James J. O'Neil, Libelant-Appellee, v. Steam Tug BERN, Her Engines, etc., Port Reading Railroad Company, Claimant-Appellant, and Pennsylvania Railroad Company, Respondent-Appellant

James J. O’Neil, Libelant-Appellee, v. Steam Tug BERN, Her Engines, etc., Port Reading Railroad Company, Claimant-Appellant, and Pennsylvania Railroad Company, Respondent-Appellant. (Circuit Court of Appeals, Second Circuit. June 1, 1926.) No. 362. Appeal from the District Court of the United States for the Eastern District of New York. Macklin, Brown & Van Wyck, of New York City (Paul Speer, of New York City, of counsel), for the Bern. Burlingham, Veeder, Masten & Eearey of New York City (Chauneey I. Clark, and J. Dudley Eggleston, both of New York City, of counsel), for owner of P. R. R. No. 10. Park, Mattison & Lynch, of New York City (Anthony V. Lynch, Jr., of New York City, of counsel), for appellee. Before ROGERS, HOUGH, and HAND, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. A recital and discussion of the very unusual facts of this ease would not illustrate any doubtful point of law. The debatable point herein is one of proximate cause, and we hold that the tug No. 10 cannot be held to liability, unless it be found that her navigators ought to have apprehended, not only that her tow would be so caught on the drill as to stay there, but also that another tow a considerable distance astern would be unable to avoid so slight an obstruction (if it could be called one at all) as that afforded by the boat so strangely left alongside the drill. The presence of this boat was not a proximate and contributing cause of the damages recovered herein. The decree below is modified, so as to discharge the Pennsylvania Railroad Company, and, as modified, affirmed, with the costs of this court to the appellant owner of tug No. 10.