Opinion
Nos. 300-302.
April 3, 1933.
Appeal from the District Court of the United States for the Southern District of New York.
Separate libels by Martin P. Horan, the Seaboard Scow Corporation, and Gildersleeve Company against the steam tug Reichert Line, her engines, etc., Reichert Towing Lines, Incorporated, claimant, which were consolidated. From interlocutory decrees for libelants, claimant appeals.
Affirmed.
Three scows were stranded while in tow of a tug. Each sued the tug. The cases were consolidated for hearing, and a decree was entered for each libelant.
The claimant's tug, Reichert Line, left the stake boat in the harbor at Port Jefferson bound for New York about a quarter past 12 on the morning of November 12, 1928, with a tandem tow of five loaded scows on a fifty-foot bridle hawser. The hawser boat was the Seaboard No. 41. The Connett, the Catherine Horan, the Gildersleeve No. 344, and the Henry followed in that order. The tide was then at the first of the ebb. A northeast wind was changing to east, some rain was falling, the barometer steady, and in the harbor, which in the vicinity of the stake boat was sheltered by the high bluffs of Mt. Misery, it was calm. The tug brought its tow into position to head straight for the channel, about one hundred and fifty feet wide, which leads to Long Island Sound and entered the channel. Before gaining the Sound, the master of the tug decided that the weather conditions outside were so forbidding that safety required his turning back. His tow had already started to sheer to the west side of the channel but probably no boat went aground before the tug attempted to turn back. The channel was too narrow to permit the tow to be turned and the tug cast off the towing hawser from the Seaboard No. 41 intending to go back and make fast to the Henry to pull the tow from that end back into the harbor. While this was being done, the flotilla went aground. As the tug was unable to free any of the grounded boats except the Seaboard No. 41, she took that scow back to the stake boat and left the others until later in the morning when she returned and pulled off all but the Henry. The libels involved in this appeal were filed to recover the damages sustained by the Catherine Horan, the Seaboard No. 41, and the Gildersleeve No. 344.
Park, Lynch Hagen, of New York City (Anthony V. Lynch, Jr., Charles W. Hagen, and Henry C. Eidenbach, all of New York City, of counsel), for claimant-appellant.
Single Hill, of New York City (George B. Warburton, of New York City, of counsel), for libelant-appellee.
William F. Purdy, of New York City (Edmund F. Lamb, of New York City, of counsel), for Seaboard Scow Corporation.
Before MANTON, SWAN, and CHASE, Circuit Judges.
It was alleged in all the libels that the tug negligently grounded the scows. The tug answered by denying all negligence and alleging that the scows took the ground because of a sudden shift in the wind and change in the weather while they were in the channel and the tug was trying to take them back to safety in the harbor. Thereupon a notice of a motion to amend the libel in the Seaboard Case was filed and also the Gildersleeve Case, but not in the Horan Case. These amendments charged the tug with fault in not going out into the Sound to ascertain conditions before trying to take out the tow and in not taking "into account the effect of the wind and tide in proceeding from Port Jefferson Harbor." Considerable stress has been placed by the appellant upon what are thought to be fatal variations between the allegations and the proof upon which the District Court reached the conclusion that the tug was at fault for taking the scows into the channel without first going out itself to ascertain whether conditions in the Sound were sufficiently favorable to warrant making the attempt.
It is true that a libel must state facts which if proved make out a cause of action and that the proof must conform to the allegations. Certain it is that the decree must be secundum allegata et probata. The Hoppet v. U.S., 7 Cranch (11 U.S.) 389, 3 L. Ed. 380; Goodrich Transit Co. v. Chicago (C.C.A.) 4 F.2d 636; Second Pool Coal Co. v. People's Coal Co. (C.C.A.) 188 F. 892; McKinlay v. Morrish, 21 How. (62 U.S.) 343, 16 L. Ed. 100.
But the true theory of these causes of action has, we think, been mistaken by the appellant. The allegations it now says were both necessary and absent relate only to matters of defense raised by the answers. A prima facie case against the tug was alleged in libels which set forth that the scows went aground while in tow of the tug and thereby received injury caused by the failure of the tug to tow them with due care. Such allegations put upon the tug the burden, when she admitted the grounding of her tow, of explaining that the grounding and consequent damage were not due to fault on her part. The Wyomissing (C.C.A.) 228 F. 186; The Westerly (C.C.A.) 249 F. 938; The Stirling Tomkins (C.C.A.) 56 F.2d 740; The Nat Sutton (C.C.A.) 62 F.2d 787; The Fred'k Lennig (C.C.A.) 45 F.2d 691; The Clarence P. Howland (C.C.A.) 16 F.2d 25; The Golden Age (C.C.A.) 6 F.2d 877. She attempted to make the required explanation by proving that she was caught in the channel by a sudden change in the wind and weather. The District Court did not consider the evidence sufficient to prove that the grounding was caused by such a change in weather conditions and neither do we. This, of course, made it inevitably follow that the tug took her tow from a place of safety at the stake boat and attempted what was foolhardy in trying to haul the scows to New York with conditions as they were in the Sound; but it followed not because the libelants were bound to allege and prove as much, but because, when the tug failed to prove a sudden change in weather conditions, the only possible alternative was to believe that the weather was as bad when she entered the channel as it was when her master decided to go back. The channel was only a few hundred yards long. Consequently, either his decision to go back was due to excessive timidity which made the effort to return when in the narrow channel both unnecessary and lacking in due care for the safety of the scows or he ventured into the channel rashly without then exercising due care for the safety of his tow. What was said in the opinion below served to point out what was thought would have prevented the ill-fated attempt to leave the harbor. But, whether right or wrong, it went merely to the defense, and, if disregarded, the prima facie case laid and made in behalf of each libelant still remains sufficient to support the decrees entered.
Affirmed.