Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.
This is a libel in personam brought by the American Dredging Company, owner of the Steam Tug L. Y. Schermerhorn, against the United States, Parry Navigation Company, Inc. and Union Stevedoring Corporation. The action was brought for injuries suffered by the tug Schermerhorn in an accident which took place at the Greenwich Coal Pier, Delaware River, Philadelphia, about 7:30 P.M. on the evening of January 22, 1946. The libel was dismissed on the merits and the libellant appeals.
Differing from many accident cases this one presents comparatively little conflict in the testimony. The point in controversy between the parties is the correctness of the conclusion reached by the Trial Judge upon the facts, not the question of what facts occurred. Our questions are: (1) upon the facts shown was the libellant negligent in the operation of the tug; (2) was there negligence on the part of the Stevedoring Company or those in charge of the liberty ship, Royal S. Copeland?
The fact situation can be briefly described. The liberty ship, Royal S. Copeland, was, on the 22d of January, 1946, at the Greenwich Pier loading coal. She was moored starboard bow to the south side of the pier, with her hull projecting from the pier at an acute angle. The night was clear. The tide had been running ebb for something more than two hours and was three feet above low water. There was a light wind downstream. About 150' south of the pier there was a mud flat. A dredge belonging to the libellant was working in the area between the pier and the mud flat digging out silt. The Schermerhorn was coming in with an empty scow 144' X 40' which was to be delivered to the dredge and the filled scow removed. The Copeland, The Schermerhorn, the dredge, the empty scow and the loaded scow were the sole occupants of the area between the pier and mud flat at the time in question.
The Schermerhorn came toward shore in a course parallel with the pier. She was towing the empty scow which was fastened to her port side. When she drew close to the ship she made a sharp left turn to clear the stern, followed soon by a right turn which brought her along the port side of The Copeland, the object being to approach the dredge by proceeding closely along the pier. The climax to this mildly exciting story of the perils of the sea may be related in the words of finding of fact 14 made by the District Judge: "14. When the 'Schermerhorn' reached a position approximately abreast the number four hold of the 'Copeland,' the 'Schermerhorn's' stack became fouled with a guy which extended from the end of the port after boom of the 'Copeland' to the vessel's rail. The 'Schermerhorn's' stack was raked aft, and she received certain other damage. There was no apparent damage to the 'Copeland.'"
Who must pay the costs of repairs to The Schermerhorn? There was a considerable amount of testimony and an even larger amount of argument concerning the position of the boom on the deck of The Copeland. This was a 54' boom supported by the after-mast. While the coal was being loaded this boom was left at an angle of about 45 degrees and it projected some 14' or 15' beyond the side of the vessel. The argument for the libellant was that this was a dangerous situation in which to leave a boom. It was answered by saying that this position of a boom is the customary one while a ship is being loaded and that topping a boom would be a time consuming and, therefore, an expensive process.
This is all very interesting and sometime we may have to decide whether the leaving of a boom in this way is either negligence per se or sufficient grounds on which the trier of the fact can find negligence. But we do not have to do it in this case.The Schermerhorn's stack did not hit the boom, but instead was fouled by the wire cable which hung from it. That is what the Trial Judge found was the cause of the accident and a reading of the testimony leaves no doubt in our minds that this was correct. This wire cable which caught the stack extended from the end of the boom to the rail or deck of the ship. It must have been loose, we think, or it could not have caught the stack the way it did. It is one thing to insist that a boom extending overside during loading is a convenience which meets the test of reasonable care. It is another thing, we think, to have attached to that boom a steel rope, dark in color, which is sufficiently loose to form a bight which catches passing vessels. The immediate analogy suggested to one's mind is a wire snare put in the woods to catch rabbits.
We think there was negligence in permitting the slack cable to be in the position where it caught the stack of The Schermerhorn. We do not think that those in charge of The Schermerhorn were negligent in not seeing the cable.It was nighttime and there were plenty of lights on both The Schermerhorn and The Copeland. But this cable is not a heavy one and is dark in color. It seems to us there was no failure of care on the part of the lookout of either the tug or towed barge in failing to discover it.
The learned Trial Judge thought that libellant could not recover because the accident was caused by the navigation of The Schermerhorn in unreasonably close proximity to The Copeland. The tug came within two feet of the ship's side. Counsel for the libellant has earnestly urged upon us that The Schermerhorn was skillfully navigated, that it was a sound practice for the captain to keep his vessel as far upstream as he could since the wind and the tide were both against him, and he had the problem of keeping both tug and scow away from the mud flat. However, it was found as a fact that The Schermerhorn could have kept 30' south of The Copeland without incurring risk of stranding either tug or scow. It is easier to figure such mathematiical conclusions in the quiet of chambers than it is upon a January night on the water. We are willing to go along with the conclusion, however, that The Schermerhorn did cut its distance between the tug and ship too closely. But it did not hit the ship until after its stack had been fouled by the wire. If the negligently placed wire had not been where it was, no damage would come from the very close proximity of the two vessels.
We have, therefore, a situation where both are at fault,*fn1 and the rule of admiralty is to divide the total loss equally between the two. Since The Copeland had no injuries, the owners of The Schermerhorn are entitled to recover for half their damage.
The Union Stevedoring Corporation is liable. Its employees swung the boom of The Copeland outward and must necessarily have been the ones who left the dangerous bight in the wire cable. The Parry Navigation Company is not liable. Publicker Commercial Alcohol Co. v. Independent Towing Co., 3 Cir., 1948, 165 F.2d 1002. We think there is sufficient to impose liability for the defective condition of the boom alone upon the owners of the ship. The ship's officer was in charge and acknowledged both his presence and responsibility for general supervision.
The stevedoring contract with the Government is of record and requires indemnification of the United States by the stevedores in certain cases. Contrary to the Government's suggestion, however, we do not think that a judgment for the United States against the stevedores is appropriate at this time.*fn2
The judgment of the District Court will be reversed and the case remanded for further proceedings not ...