WR Grace & Co. v. Charleston Lighterage & Transfer Co.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation193 F.2d 539
Docket NumberNo. 6349.,6349.
Decision Date03 January 1952

Charles W. Waring, Charleston, S. C. and Horace T. Atkins, New York City (Waring & Brockinton, Charleston, S. C. and Atkins & Weymar, New York City, on brief), for appellants and cross-appellees.

G. L. B. Rivers, Charleston, S. C. (Hagood, Rivers & Young, Charleston, S. C., on brief), for appellees and cross-appellants Charleston Lighterage & Transfer Co., One Lighter, and Charleston Constructors, Inc. Frederick H. Horlbeck, Charleston, S. C. (Mitchell & Horlbeck, Charleston, S. C., on brief), for appellees White Stack Towing Corp. and Tug Fort Sumter.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and CHESNUT, District Judge.

DOBIE, Circuit Judge.

W. R. Grace and Company (hereinafter called Grace) filed in the United States District Court for the Eastern District of South Carolina, its libel against Charleston Lighterage and Transfer Company (hereinafter called Lighterage), the Barge, One Lighter, White Stack Towing Corporation (hereinafter called White Stack) and its tug, Fort Sumter. In a separate suit Adolph Weil and others, trading as Weil Brothers (hereinafter referred to as Weil), filed their libel against these same respondents. Upon failure of any of these respondents to implead, the owner of One Lighter, Charleston Constructors, Incorporated, (hereinafter referred to as Constructors), libellants requested and the District Court permitted them to amend their complaint so as to make Constructors a party to both suits. Since the issues in both causes are the same, the cases were consolidated for trial and this appeal.

Early in the morning of October 22, 1949, the steamship Santa Isabel arrived in Charleston harbor with a quantity of Peruvian cotton consigned to, and owned by, Grace and Weil. Under custom regulations, imported cotton must be subjected to a fumigation process before it can be shipped from the port of entry. The established practice in Charleston is to have all incoming cotton taken by barge or lighter directly from the ship on which it arrives to the fumigation plant of the South Carolina Ports Authority, located at North Charleston.

Lighterage had agreed with the owners of the Santa Isabel to transport cotton arriving on their vessels to the fumigation plant and upon being notified that cotton was arriving on the Santa Isabel, leased two lighters to move the cotton in question. One of these barges, known as One Lighter, was obtained from Constructors. The only tug owned by Lighterage was at this time engaged on other work under a priority agreement. Lighterage, therefore, engaged from White Stack the services of its tug, Fort Sumter.

During the morning of October 22, these two leased lighters were pulled alongside the Santa Isabel and stevedores proceeded to unload the cotton from the hold of that vessel onto the lighters. When this operation was completed, the loaded lighters were towed to the Seaboard Wharf, there to await the arrival of the Fort Sumter for the tow upstream.

It is undisputed that the One Lighter was properly loaded, for in accordance with good nautical practice, the cotton was so placed on the lighter as to make one end of the barge heavier than the other end. The obvious advantage in loading the lighter in this manner is that when she is pulled with the light end forward, the danger of her being swamped or taking water over the bow is minimized.

There is a great deal of conflict in the evidence as to how these loaded lighters were tied together. Witnesses for Grace, Weil and Constructors stated that the lighters were tied end to end, with the large barge to the North and with One Lighter, the smaller of the lighters, lashed with its heavier end to the stern of the large lighter. The crew of the Fort Sumter testified, however, that the light end of the One Lighter was secured to the stern of the large barge.

Around four P.M., the Fort Sumter left her berth and headed upstream with the tide to pick up the lighters. As she approached them, the Captain made a complete circle in order to come up to the barges against the tide.

Witnesses from the Fort Sumter testified that the large lighter was secured to the starboard side of the tug, and in this position the barges were "nudged" out into the river. It was at this time that the Captain determined that the lighters should be rearranged, since the heavy end of One Lighter was pointing forward. After proceeding upstream a very short distance to a place where the contemplated maneuver could be undertaken without danger of colliding with the shore installations, One Lighter was swung around the bow of the Fort Sumter and lashed to the port side of the tug by two hawsers. In this position, the light end of One Lighter was forward. One Reynolds, an employee of Lighterage, denied that any such maneuver was performed and he stated that he last observed the Fort Sumter moving upstream with both lighters lashed to her starboard side and with the heavier end of One Lighter pointing forward.

When the Fort Sumter and her tow had been underway a very short time, one of the crew noticed that One Lighter was rather low in the water and he notified the Captain. The Captain immediately ordered his engines slowed, and upon observing that One Lighter was sinking, he ordered the engines cut. By this time, the forward line running from the One Lighter to the tug had come loose as the bitt on the lighter to which the hawser was attached gave way. The lighter was veering away from the tug, and the crew of the Fort Sumter was paying out the one rope still holding the two vessels, in order to prevent a collision. Suddenly, the last hawser came loose when a second bitt was broken from the deck of the lighter. The One Lighter was now sinking rapidly at one end and some of the bales of cotton had already slipped from the deck into the water. The Captain radioed for help and the Cecelia, a sistership of the Fort Sumter, appeared with pumping apparatus.

By nightfall, the Fort Sumter with the aid of another tug, the Josephine, had succeeded in beaching One Lighter on the eastern shore of the river. Darkness prevented any further salvage but on the following morning, One Lighter was raised and towed to her destination. Most of the cargo had by this time been recovered but considerable damage had been done to the cotton because of exposure to salt water.

At the time of the sinking, the weather was clear and the water calm, nor was there any wash or wake from passing vessels.

The evidence presented at the trial shows that Constructors had purchased One Lighter in 1946. Some repairs had been made at that time but none subsequently. This lighter was eighty feet long with a thirty foot beam and was of ordinary wood construction. Each of the lighter's ends was cut on a slant so as to form overheads known as "rakes". The bottom was sheathed, and this sheathing ran up the sides some four feet. The deck, which was neither caulked nor water-proofed, was a flat wooden surface whose construction did not permit storage of cargo in the hold beneath.

On the day of the sinking, One Lighter had been inspected by an employee of Lighterage, who later testified that the barge appeared seaworthy to him. Upon examination after the sinking, a crack, some two to four inches wide and four feet long, was discovered between two transverse planks on one of the "rakes" just above where the sheathing up the side ended. Examination revealed that the wooden planks were soft and beginning to rot. Rot was also discovered on the deck around the area to which the bitts which had pulled up were anchored.

Upon the facts the District Court determined that the sinking was not due to the faulty handling of the Fort Sumter but rather to the unseaworthiness of One Lighter. The Court therefore entered judgment in personam against Lighterage and in rem against One Lighter. Constructors and White Stack were absolved of liability. The damages of Grace were assessed at $3,184.18 and those of Weil at $8,381.98. The Court, however, ordered that these damages be reduced by 10% due to the lack of diligence displayed by libellants in conducting salvage operations. From this decree, Grace, Weil, Constructors, as owner of One Lighter, and Lighterage have appealed to us.

The first question presented by this appeal is whether the cause of the sinking was the unseaworthiness of One Lighter, faulty handling of the lighter by the Fort Sumter, or a combination of these two causes.

As has already been pointed out, there...

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