AE Staley Mfg. Co. v. Porto Rico Lighterage Co.
| Decision Date | 14 April 1970 |
| Docket Number | Civ. A. No. 67-654. |
| Citation | 323 F. Supp. 27 |
| Parties | A. E. STALEY MANUFACTURING COMPANY v. PORTO RICO LIGHTERAGE COMPANY and the TUG CATANO, her engines, etc. |
| Court | U.S. District Court — Eastern District of Louisiana |
COPYRIGHT MATERIAL OMITTED
John W. Hamilton, H. Barton Williams, of Deutsch, Kerrigan & Stiles, New Orleans, La., for plaintiff.
James B. Kemp, Jr., Edward J. Brandao, of Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendants.
A. E. Staley Manufacturing Company, as shipper and/or owner of a consignment of soybean oil and charterer of the Barge PONCE on which a cargo of soybean oil was laden, instituted this action against the Tug CATANO, in rem, and her owner, The Puerto Rico Lighterage Company, to recover the value of 16½ percent of the cargo which was lost at sea, and the costs of refining another portion which was contaminated by water.
Only three witnesses testified at the trial, namely, Thomas J. Kenny, an employee of A. E. Saybolt & Company, Inc., an inspector of petroleum, who was present at two of the three discharge points of the PONCE in Puerto Rico in May, 1966; Captain Lowell H. Brentner, who was at the time mate aboard the CATANO; and Captain Arthur H. Terry, an expert in ocean towing. The balance of the testimony, by some thirteen witnesses, crucial to the Court's decision, was admitted by way of depositions, all of which were taken during August, September and October, 1969, over three years after the voyage in question.
While trying cases through the extentive use of depositions makes for brief trials, it deprives the Court of the opportunity personally to observe and, when necessary, interrogate the witnesses. Thus deprived, the Court's task of determining what facts are established by a preponderance of the credible evidence becomes more difficult.
A. E. Staley Manufacturing Company (hereinafter Staley) is a corporation organized and existing under and by virtue of the laws of the State of Illinois with its principal place of business in Decatur, Illinois.
The Puerto Rico Lighterage Company (hereinafter Lighterage) is a foreign corporation organized and existing under and by virtue of the laws of Puerto Rico with its principal place of business in San Juan, Puerto Rico, and is the owner and operator of the M/V CATANO, Official No. 298716, a twin screw, 1520 horsepower (two D-398 caterpillar diesel engines, rated at 760 horsepower each) oceangoing tug of all steel welded construction, having a curved stem model bow, three-level deckhouse, equipped with radio and radar and pilothouse controlled, measuring 89.4 feet in length, with a 28.1 foot beam and with an approximately 9.5 foot draft. On the voyage in question this tug had an eight man crew including the master.
The oceangoing Barges PONCE and SAN JUAN, Official Nos. 289,435 and 289,562, respectively, are identical and are constructed of all steel welded construction with raked bows and stern ends and measure 195 feet in length, 35 feet in breadth with a depth of 14 feet. Four transverse watertight bulkheads divide the PONCE into two rake compartments and three cargo tank pits with two cylindrical shaped tanks in each cargo tank pit. These tanks are vented (Green # 2).
The Barges PONCE and SAN JUAN are owned by Northern Barge Lines, Inc. (hereinafter Northern), who had entered into a towing agreement (Martin #D) with Lighterage, dated January 11, 1966, for a period of one year to tow the PONCE and SAN JUAN in service between the Gulf Coast of the United States and Puerto Rico.
Staley entered into a charter agreement with Northern (Albelo #1), dated April 16, 1966, for one trip to convey soybean oil from the Port of New Orleans to Mayaguez and Ponce, Puerto Rico.1 There were no contractual relationships between Staley and Lighterage (Martin deposition, p. 6).
On a prior voyage from Puerto Rico to New Orleans in February, 1966, in which the CATANO was towing the SAN JUAN and PONCE, the SAN JUAN took on some water in an after compartment. At that time, both barges were taken to Avondale Shipyard in New Orleans where the tanks and dogs were checked and some of the dogs renewed (Brentner #1, LaFontaine deposition, pp. 13, 51). No further difficulties were encountered on the return trip to Puerto Rico.
The cargo of soybean oil was transported from Havana, Illinois to New Orleans aboard the Barge CHEM 51. The soybean oil in compartments #2 and #3 of the CHEM 51 was designated to be loaded on the PONCE. The soybean oil in compartment #2 was of a higher quality because of a preservative which had been added (Thionville deposition, p. 76).
Thionville Surveying Company, Inc. and Thionville Laboratories, Inc. (hereinafter Thionville) were employed by Staley to survey and test the soybean oil loaded from the CHEM 51 into the PONCE through the piping system of American Liberty Tank Terminal (now known as International Tank Terminal) which is located on the West Bank of the Mississippi River in the Port of New Orleans (Thionville deposition, pp. 8, 68; Pettigrew deposition, p. 117).
Staley had inspected and performed tests in Illinois on the soybean oil loaded in compartments #2 and #3 on the CHEM 51. They, therefore, instructed Thionville to visually inspect the soybean oil in those compartments before unloading to determine if there was any impurity, water or cloudiness present rather than perform tests. The inspection proved negative (Thionville deposition, p. 96).
All the tanks of the PONCE were inspected by Thionville for cleanliness2 and the lines used to load the soybean oil were steam cleaned prior to loading and during the loading to prevent the higher quality soybean oil in compartment #2 of CHEM 51 which was loaded into tank #2 port and starboard of the PONCE from being mixed with the other soybean oil loaded from compartment #3 in the CHEM 51 (Thionville deposition, p. 76).
The following quantities of soybean oil consigned to the parties, with value as indicated below,3 were loaded into the designated tanks of the PONCE on April 20, 1966, as follows:
Amount
4 loaded
Consignee lbs. Price Value Tanks
Starkist 653,760 13.90 $ 90,872.64 #1 Port
Packing Co. #3 Starboard
Ibec Packing 240,000 13.90 33,360.00 #1 Starboard
Co
National 640,000 13.78 88,172.00 #2 Port and
Packing Co. Starboard
Delmonte, 400,000 13.70 54,800.00 #3 Starboard
Inc
_________ ___________
1,933,760 $267,204.64
The tanks of the PONCE were loaded in the following order: #3 port, #1 starboard, #3 starboard, #2 port, #2 starboard and #1 port (Thionville deposition, p. 6). There was sufficient space left in each tank after loading to provide for expansion caused by any agitation, temperature or normal expansion (Thionville deposition, pp. 40, 101; LaFontaine deposition, p. 31; Thionville Nos. 5, 6, 7 and 8).
Thionville's "Certificate of Analysis" indicates eight tests were performed on the soybean oil loaded into tanks #2 port and starboard (which soybean oil contained an added preservative) and seven tests on the soybean oil in the remaining tanks. The eighth test, performed only on tanks #2 port and starboard, was a "moisture and volatile" test. All the tests indicated that the oil met required standards (Thionville Nos. 5, 6, 7 and 8). Although members of the crew of the tug were present during loading and discharge, none of them helped load or unload the PONCE (Crespo deposition, p. 4; Salas deposition, p. 4; Deal deposition, p. 8).
After completion of the loading, the hatches were closed by the terminal. Several crew members of the CATANO under the supervision of the mate, Brentner, checked and tightened the hatches.5 Thionville representatives then sealed (Thionville #1) each hatch cover (Pettigrew deposition, pp. 113, 118). Thereafter, George Green, Jr., a marine surveyor for the United States Salvage Association, Inc., together with Mr. Carl Schaefer, who represented Northern, Captain LaFontaine and the mate, Brentner, both of the CATANO, made an inspection tour of the barges and the tug and discussed the method of tow (Green deposition, pp. 13, 14). Captain LaFontaine and George Green, Jr. inspected each hatch cover to make certain it was secure (Green deposition, p. 16; LaFontaine deposition, p. 31). George Green, Jr. approved the barges, the tug and the method of tow (Brentner #15) for the voyage from New Orleans to Puerto Rico (Green # 1). He also approved the draft of the PONCE which was recorded by the mate in the logs of the CATANO as being: fwd port 5' 05?, aft port 8' 03?, fwd starboard 5' 10? and aft starboard 8' 05? (Brentner #3).
Prior to departure of the tug and its tow, Green checked with the U. S. Weather Bureau, which advised that normal weather conditions prevailed. At 1945 hours on April 20, 1966, the tow began the voyage down the Mississippi River towards the Gulf of Mexico with a commercial pilot aboard. Upon arrival at Pilottown, Captain LaFontaine contacted Green and was advised that the weather prediction was favorable and that the tow could proceed (Green deposition pp. 18, 19).
The barges were put astern as the tug approached the River's Southwest Pass. As the tow entered the Gulf of Mexico the barges were in tandem formation with the Barge SAN JUAN 1200 feet behind the CATANO and the PONCE 800 feet behind the Barge SAN JUAN (LaFontaine deposition, p. 20; Brentner #5).
On the voyage the CATANO encountered rough, moderate rough, heavy swell, high swell, moderate and moderate high seas. At various times, depending upon the condition of the sea, the engine RPM's varied from 800 to 1200...
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