Biggs, Kalodner and Freedman, Circuit Judges. Kalodner, Circuit Judge (dissenting).
The appeal at bar presents a narrow issue. Prasnal, the claimant-appellant, an employee of Seaboard Coal Dock Co., sued M. & J. Tracy, Inc., the owner of the Barge "Herbert E. Smith", and others on April 11, 1964, alleging that he was injured because of the unseaworthiness of the barge and its negligent operation by Seaboard allegedly acting in privity with Tracy. On August 25, 1965 Tracy filed a petition for exoneration from liability or for limitation of liability to the value of the barge, stipulated to be $38,000, pursuant to 46 U.S.C. §§ 181-189. The court below granted Tracy's petition for exoneration from liability.*fn1 The appeal at bar followed.
The substantial basis for Prasnal's appeal rests on his contention that the barge was unseaworthy because of operational negligence.*fn2 Mascuilli v. United States, 387 U.S. 237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (1967). The gist of the trial court's decision*fn3 on this issue is contained in the following statement in its opinion: "Claimant in this case, however, has not established that there was any negligence involved in the manner in which the barge was pulled up to the dock. While, in the ordinary case, negligence may be presumed where a vessel collides with a stationary object, Patterson Oil Terminals v. The Port Covington, 205 F.2d 694 (3 Cir. 1953), that is not the case here. Witnesses for both sides testified at trial that having the barge bump into the dock was a common practice, not only at the Seaboard dock, but elsewhere as well; and testimony by petitioner's experts proved that the practice is a seaworthy one. Claimant here has not shown that the barge was pulled with an undue amount of force causing it to crash violently into the dock. At most, the witnesses testified it was moving 'fast' but the evidence clearly establishes that the barges had hit the dock many times with approximately the same force. Claimant, therefore, has not proven that the practice was not a reasonably safe one to use in positioning the barge."*fn4,*fn5
It is hornbook law since the decision in McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 (1954), that in a suit in admiralty tried without a jury the scope of review of an appellate tribunal is no greater than that which it can exercise under Rule 52, Fed.R.Civ.Proc., 28 U.S.C., and that a reviewing court may not set aside the judgment unless it is "clearly erroneous". This is the decisive issue on this aspect of the appeal.
What occurred in connection with Prasnal's accident according to the findings of fact by the court below follows: "At approximately 5 p.m., on April 11, the procedures to shift the barge under the dumper were begun and Prasnal and Fritz Jakubczak, another Seaboard employee, boarded the barge. Captain Gomes was at that time in his cabin on the barge, and remained there throughout the shifting operation. Jakubczak secured the west winch cable to the port stern deck cleat, and then the lines securing the Herbert E. Smith to the adjacent barge were cast off. After receiving the signal to go ahead, the dock winch operator, John Bloodgood, using the west cable, pulled the barge in toward the dock, then let the line go slack, allowing the barge to drift into, and collide with, the dock. When the barge hit the dock, Prasnal landed feet first on the dock, then fell backwards into the water and was injured."*fn6,*fn7 Prasnal fractured bones of both feet and both ankles.
It will be observed that in the foregoing quotation the learned trial Judge made no finding as to whether Prasnal was thrown from the barge by the force created by the barge colliding*fn8 with the dock. He did not, however, find to the contrary. There is no evidence in the record that Prasnal tripped or fell from the barge to the dock, the deck being approximately seven feet above the dock. There is a small mystery in the record before the district court insofar as an injury to Garsick, a dock employee of Seaboard, is concerned. Garsick had his arm broken by a line from the Herbert E. Smith*fn9 at the time that the Smith was being docked and Prasnal was injured. There is no mystery concerning the fact, however, that the Smith, which was empty, weighed approximately 364 tons and there is ample evidence, in fact substantially uncontroverted evidence, that the Smith was moving, on the occasion of Prasnal's injury, not as the trial court found in the paragraph last quoted but with much greater force.*fn10 Common sense would lead one to doubt that except in very calm weather there could be any reasonably accurate approximation of the speed at which a barge like the Smith would approach the dock impelled by a line attached to a winch. This is so because of the wide variances which almost constantly attend changes in the forces of wind and tide. We emphasize the fact that the docking of the Smith by the process used by Seaboard necessarily placed the barge in an uncontrolled and uncontrollable state once the impulse toward the dock had been put upon it. The fact that the process seems to have been one generally used for the docking of barges without tugs does not sanctify it. Cf. Petition of Oskar Tiedemann & Co., 179 F. Supp. 227 (D.C.1959), aff'd., 289 F.2d 237 (3 Cir. 1961). Whether the process was a safe or dangerous one must depend necessarily upon the circumstances of each case. We find this argument of Tracy's unconvincing.
A scrutiny of the transcript of testimony discloses that the Smith's Captain, Gomes, testified that he was instructed not to handle lines when the Smith was being docked at South Amboy or Seaboard docks. Captain Gomes also stated on cross-examination by Prasnal's counsel: "I hear when the boat hit the dock so I have to press [ sic. ] myself."
Further cross-examination elicited the following from Gomes:
"A. While it [the Smith] was moving was it under proper control?
A. Well, it was pulling pretty hard.
Q. They were pulling it pretty hard?
Q. By that you mean pretty fast?
Q. I think you indicated, and the record could show it, of course, that when this barge hit the dock you were thrown against the bulkhead of your deckhouse, weren't you?
Q. Against the bulkhead of the cabin?
Q. Isn't that called the deckhouse, also? Isn't that ...