Iron City S. & G. Div. of McDonough Co. v. WEST FORK TOW. CORP.
| Decision Date | 29 April 1969 |
| Docket Number | Civ. A. No. 1-67-F. |
| Citation | 298 F. Supp. 1091 |
| Parties | IRON CITY SAND & GRAVEL DIVISION OF McDONOUGH CO., a corporation, Plaintiff, v. The WEST FORK TOWING CORPORATION, a corporation, and Anthony J. Pitrolo, Administrator of the Estate of Paul Pitrolo, Deceased, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
COPYRIGHT MATERIAL OMITTED
Furbee, Amos, Webb & Critchfield, Fairmont, W. Va., Rose, Schmidt & Dixon, Pittsburgh, Pa., for plaintiff.
George W. May, Fairmont, W. Va., for defendants.
This is an action in admiralty brought by Iron City Sand & Gravel Division of McDonough Co. (hereinafter referred to as Iron City) against The West Fork Towing Corporation (hereinafter referred to as West Fork Towing) and Anthony J. Pitrolo, administrator of the estate of Paul Pitrolo, deceased, for the value of two barges which sank in the West Fork River on March 5, 1963. Pitrolo was president and principal stockholder of West Fork Towing. Iron City, the owner pro hac vice of the barges, bases its claim on negligence in securing the barges to a landing on the West Fork River and on the failure of West Fork Towing and Pitrolo to return the barges in a sound and seaworthy condition. West Fork Towing and Pitrolo's estate both deny liability for the loss, alleging as affirmative defenses that at the time of the delivery of the barges they were not in a seaworthy condition and that the loss was not caused by any negligence of the defendants but by Act of God. Additionally, Pitrolo's estate denies any individual liability and asserts that plaintiff must look solely to the corporate defendant for recovery in the event that liability is established. The Court, having heard the evidence, now makes its findings of fact and conclusions of law, and directs entry of its judgment as follows:
FINDINGS OF FACT
On February 8, 1963, the Mike Murphy, a vessel of West Fork Towing, arrived at the docks of Iron City on the Monongahela River, in Pittsburgh, Pennsylvania. The vessel had two barges in tow which were to be loaded with sand at Iron City's dock and returned to the Fairmont, West Virginia, landing, however, because of the cold weather, Iron City was not able to load the barges at that time. As a result, an agreement was worked out whereby West Fork Towing was to leave its two barges at Iron City's Pittsburgh landing, taking two loaded barges of Iron City in lieu thereof back to the Fairmont landing. Under this arrangement Iron City's two barges, designated I.C. 211 and I.C. 212, were to be returned by West Fork within a reasonable time after they had been unloaded. The two barges were of steel construction and were each 135 feet long, 27 feet wide and 7½ feet deep. The barges had a capacity of 500 tons each and when loaded normally had eighteen to twenty-four inches freeboard. The two barges were built in 1930 and, although there was some evidence of leakage, the evidence establishes that at the time of the delivery of possession of the barges to West Fork Towing they were in a seaworthy condition.
After towing the two barges to Fairmont, they were moored at West Fork's landing and remained there until the fifth of March, when they went adrift upon the river. West Fork Towing's landing consisted simply of a river bank into which twenty-five or thirty oil well casings had been sunk for the purpose of providing a mooring for its vessels. The sunken casings were ten inches in diameter and were filled with reinforcing rods and concrete. The casings extended from twenty-five to thirty feet down into the ground and cleared about two feet above the ground. Although Iron City alleges in its complaint that the landing was inadequately constructed, considering the size of the West Fork River and the size of West Fork Towing's operation, the evidence supports a finding that the landing was adequately designed and constructed.1 Moreover, a representative of Iron City visited West Fork Towing's landing site between the time the barges were moored there and before they went adrift. This visit was occasioned by Pitrolo's complaint as to the quality of the sand. Iron City's representative did not on this or any other occasion voice any objection or concern as to the manner in which the landing was constructed or the barges were moored.
West Fork Towing's landing is located on the right bank of the West Fork River approximately 2,000 feet from the point where the mouth of the West Fork River meets the mouth of the Tygart River to form the Monongahela River. The river is 200 feet wide at the landing and the navigable channel at that point is about 100 feet wide. From its source to its mouth the West Fork River flows in a northerly direction and, as finally moored, barges 211 and 212 were tied up to the south of West Fork Towing's landing with several other empty barges moored just north of them. The Mike Murphy was moored nearer the mouth of the West Fork River, just above the barges. Barges 211 and 212 were secured by the use of four 7/8 -inch steel cables which were tied to the steel casings or "deadheads" along the shore. The two barges were tied up parallel to the shore with the stern of the first barge secured to the bow of the second barge by the use of 2-inch hemp rope. Two of the steel cables were looped around the two timberheads on the shore side of the bow of the forward barge (the barge farther upriver from the mouth of the West Fork River), these cables being held in place by two 7-inch cable clamps. Two other steel cables were looped around the two timberheads on the shore side of the stern of the rear barge and these cables were similarly secured by the use of 7-inch cable clamps. Both the steel cables and the hemp rope were new and the evidence indicated that they were free from any defects.
On the morning of March 4, 1963, at 11:00 o'clock, a rainfall began in Marion County and adjacent counties which eventually caused the West Fork River to overflow its banks flooding the communities adjacent to the stream. At this time of the year, snow was still on the ground and the combination of rain and rising temperature resulted in the worst flood experienced on the West Fork River since the year 1888. At approximately 3:30 P.M., on March 4, the river began to rise slowly in the area of West Fork Towing's landing, however, the water remained clear and the current was not appreciably stronger, indicating that water was being expelled at the Grafton Dam on the Tygart River and backing up in the West Fork River. About this time, an inspection of the barges revealed nothing unusual, they, from all appearances, being securely moored to the deadheads on the shore. Between 3:30 P.M. and 9:00 P.M., the water level on the West Fork River rose slowly and the current became somewhat stronger, but neither the level of the water nor the strength of the current was appreciably different from that experienced during previous floods on the river. The evidence indicates that flooding was practically an annual occurrence on the West Fork River and that up until about 9:00 P.M. the condition of the river was not much different from its condition during floods on previous occasions. Between 9:00 P.M. and 12:00 midnight of March 4, however, the waters began to rise at a much faster rate and by 12:00 midnight the level of the river was rising at a rate of three feet an hour. Thus, between 9:00 P.M. and 12:00 midnight, it became apparent that this particular flood was going to be much worse than those previously experienced and that there might be some danger to the vessels in the water. Employees of West Fork Towing were at the landing from 6:00 P.M. of the 4th through the 5th of March in order to keep a watch on the equipment and to do whatever they could to protect them from damage, but as a result of the flooded condition of the river, it became impossible to go upon the barges to add more cables. During the late hours of the 4th and the early morning hours of the 5th, West Fork Towing employees continued to check the lines on the barges. Around 3:30 A.M., March 5, barges 211 and 212 broke loose from their moorings and went adrift upon the river. These two barges struck several empty barges also tied to the shore setting four more of West Fork Towing's barges loose on the river.
None of West Fork Towing's employees actually saw the barges break loose, but an inspection of the mooring cables showed that the lead cable on the bow of the forward barge was intact, indicating that the timberhead on that barge had pulled loose. The three remaining cables which had been tied to barges 211 and 212 were broken. The evidence indicates that timberheads of the type used on barges 211 and 212 had a tendency to break off under severe stress, and though the timberheads on 211 and 212 appeared capable of withstanding normal river conditions, inspection had shown that they were somewhat loose. The evidence supports a finding that the timberheads were in the described condition at the time the barges were turned over to West Fork Towing and that this condition was easily ascertainable by inspection.
Broadly defined, "bailment" includes the delivery of personal property by one person to another for a specific purpose with a contract, express or implied, that the purpose shall be faithfully executed, and the property returned or duly accounted for, 8 Am.Jur.2d, Bailments, Section 2 (1963). Iron City having shown by the evidence a transfer of possession and control of the barges to West Fork Towing as an incident of a business transaction between the two parties, the existence of a bailment relationship is established, giving rise to certain rights and liabilities normally a part of such a bailor-bailee relationship. When a bailor-bailee relationship is entered into for the mutual benefit of the parties, as in the present case, the bailee...
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