Opinion · Court of Appeals for the Second Circuit

The Socony No. 19

29 F.2d 20

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1928-11-12
Topic: bankruptcy

L. HAND, Circuit Judge (after stating the facts as above). We are content to accept the finding of the judge as to the place of the collision, though so far as we can see it was equally open to him to plaee it further to the east or to the west. He saw the witnesses, and under familiar law his conclusion we should accept. So mueh granted, the Soeony’s navigation was plainly at fault.

Citator

UpLaw has not yet analyzed The Socony No. 19. The absence of a flag is not a finding that it is good law.

Cited by: 21 opinions

THE SOCONY NO. 19,29 F.2d 20(2nd Cir. 1928)

THE SOCONY NO. 19. THE NEW YORK MARINE NO. 3.

Nos. 39-42.

Circuit Court of Appeals, Second Circuit.

November 12, 1928.

Appeal from the District Court of the United States for the Eastern District of New York.

Separate libels by Thomas Sheridan, by Emmett McLoughlin, and by Henry Guindon against the steam tug Socony No. 19, etc., claimed by the Standard Transportation Company and the steam tug New York Marine No. 3, etc., claimed by the New York Marine Company. Decree holding the respondent first named solely liable, and claimant therein appeals. Affirmed.

Appeal from a decree of the District Court for the Eastern District of New York holding a tug, Socony No. 19, solely liable for a collision.

The collision happened in the Kill van Kull at the mouth of Newark Bay, upon a dark April night, when the rain was falling, but the visibility, except for that, was good. The situation was as follows: The Socony No. 19, a large and powerful tug, was passing through the Kill, bound west, with a large light barge alongside on her starboard hand and a smaller loaded one on her port. Together the flotilla had a beam of about 110 feet and a length of 270, that of the starboard barge. As the tug approached the Bergen Point light, she made out dead ahead another flotilla, made up of a tug with two barges alongside to starboard and one to port. This required the Socony to slow down, and eventually to stop, as she said, at some distance eastward of the light. In this fashion she drifted forward until the collision.

The Marine No. 3 was a harbor tug used in the towage of coal barges through the Kills. On this night she had 12 loaded barges in tow in 4 tiers, making a solid block of barges about 70 feet in width and 400 feet long, which she was pulling on a 60-fathom hawser. The tide was in the flood, which makes into Newark Bay from the Arthur Kill, between the New Jersey shore and the west side of Shooter's Island. South of the island it is slack water until, going east, one reaches a somewhat undefined point in the mouth of Newark Bay, where the flood from the Kill van Kull is encountered flowing northward around Bergen Point. The Marine No. 3 had passed between Shooter's and Staten Islands and out of this slack water, and at the time of collision was pulling against thePage 21strength of the flood, into which all but the last tiers had got.

Ahead of the Marine No. 3 all the way up the Arthur Kill, a Reading tow had been steaming, made up of 14 barges in 5 tiers upon a long hawser. The Marine No. 3 had kept a distance of some 500 feet astern of this tow, and, like her, was well over on the south side of the channel, where she would longest escape the flood as it came through the Kill van Kull. As the Reading tow began to feel the force of the flood, her speed over the land fell off in spite of her full power, and the Marine No. 3, though at slow speed, overhauled her and eventually closed up the distance she had maintained. As she was at slow speed, and must keep steerageway, it became necessary for her to starboard her helm and pull out under the port quarter of the Reading tow. This would not have been serious, but for a dredge which had been stationed by the government at a point about 500 feet off the bulkhead line of the Staten Island shore. The Reading tow had to give this dredge a wide enough berth for safety, about 75 feet, and the port side of her tow was therefore about 640 feet north of the bulkhead line. Although the Marine No. 3 passed close alongside the Reading tow, the port side of her port barges was 70 to 80 feet still further north, and therefore over 700 feet from the bulkhead line.

The Socony admitted that she had seen the Reading tow as she steamed westward, but insisted that, while she was not more than 200 feet from the light, the Marine emerged from behind it and presented a new obstacle in her course. She signaled for and tried to execute a port to port passing, but, as it was impossible for her with safety to go nearer the light, her port barge collided with the Marine's port barge in the hawser tier. The Marine's version put the collision much further to the west, west indeed of the dredge, opposite which the tug was when it occurred, lapping the last tier of the Reading tow. Since the Socony had ample water on her starboard hand, and the Marine could not port, the failure to execute the passing upon which both vessels had agreed was to be attributed solely to the Socony.

There was the usual conflict in testimony as to distance and position, which the judge solved by fixing the place of the collision about opposite the dredge, but on the south side of the channel. This was a point be-between the extremes set by each party, but, as it allowed the Socony ample water in which to port and pass, he held her solely liable.

Barry, Wainwright, Thacher Symmers, John C. Prizer, and Everett Colby, all of New York City, for the Socony No. 19.

Burlingham, Veeder, Masten Fearey, of New York City (P. Fearson Shortridge and Chauncey I. Clark, both of New York City, on the brief), for the New York Marine No. 3.

Single Single and William J. Mahar, all of New York City, for appellee McLoughlin.

Before MANTON, L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

We are content to accept the finding of the judge as to the place of the collision, though so far as we can see it was equally open to him to place it further to the east or to the west. He saw the witnesses, and under familiar law his conclusion we should accept. So much granted, the Socony's navigation was plainly at fault. Either she was not alert, and saw the Marine too late, or she was unaccountably tardy in taking action. She had ample water on her starboard hand, and can be excused only on the theory that she was confronted by a sudden emergency when the Marine pulled out from under the Reading's stern, a theory which her answers do not expressly allege. While we think it a fault for the Marine so to navigate, we cannot believe that her speed against the tide with such a tow was fast enough to create anything remotely like an emergency, or to prevent the Socony from avoiding the collision. Indeed, the exchange of passing signals, as well as the emphasis upon the crowding, forbid the conclusion that the case was a surprise; had it been, the Socony would have backed and blown an alarm.

Coming, then, to the Marine, we agree that it should have been unnecessary for her to pass the Reading. It is no excuse that she failed to make enough allowance for the Reading's striking the tide and her own closing up of the distance between them. She should have anticipated this and kept a distance which would have allowed her to stay in tandem. It was a fault to try to pass because of the presence of the dredge. Considering that this craft was anchored well out in the fairway, and that the Reading occupied 150 feet more, the presence of the Marine's tow abreast added an obstacle which might incumber the navigation of westbound craft. Indeed, if the two tows had held their positions when they steamed past the light, the Marine would have plainly been out of position. This would have been all the more true,Page 22when the flood should catch the tows and swing them into the bay, as later on it would probably have done.

Yet, although we think that the Marine's maneuver was unjustifiable, this is because of a situation which would have arisen later. So far as concerns the Socony, it had not yet developed those embarrassments which condemn it. She had plenty of water to starboard, and, as we have already said, ample opportunity to accommodate her navigation to a situation not suddenly thrust upon her. Therefore, accepting the position of the collision fixed by the judge, as we do, we think that it was a case where the Marine's fault was a condition, not a cause, of the collision, The Clara, 55 F. 1021 (C.C.A. 2); The No. 1, 180 F. 969 (C.C.A. 2); The Morristown, 278 F. 714 (C.C.A. 2); Commonwealth, etc., Line v. Seaboard Transp. Co. (D.C.) 258 F. 707. By this we only mean that the results of the fault were apparent to the Socony in season, and that she could have avoided them, had she been properly attentive, while the Marine, once she got abreast of the Reading, was unable to do anything more than she did. Certainly it is true that, as between the two, the Socony was much more gravely at fault, and the case is one in which we will not search too closely as to the effect of the Marine's navigation.

The case is not wholly free from doubt, but we think that the District Judge was right, and the decree will be affirmed.