Petition Of Kinsman Transit Co.

338 F.2d 708 (1964)

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Nature of the Case

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Facts

The MacGilvray Shiras, owned by The Kinsman Transit Company, was moored at the dock of the Concrete Elevator, operated by Continental Grain Company. She was loaded with grain owned by Continental. The berth, east of the main portion of the dock, was exposed in the sense that about 150' of the Shiras' forward end, pointing upstream, and 70' of her stern -- a total of over half her length -- projected beyond the dock. This left between her stem and the bank a space of water seventy-five feet wide where the ice and other debris could float in and accumulate. The position was the more hazardous in that the berth was just below a bend in the river, and the Shiras was on the inner bank. None of her anchors had been put out. Large chunks of ice and debris began to pile up between the Shiras' starboard bow and the bank; the pressure exerted by this mass on her starboard bow was augmented by the force of the current and of floating ice against her port quarter. The mooring lines began to part, and a 'deadman,' to which the No. 1 mooring cable had been attached, pulled out of the ground. The stern lines parted, and the Shiras drifted into the current. The ship keeper took no action to ready the anchors by releasing the devil's claws (he had 40 minutes) and when released the anchors jammed and could not be dropped. The trial judge reasonably found that if the anchors had dropped at that time, the Shiras would probably have fetched up at the hairpin bend just below the Concrete Elevator, but in the worst case, the anchors would have considerably slowed her progress. She struck the bow of the Michael K. Tewksbury. Her ship keeper had left around 5 P.M. and spent the evening watching television with a girlfriend and her family. The collision caused the Tewksbury's mooring lines to part; she too drifted stern first down the river, followed by the Shiras. The collision caused damage to the Steamer Drucken-miller which was moored opposite the Tewksbury. Eventually, parties were notified that problems were afoot and the authorities notified the crew on the Michigan Avenue Bridge to raise the bridge. There was more than sufficient time to raise the bring from the first and subsequent warnings as all occurred before the two minutes and ten seconds needed to elevate the bridge to full height after traffic was stopped. The conflicting evidence shows that the operator on the earlier shift had not yet returned from a tavern when the telephone call from the fire station was received; that the operator on the second shift did not arrive until shortly before the call from the elevator where the Tewksbury had been moored; and that in consequence the bridge was not raised until too late. The ships grounded on each other damming the flow of ice and damages from the back up of ice were felt up to three miles from the grounding. The court found that the faults of the Shiras were without the privity or knowledge of her owner, thus entitling Kinsman to limit its liability, that the Tewksbury and her owner were entitled to exoneration; and that the City of Buffalo was at fault for failing to raise the Michigan Avenue Bridge. For the damages sustained by the Tewksbury and the Druckenmiller in the collisions at the Standard Elevator dock, Judge Burke allowed those vessels to recover equally from Continental and Kinsman, jointly and severally, subject, however, to the latter's right to limit liability. He held the City, Continental and Kinsman equally liable jointly and severally (again subject to Kinsman's limitation of liability) for damages to persons and property sustained by all others as a result of the disaster at the bridge. But, on the basis of the last clear chance rule, he held the City solely liable for damages sustained by the other tortfeasors, to wit, the Shiras and Continental as operator of the Concrete Elevator, and refused to allow recovery by the City against them. Everybody appealed just about every issue before the trial judge.