Kelley Island Lime & Transport Co. v. City of Cleveland
| Decision Date | 23 June 1942 |
| Docket Number | No. 3332.,3332. |
| Citation | 47 F. Supp. 533 |
| Parties | KELLEY ISLAND LIME & TRANSPORT CO. v. CITY OF CLEVELAND et al. THE HYDRO. |
| Court | U.S. District Court — Northern District of Ohio |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
J. Harold Traverse and Lucian Ray (of Duncan, Leckie, McCreary, Schlitz & Hinslea), all of Cleveland, Ohio, for libelant.
Kent H. Meyers and Robert J. Selzer, both of Cleveland, Ohio, for City of Cleveland.
Charles Chapla (of Davis & Young) and Meyer A. Cook, both of Cleveland, Ohio, for L. A. Wells Const. Co.
Leslie H. Vogel (of Cassels, Potter & Bentley), of Chicago, Ill., and John H. McNeal (of McNeal & McNeal) and Carl A. Schipfer (of McKeehan, Merrick, Arter & Stewart, and George Wm. Cottrell) all of Cleveland, Ohio, for Standard Accident Ins. Co. and Western Foundation Co.
The libelant, as the owner of the sand-sucker Hydro, brought suit against the City of Cleveland to recover all of the damages which proximately resulted to her from the striking of a hidden obstruction in the Cuyahoga River allegedly placed there by the City of Cleveland while engaged in the demolition of the old Columbus Road Bridge, as the Hydro was passing through the draw of the old Columbus Road Bridge spanning the river on the night of September 12, 1939.
The City of Cleveland impleaded the Western Foundation Company alleging that it was the principal contractor hired to remove and reconstruct the bridge as well as the Standard Accident Insurance Company because of their bond to indemnify and save the City of Cleveland harmless from actions growing out of the demolition and construction work.
The Western Foundation Company and the Standard Accident Insurance Company in turn impleaded the L. A. Wells Construction Company alleging that it was hired as sub-contractor to do the work of removal of the Columbus Road Bridge.
The trial of the cause consumed twenty actual court days and the written transcript of the record is in excess of twenty-three hundred pages. Recital in minute detail of all the evidence presented is impractical and unnecessary to acquaint the parties with the court's reasons for the decision rendered, or to advise the reviewing court of the trial court's basis for the decision.
A brief summary of the evidence presented will suffice:
It appears that the Hydro, a steel, single-screw vessel, 185 feet long and 40½ feet wide, carrying a crew of twenty-five, on the clear night of September 12, 1939, coming from Fairport Harbor with a load of sand, proceeded up the Cuyahoga River, a serpentine, navigable water about 105 feet wide. She tied up at dock to permit the steamer McGean, a single-screw vessel, 480 feet long, with a 56-foot beam and 30-foot depth, carrying iron ore and coal, to go up the River ahead. About 9:40 p. m., on that night, while travelling about two to three miles an hour within the confines of the City of Cleveland, her forward end being in the draw of the old Columbus Road Bridge, she struck some obstruction on the bottom of the river.
When the Hydro's stem was some distance from the draw of the old Columbus Road Bridge she passed the scow Wellston on the starboard side without signalling the Wellston, giving the Wellston a clearance variously estimated at about 10 to 25 feet. At that point the navigable portion of the river between the Wellston and the other side of the river was 60 feet wide.
Practically all the members of the crew felt the rubbing of bottom. The Hydro lurched and rolled for a matter of a second or so. She rolled over starboard and straightened, and the crew noticed that she had a substantial list of about 5 degrees when she had just about passed through the draw.
The master of the boat ordered a sounding to be made. He received the report that water was coming in on the port side and that there was about 35 inches of water in one of her tanks. The engineer was commanded to put on the pumps and the further order was issued to put her on bank. She proceeded about one-fourth or one-half mile from the point of striking and was beached. At that point she listed starboard about 20 degrees. The cables were fastened and the master of the distressed boat sought assistance from several sources, but whatever aid arrived was in vain.
All the crew who felt the striking or rubbing testified that it appeared that the water was coming from the bottom of the vessel. The pumps could not take care of the water, the list increased steadily, the crew was ordered to abandon the boat; soon the cables gave way and the Hydro sank at 2:45 a. m. the following morning before aid arrived to save the cargo or anything aboard ship.
The wreckmaster came on the scene and about a week after the disaster the Hydro was raised and taken into drydock. It was then the master first learned that the water had come through a hole in number one tank, on the port side on top of the bilge about 25 feet back of the stem of the Hydro, forward of the widest part of the vessel. The hole was about 6½ inches wide, 13½ inches "up and down."
The wreckmaster employed a diver to find the cause of the damage. The diver was directed by the captain of the Hydro to drag around the middle of the draw of the old Columbus Road Bridge and on September 18, 1939, the Corps of Engineers of the United States Army raised from the Cuyahoga River a segment of a turntable, a section of steel of circular arch, with a radius of 11 feet, 2 inches thick and 15 inches wide, and it was identified as a part of the old bridge. They also brought up blocks of stone which were part of the two pivot piers of the bridge. At the time they were raised the segment was not attached to the blocks of stone.
The diver found the steel segment about 10 feet from the center line of the draw of the old bridge, at about a 45-degree angle pointing upstream and jutting out into the navigable channel about 4 feet. He was not permitted to remove it by the City of Cleveland and the army engineers who, as previously stated, undertook to do it themselves. They likewise say they found the segment at 10 feet from the center line of the draw of the old bridge.
The City of Cleveland had obtained permission from the War Department to demolish the old Columbus Road Bridge and build a new one and in the consent given it was provided:
The provisions upon the basis of which this permit was issued provided: "* * * No masonry or wrecked materials of any sort are to be dumped in the river or allowed to remain on the site and all must be removed and disposed of in a suitable manner." (Item No. 1, Sec. 1.1., Contract between the City of Cleveland and the Western Foundation Company).
The City of Cleveland then entered into contract with the Western Foundation Company to demolish the bridge and construct a new one. As part of the contract, the Western Foundation Company, as principal, and the Standard Accident Insurance Company, as surety, agreed, in part, as follows: "* * * and shall indemnify and save harmless the City of Cleveland from all suits and actions of every name and description brought against the said City, its directors, or any officer of said City, for, or on account of any injury or damage to person or property arising from, or growing out of the construction of the work in said contract specified to be done, or the doing of any of the work therein described, * * *."
The Western Foundation Company then entered into agreement with the L. A. Wells Construction Co. to demolish the bridge, which contract provided:
And further:
It appears that the L. A. Wells Construction Company proceeded under the supervision of the City of Cleveland to demolish the bridge. Because of the nature of the structure dynamite was used to dismantle the bridge in addition to manual and mechanical equipment, such as chisels, cranes and sledgehammers. The two turntables were removed in 16 segments. They were removed, because each segment weighed in excess of a ton, by mechanical equipment. It was one of these segments that was raised from the river in the vicinity of the old bridge. The employees of the Wells Construction Company, under supervision of the City of Cleveland, did all the work of demolishing the bridge.
Testimony was offered by employees of the Wells Construction Company who were on the scow Wellston when the Hydro passed, to the effect that the Hydro lurched and listed at some distance from the draw of the bridge and not while it was in the draw. The Wells Construction Company finished its work of demolition about a month prior to September 12, 1939. Both its employees as well as the City of Cleveland inspectors made soundings of the river to...
To continue reading
Request your trial
-
Moore v. Hampton Roads Sanitation Dist. Com'n
...1969); Principe Compania Naviera, S. A. v. Board of Commissioners, 333 F.Supp. 353 (E.D.La.1971); Kelley Island Lime & Transport Co. v. City of Cleveland, 47 F.Supp. 533 (N.D.Ohio 1942); 1 Benedict on Admiralty, 7th Ed. (1974), § 112, at 7-37 et seq. Cf. J. Ray McDermott & Co., Inc. v. Depa......
-
United States v. Waltham Watch Co.
... ... C., Lawrence J. McManus, of New York City, and Thurman Arnold, Edward H. Miller, and Carson ... ...
-
American Ins. Co. v. Ellsworth Freight Lines, Inc.
...674; North River Ins. Co. v. Redman, 16 Ohio Law Abst. 516, affirmed 128 Ohio St. 615, 193 N.E. 347. Cf. Kelley Island Lime & Transport Co. v. City of Cleveland, 47 F.Supp. 533, 25 Ohio Opinions The rule against splitting causes of action has likewise been applied in Ohio to actions ex deli......
-
American Zinc Co. v. Foster
...1964) 328 F.2d 515; Esso Standard Oil, S.A., v. S.S. Gasbras Sul, (2nd Cir., 1967) 387 F.2d 573; Kelley Island Lime & Transport Co. v. City of Cleveland, 47 F.Supp. 533 (E.D.Ohio, 1942). In the Gasbras Sul case the Second Circuit held that the master of a vessel caught in an emergency where......