Ira S. Bushey & Sons, Inc., Libelant-appellant, v. Dalzelleader, Inc., Respondent-appellee, 312 F.2d 231 (2d Cir. 1963)

Appellant had custody as bailee of the United States naval destroyer escort Herbert C. Jones at Gowanus Creek, New York Harbor, where the Jones was undergoing extensive overhaul. On February 25, 1958, appellee's tugboats shifted the Jones out of drydock and towed her to a nearby pier. Appellant claims that in the course of this maneuver, appellee negligently towed the Jones over and against a rocky bottom, resulting in damage to her hull and propeller.

The burden of proof that damage to the Jones was sustained on February 25, 1958 was, of course, on the libelant. There was persuasive evidence that there was no rock or stony material under water in the area of the alleged accident against which the Jones could have scraped. The testimony of witnesses at the scene where the accident was supposed to have occurred was conflicting. Neither the pilot nor disinterested Naval personnel aboard the Jones felt any bumping or scraping. Of course, the trial judge could disbelieve the contrary assertions of appellant's witnesses.

The conclusion of the trial court that the appellant had failed to show that the damage was sustained as alleged was not clearly erroneous, and must, accordingly, be affirmed. McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6, 99 L. Ed. 20 (1954); see Fed. R. Civ. P. 52(a).

Affirmed.