Nos. 373, 374.Circuit Court of Appeals, Second Circuit.
June 8, 1931.

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

Separate libels by John Mulqueen, as owner of the barges Patrick A. Dee and the Henry and Marion, and by P.J. Cody, as owner of the barge Margaret M. Feeley, against the steam tug New York Central No. 16, its engines, boilers, etc., claimed by the New York Central Railroad Company. From adverse decrees, the libelants appeal.

Decrees reversed.

The facts are the same in both of these cases, which were heard together, and one opinion will suffice for both.

Late in the afternoon of June 23, 1927, the tug Perservance left the stakeboat opposite Thirty-sixth street, North River, bound up the river against the ebb tide with a hawser tow of boats in seven tiers. The weather was forbidding, and it soon became evident that a thunderstorm, approaching from the west, would be encountered. As the tug and tow passed Forty-Second street, two flashes of lightning were seen, and then the master of the tug decided to, and did, pull over toward the western shore to take advantage of whatever lee the land afforded. When off the Weehawken Terminal, the collision, described below, occurred.

The claimant’s tug No. 16, with the claimant’s car float No. 18 in tow on the starboard side, left Sixty-Eighth street, Manhattan, that afternoon bound for the Weehawken Terminal, on the Jersey shore. The No. 18 was 360 feet long, and, with the fifteen cars then aboard, was loaded to about two-thirds of her capacity. The No. 16 was of sufficient size and power to tow her safely. It so happened that this tug with its tow came down the river on such a course and at such a time that, after signals were exchanged with the Perservance, she crossed the bow of that tug which was making headway very slowly, and came to a point about 500 feet off Pier 1 and abreast the Weehawken Terminal, where she lay to with her engines stopped for

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from 5 to 10 minutes waiting for the float bridge to empty. Up to that time no one on this tug had observed any signs of an approaching storm. Its position was nearly broadside to the west from which the storm was actually coming. While lying thus, the tug was as much at the mercy of the storm as one would suppose it could be. As those in charge of it were utterly unaware of need for precautions, none were taken. And then the storm did break in all its fury. Within a few minutes the wind from the west, which had been blowing at about twenty-four miles an hour, attained a velocity in excess of sixty. The engines of the No. 16 were put at full speed ahead, but were unable to overcome the force of the wind, and the tug and tow were blown out toward the Perservance and her flotilla. No one claims that the Perservance could have then done anything to help the situation. In a last desperate attempt to avoid, or minimize the effect of, a collision, the engines of the No. 16 were reversed when all hope of safety in reliance upon them at full speed ahead had been abandoned. This action did lessen the force of collision, but failed to prevent it, or the two barges, Patrick A. Dee and Henry and Marion, owned by the libelant, Mulqueen, and the barge Margaret M. Feeley owned by the libelant, Cody, from being injured. All of these boats were in the second tier of the hawser tow. Another tug of the claimant which came in response to signals for help arrived too late to give effective assistance.

Macklin, Brown, Lenahan Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellants.

Bigham, Englar, Jones Houston and Jacob Aronson, all of New York City (A.J. McElhinney and K.O. Mott-Smith, both of New York City, of counsel), for appellees.

Before MANTON, SWAN, and CHASE, Circuit Judges.

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

The claimant prevailed in the District Court on the ground that the collision was the result of an inevitable accident. If the failure of the No. 16 to observe and make ready for the approaching storm could be laid aside, we should be able to agree for it is apparent that both tugs were, to avoid a collision, helpless and the situation hopeless as soon as the wind attained its maximum velocity. But the previous neglect of the No. 16 cannot be condoned. Although the evidence is overwhelming from witnesses, including an official weather observer, that the natural and usual indications which precede such a storm were multiplying around him, the captain of the No. 16 saw none of them, heard none of them, placed his tug and tow broadside to the wind, stopped his engines, and lay to in a position quite as vulnerable as he well might have been had he deliberately prepared for disaster. He cannot be excused for such indifference to the storm warnings nature gives an observant navigator. The burden of proving that the collision was due to inevitable accident rested on the claimant, The Edmund Moran (C.C.A.) 180 F. 700, and, in the face of the previous neglect of the master of the No. 16, to which his perilous position must be attributed, the claimant has, we think, failed to carry the burden.

Both decrees reversed.