hoist the bricks from the scow to the dock. Arrow's superintendent believed that the current in the river was running to the north at the time. He believed that when the bow of the Engelbrecht was pushed out, the current would carry the scow northward parallel to the William Hutton, to which it could then be made fast.
The plan went awry because the superintendent was mistaken as to the direction of the current. In fact, it was flowing to the south. The evidence conclusively establishes this fact. Consequently, when the bow of the Engelbrecht ...