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VINCO ENTERPRISES v. NEW YORK DOCK RY.

June 1, 1982

VINCO ENTERPRISES, LTD., Plaintiff,
v.
NEW YORK DOCK RAILWAY, Defendant



The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

This is an action within the admiralty and maritime jurisdiction of this Court, 28 U.S.C. § 1333, seeking to recover salvage with respect to services alleged to have been rendered by plaintiff to defendant's carfloat in the early afternoon of October 28, 1976, in the navigable waters off Pier Nos. 2 through 4 within the jurisdiction of the United States District Court for the Eastern District of New York, 28 U.S.C. § 112(b) and (c). Trial of the case occurred before the undersigned, sitting without a jury, on April 5, 1982. What follows sets forth this Court's findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure.

 In the early afternoon of October 28, 1976, a carfloat, designated NYDR 16, owned by the defendant, New York Dock Railway, broke away from Pier No. 4 on the East River in Brooklyn where it was in the process of being loaded at defendant's terminal at that location. On the carfloat were eight railroad cars having a total value of approximately $ 235,000, themselves laden with freight having an aggregate value of approximately $ 75,000. The carfloat itself-a steel vessel built in 1957, without means of self-propulsion, approximately 290 feet by 40 feet, with the capacity for carrying railroad cars on three tracks-had a value at the time of approximately $ 140,000.

 After breaking loose, the carfloat drifted to approximately mid-channel in the East River, leaving behind at least two railroad cars in the water at Pier 4. Of the eight cars remaining on the carfloat, six were on a single track on the portside. Two were on another track on the starboard side of the vessel, resulting in an appreciable list to port. One of the two cars on the starboard side had, moreover, run off the tracks at the stern and was hanging over the stem of the carfloat.

 It was in this condition that the carfloat was first observed by Vincent Healy, the Master of The Sea Traveler, a tug powered by an 800 horsepower engine. The tug was constructed of steel in 1954, was approximately 68 feet in length with a 19-foot beam, and was owned by plaintiff, Vinco Enterprises, Ltd. At the time The Sea Traveler first observed the NYDR 16, the tug was about one-half to three-quarters of a mile northeast of the carfloat and was, itself, just passing under the Brooklyn Bridge. The tug was in the process of towing a steel barge, BG-132, owned by a corporation related to plaintiff, from Newtown Creek on the East River to the Exxon Terminal at Bayonne, New Jersey. (Both corporations were wholly owned by Healy, the Master of The Sea Traveler.) The barge was licensed and used to carry fuel oil, which is characterized as a hazardous cargo in her certificates, and was 120 feet in length with a 32-foot beam. The barge had a capacity for carrying in excess of 200,000 barrels of oil or kerosene and was without means of self-propulsion. The barge was being towed on the tug's portside and was "light" or empty of fuel oil at the time. In that condition, the barge presented a continuing hazard because of the danger of ignition to a flammable mixture of fuel and air in her hold. The value of the tug, The Sea Traveler, at the time was approximately $ 150,000. The value of the barge was in the neighborhood of $ 60,000. In addition to the Master, the tug was manned by two deck hands.

 The charter hire for The Sea Traveler was, in 1976, $ 1,350 for 12 hours. The daily payroll for the crew of two men was $ 125. During the preceding three-week period, the tug was only active on seven days, and during that period it appears from its log to have been engaged in approximately five short tows of barges in New York Harbor. The figures for charter of The Sea Traveler appear, moreover, to be roughly comparable to the evidence concerning hourly towing rates charged by two other tug boat companies for towing services in the harbor. *fn1"

 When he first observed the carfloat, Healy was uncertain whether it was in tow because his view of the carfloat's far side was obscured by the cars on the float. As the carfloat swung in the flood tide, which was carrying the carfloat towards The Sea Traveler, Healy perceived that the carfloat was not under tow. At the same time, he became aware of a crewman on the carfloat signalling him with his arms in apparent distress. Although no other vessels were to be observed in the area, Healy responded to this situation by using an emergency channel to alert the Coast Guard and other vessels that there was a loose carfloat in midstream in the East River, which constituted a menace to navigation. He received no response to this emergency call.

 The menace to navigation which Healy foresaw resulted from the fact that the carfloat was being carried by a tidal current of between 1 and 2 knots towards the Brooklyn Bridge. At the Brooklyn Bridge the East River turns from an approximately northeasterly direction to almost due east. It continues in that direction approximately one nautical mile to Wallabout Bay, the site of the Brooklyn Navy Yard, where the stream does an almost right angle turn at Corlears Hook before passing under the Williamsburg Bridge. Because of the "s" curve in the river and its relatively narrow width in this area (approximately 1/3 nautical mile), vessels proceeding in a southwesterly direction on the East River at Corlears Hook have a blind turn onto the lower stretch of the East River.

 Healy's next step was to sound his general alarm bell to alert his two-man crew to the situation. After stationing one crew member forward and one aft, he executed a 180o turn in order to maneuver the starboard side of The Sea Traveler (the portside being encumbered with the oil barge) into a position alongside the free-floating tank car. In doing so, Healy successfully avoided the hazards of an excessively hard contact between the tug and the carfloat or between the oil barge and the carfloat. Healy testified that he was concerned that too rough a contact between The Sea Traveler and the carfloat would cause the carfloat to lose the hanging car, with the potential result that the carfloat would capsize. In addition, Healy testified that he was concerned that contact between the carfloat and the oil barge might cause a rupture of the oil barge's hold, creating the possibility of ignition to the flammable fuel/air mixture in the empty tanks. Healy was also concerned to prevent the deck hand on the carfloat from being lost through a premature effort to jump to safety from the carfloat to the tug. To avoid this hazard, he instructed his crew to tell the deck hand on the carfloat to remain where he was until the tug was secured to the bits on the carfloat.

 Having accomplished these maneuvers successfully and having secured the carfloat to The Sea Traveler's starboard side, Healy then towed the carfloat to the nearest pier, Pier No. 2. Although defendant suggests that plaintiff should have towed the carfloat to Pier No. 4, from which she had broken loose, the course followed by Captain Healy was the more prudent one, given the fact that he was towing a carfloat, customarily handled by tugs that are powered by 2,000 horsepower engines, that he was encumbered with an oil barge containing a flammable mixture on his portside, and that the stability of the carfloat in its then condition was unpredictable, at least by Captain Healy. At Pier No. 2, Healy and his crew, after themselves going onto the carfloat to secure it to the pier, attempted to secure the hanging railroad car to the float by means of a bridle. The entire salvage operation, from initial sighting to securing the carfloat, took between 30 and 45 minutes. Shortly after the carfloat was secured at Pier No. 2, a second tug, The Brooklyn, belonging to defendant, appeared on the scene and moved the float from Pier No. 2 to Pier No. 4. Defendant argues, based on the log of The Brooklyn, which shows a 20-minute trip from The Brooklyn's last berth to Pier No. 2, that the rescue operation took less than 30 minutes. This argument assumes, however, that the Brooklyn was alerted to the carfloat's plight immediately after it broke loose and responded to the alert as soon as the message instructing it to do so was received. There is no evidence to support this, and I find it improbable that the operation described by Captain Healy took less than a half-hour from start to finish.

 DISCUSSION

 The elements of a claim for salvage have been articulated recently by Judge Weinfeld in Markakis v. S/S Volendam, 486 F. Supp. 1103, 1106 (S.D.N.Y.1980):

 
"In order to prevail upon a claim for a salvage award, the plaintiff must prove three essential elements: "1. A marine peril. 2. Service voluntarily rendered when not required as an existing duty or from a special contract. 3. Success in whole or in part, or that the service rendered contributed to such success.' (Quoting from The Sabine, 101 U.S. 384, 25 L. Ed. 982 (1879) )"

 There appears no real dispute between the parties as to any of these elements. In all events, I find that a marine peril existed. The possibility of destruction of the carfloat was to be reasonably apprehended as a result of the vessel's list, the precarious position of the hanging railway car, and the possibility that loss of the hanging car (which remained coupled to the other car on the starboard track) could result in the carfloat's capsizing. *fn2" In addition, the possibility of collision existed in the heavily ...


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