DocketNumber: No. 18109
Citation Numbers: 87 F. Supp. 222
Judges: Kennedy
Filed Date: 8/18/1949
Status: Precedential
Modified Date: 11/26/2022
On September 18; 1946, Helen K. Henjes and Edmund F. Bowen, as executors of the Estate of Gerd H. Henjes, owners of the tug Gerd H. Henjes (referred to as Henjes)
Morris had crossed the bay in a generally northerly direction, coming from quarantine. She rounded to, somewhere to the southward of Red Hook Point, and then shaped her course almost due south, keeping quite close to the pierheads, as she made her way toward the gap. A docking pilot was then in charge of the ship. On her port bow there was a Moran tug, merely hanging on; a second Moran tug was trailing the steamer, ultimately to assist her in a docking operation at Pier 3, Erie Basin. Morris was making about four knots.
As Morris approached the gap, which is nearly 200 feet wide, the tide was at ebb. There was a fresh southeast wind, force about 26 miles per hour. While the day was cloudy, there was no question about visibility.
As Morris made for and entered the gap in the manner in which I described, her speed about four knots, she saw moored to the gap face of the breakwater two tugs. The entire length of the gap face from the channel to the point where the breakwater -juts off sharply to the south is about 525 feet. One of the tugs in question, owned by Dalzell (referred to as the Dalzell tug), was moored in such fashion that her stern was about 15 feet in from the channel end of the gap face. This vessel is about 70 feet long. Henjes was moored still further in toward the basin, with her bow facing the channel
As Morris rounded to on a southeasterly course to enter the gap she also noticed that a victory ship was moored starboard side to inside the basin, along the inside (easterly) face of the breakwater, in such fashion that her stern protruded some IS feet out into the gap; in addition, lying along the port side of this ship was a barge whose stern protruded five feet still further out into the fairway. .
There can be no doubt that as Morris rounded to she blew one blast, nor can there be any doubt that shortly afterward the Dalzell tug promptly backed out into Buttermilk Channel as the Morris approached. The controversy is about what happened thereafter.
Henjes says that Morris passed her quite close aboard, and then backed in order that she could get room to straighten herself out by going ahead (presumably on left rudder), so as to clear the stern of the victory ship and the barge alongside her. It is Henjes’ contention that as Morris went ahead after the backing maneuver her stern swung into the Henjes’ starboard side, slightly forward of amidships and about at the location of the pilot house, crushing the tug against the face of the bulkhead. Morris, on the other hand, at first urged in her further answering clause that Henjes suddenly moved ahead without warning and thus swung her stern away from the dock and into contact with the starboard quarter of Morris. At the trial the latter abandoned this claim. As nearly as I understand her position now, she says that Henjes was guilty of a statutory violation in that she obstructed a navigable channel, 33 U.S.C.A. § 409; that, moreover, the stern of Henjes was not properly secured, for which reason the suction created- by Morris as she passed brought Henjes into contact with the starboard quarter of the steamer, thus causing the damage.
Morris produced at least one witness who supported its suction theory, but I do not consider his evidence reliable. Moreover, the physical nature of the damage to Henjes is such that there is no escape from a finding that she was crushed between the steamer and the breakwater, and not merely sucked into the side of Morris.
Little need be said concerning the contention made by Morris that Henjes, being in the act' of obstructing a navigable channel, was under a duty to clear out as soon as she heard the blast blown by Morris, as Dalzell did, and that failing such action by Henjes she must take the consequences. It is necessary to keep in mind that the beam of Morris is only about 60 feet and that, as she entered the gap, she had nearly 200 feet width of navigable water in which to maneuver. She had at hand the assistance not of one but of -two tugs. She does not dispute that Henjes was seen from her bridge as she rounded to. To argue that under these circumstances Morris was at liberty to crush Henjes as one would step on a beetle seems to me an unwarranted extension of the statute, 33 U.S.C.A. § 409, invoked by the steamer, even if it were controlling. While custom cannot invalidate a statute, it is nevertheless the fact that tugs habitually moored where Henjes was, and for all I know they
I find as a fact that Morris was wholly to blame for the damage to Henjes, her faulty maneuvers being the only proximate cause of the disaster. This entitles the libelants to the usual interlocutory decree against the respondent, with costs.
I have filed findings of fact and conclusions of law.
. Gerd H. Henjes is a diesel propelled tug. Her length is 68.1 feet, her beam 18.0 feet, and her depth 7.9 feet. She is now, I believe, known under another name (Jane E. Murphy).
. Ira Nelson Morris is a liberty ship 442 "feet long and 57 feet wide. She displaces about 10,000 tons.