Appeal from a judgment of the United States District Court, Southern District of New York, Hon. Robert L. Carter, Judge, which found the appellant solely responsible for damage to the property of the appellee. Judgment modified.
Kaufman, Chief Judge, Feinberg and Mulligan, Circuit Judges.
This is an appeal from a judgment of the United States District Court, Southern District of New York, entered on June 8, 1973, following an opinion of the Hon. Robert L. Carter, United States District Judge, dated May 30, 1973, which found the appellant Robert D. Timpany, as Trustee of the property of the Central Railroad Co. of New Jersey (Central) solely responsible for damage in the amount of $34,000 plus interest and costs, to a hoist owned by the appellee Erie Lackawanna Railway Co. (Erie).
The facts in this case are not in dispute. In July, 1968, Central owned and operated a drawbridge, located at the entrance to Newark Bay, between Elizabethport and Bayonne, New Jersey, running in a general east-west direction. The drawbridge is a lift bridge, the spans of which can be vertically raised and lowered by a bridge tender, who is employed by Central. The westerly passage for vessels has an opening of 216 feet, with a vertical clearance (between the bottom of the lift span and the water) of 35 feet at mean high water when the lift span is completely lowered and in a closed position. When fully opened, the vertical clearance in the western passage is 135 feet. Pursuant to Federal Regulation,*fn1 the western span is equipped with a red light in the middle of the span facing the direction of oncoming traffic, which remains lit until the span is completely raised, at which point it turns off and a green light shows.
Shortly after 3 a.m. on the morning of July 10, 1968, the tugboat NAZARETH, owned by plaintiff appellee Erie and piloted by Captain Joseph Stuchala, was proceeding from Hoboken, New Jersey to Newark Bay. The NAZARETH was towing a floating hoist secured to her port side and a barge and a scow secured to her starboard side. The towed vessels, the property of Erie, were all unmanned. The NAZARETH had a crew consisting of the Captain, a mate, two deckhands and an engineer. The hoist had a single boom which extended 80 feet in the air when in a raised position, with its base located about 75 feet from the bow of the floating hoist. The flotilla was 110 feet in length and 100 feet in width. The towed vessels were each lighted at their outside corners; the tug had a number of lights, including one on its mast, but there was no light at the end of the boom.
At about 3:25 a.m. the NAZARETH and her tow were rounding Bergen Point, proceeding toward the bridge. There was little wind, the water was calm and visibility was good. Captain Stuchala was alone at the wheel of his tug, navigating the flotilla, and the four other members of his crew were below in the galley. When he was about a half-mile away from the bridge, he gave the usual three-blast signal indicating that he wished the span over the western passage to be opened. The flotilla was proceeding at half speed to permit the Captain to line up his 100 foot wide flotilla to negotiate the 216 foot western passage. On hearing the tug signal, the bridge tender, who had been lowering the western span, stopped that operation and proceeded to raise it to a height of 75 feet. As the tug passed under the bridge, the top of the boom of the hoist hit the bridge, resulting in the $34,000 damages claimed by Erie.
On trial, Captain Stuchala testified that he had passed under the bridge between 200 and 400 times prior to the date in question, and on almost every occasion the span had raised. However, he testified that on only about 40% of these passages would the bridge be fully opened with the green light going on. He further admitted that he saw the bridge being opened but then stop opening when the flotilla was about a half-mile away. It took about fifteen minutes from the time the tug signalled until the collision occurred. It takes two and a half minutes to fully open the bridge from a totally closed position. The Captain testified that he could have stopped the flotilla within a distance of 100 feet; that he did not see any green light on the bridge; that he knew the span was only partially open; that he did not know how high the boom was in its raised position and that he could not see the end of the boom from the wheelhouse. He was occupied with positioning the flotilla in the center of the draw since "you have got to be right in the center or else you will have problems, I think." No member of the crew was called on deck to assist the Captain or to act as a lookout. The bridge tender stated that he did not see the raised boom until shortly before the collision, and that he attempted to raise the span higher but without success.
Judge Carter found on these facts that Central was solely responsible for the collision.
Erie argues that this court is bound by the finding below that Central was solely responsible for the collision unless we conclude that the finding was clearly erroneous. However, a finding of negligence or lack of negligence by a district court is not subject to the clearly erroneous rule. Dinnerstein v. United States, 486 F.2d 34, 37-38 (2d Cir. 1973); Director General of India Supply Mission v. S.S. Maru, 459 F.2d 1370, 1373 n. 3 (2d Cir. 1972), cert. denied, 409 U.S. 1115, 34 L. Ed. 2d 699, 93 S. Ct. 898 (1973), In re Marine Sulphur Queen, 460 F.2d 89, 97 (2d Cir.), cert. denied, 409 U.S. 982, 34 L. Ed. 2d 246, 93 S. Ct. 318 (1972); Leather's Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 813 (2d Cir. 1971).
The findings of fact are not disputed by the appellant here; there is no question of the veracity of witnesses. Rather, the appellant contests the finding of negligence, which involves "the formulation and then the application of a standard of conduct to evidentiary facts found to be established." Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355 (2d Cir.), cert. denied, 365 U.S. 869, 5 L. Ed. 2d 860, 81 S. Ct. 905 (1961). The evaluation of a claim of negligence is a task which we can certainly undertake where the findings of fact of a district court are not disputed on appeal.*fn2 This court has held, however, that the district court's determination that a party is liable by reason of negligence "will ordinarily stand unless the lower court ...