American Cement Corp. v. Healy Tibbitts Construction Co.

• Decision Date: 07 February 1966
• Docket Number: No. 64-1260.,64-1260.
• Citation: 249 F. Supp. 891
• Parties: AMERICAN CEMENT CORPORATION, a corporation, Libelant, v. HEALY TIBBITTS CONSTRUCTION COMPANY, a corporation, Respondent. HEALY TIBBITTS CONSTRUCTION COMPANY, a corporation, Petitioner, v. GARVIN TOWBOAT AND BARGE COMPANY, a corporation, and American Cement Corporation, a corporation, Third-Party Respondents.
• Court: U.S. District Court — Southern District of California

249 F. Supp. 891

AMERICAN CEMENT CORPORATION, a corporation, Libelant, v. HEALY TIBBITTS CONSTRUCTION COMPANY, a corporation, Respondent.

HEALY TIBBITTS CONSTRUCTION COMPANY, a corporation, Petitioner, v. GARVIN TOWBOAT AND BARGE COMPANY, a corporation, and American Cement Corporation, a corporation, Third-Party Respondents.

No. 64-1260.

United States District Court S. D. California, Central Division.

February 7, 1966.

Lillick, Geary, McHose & Roethke, Lawrence D. Bradley, Jr., Los Angeles, Cal., for libelant and third-party respondent American Cement Corp.

Overton, Lyman & Prince, Dan Brennan and Jerome O. Hughey, Los Angeles, Cal., for respondent and petitioner Healy Tibbitts Const. Co.

McCutchen, Black, Verleger & Shea, Howard J. Privett and James W. Carpenter, Los Angeles, Cal., for third-party respondent Garvin Towboat & Barge Co. THURMOND CLARKE, District Judge.

This action arises out of loss of part of a cargo of rock from a barge under tow, and consequent damage to the vessel.

Libelant and third-party respondent American Cement Corporation (referred to herein as "American") was vendor of the rock and owner of the barge. Respondent and petitioner Healy Tibbitts Construction Company ("Healy Tibbitts") was purchaser of the rock. Third-party respondent Garvin Towboat and Barge Company ("Garvin") was owner of the tugboat.

Healy Tibbitts entered into a contract with the Department of Fish and Game of the State of California for construction of artificial fish reefs off Imperial Beach Pier on the Southern California coast. The firm then contracted with American for purchase of 3600 tons of two- to three-ton rock from American's quarry on Catalina Island. American agreed to furnish and load two barges to transport the rock. Delivery was to be "F.O.B. barges Catalina."

Graham Barge No. 41, the one this action concerns, is a wooden vessel with a steel deck. Employees of American loaded it with 1966 tons of rock at the quarry. Under a contract entered into by Healy Tibbitts and Garvin, the tug GARVIN then took the barge in tow and proceeded toward Imperial Beach.

As tug and tow neared the job site and the towboat began to shorten its line, the barge listed sharply. Despite efforts to right the vessel, it listed still farther and spilled most of its cargo into the sea. The barge itself was heavily damaged.

By the present action, American seeks to recover damages for the cost of repair to the barge, for a marine surveyor's services, and for loss of use of the vessel. It seeks also to recover sums alleged to be due from Healy Tibbitts for materials sold and barges chartered.

Healy Tibbitts seeks to recover from Garvin for indemnity for any liability the former may have incurred for damage to the barge, including surveyor's fee and loss of use. It has cross-libeled Garvin and American for loss of the rock cargo owned by Healy Tibbitts at the time of the casualty.

American seeks indemnity from Garvin for any liability of American to Healy Tibbitts, and alleges direct liability of Garvin to American for damage to the barge, including surveyor's fee and loss of use.

Healy Tibbitts argues loss of the cargo resulted from one or more of three factors: unseaworthiness of the barge, improper loading by American, and negligence of Garvin.

American maintains the tug was seaworthy, and the casualty resulted from inevitable accident. Garvin denies any unseaworthiness of the tug and any negligence on its part.

The first problem confronting the court is the nature of the agreement between American and Healy Tibbitts for use of the barge. Was this a demise or bare-boat charter as American urges, or a time charter?

Barge No. 41 had no motive power of its own; after loading the vessel, employees of American took no further part in its voyage. Completion of the trip necessarily depended upon outside assistance, furnished in this instance by a towing company contracted by the charterer.

Under these facts the court finds the arrangement was a bare-boat charter by which Healy Tibbitts became the owner pro hac vice.

This relationship does not render Healy Tibbitts an insurer. It does impose liability for damage unless the charterer can show the damage resulted despite due care on its part and on the part of the tugboat company which the charterer engaged. The C. W. Crane, 155 F.2d 940 (2d Cir. 1946).

Where unseaworthiness has been demonstrated, the court may presume it was the proximate cause of an otherwise unexplained casualty; but the fact of a casualty alone does not connote negligence nor unseaworthiness. Walston v. Lambertsen, 349 F.2d 660 (9th Cir. 1965), cert. denied January 17, 1966, 86 S.Ct. 553.

There is evidence the barge was in less than mint condition at the outset of the voyage: a hopper had been damaged, there was some degree of dry rot, the deck and the bulwarks were in need of repair. Barge No. 41 was a working vessel, employed in the heavy and untidy business of carrying rock. Wear and tear were inevitable.

The vessel had two or three inches of water in the bilge at the beginning of the voyage. This amount of leakage, particularly in a wooden vessel, does not render it unseaworthy. New England Foundation Co. v. Rugo Const. Co., 60 F.Supp. 143 (D.Mass.1945), aff'd 172 F.2d 964 (1st Cir. 1949). After the casualty, there were two feet of water in the bilge. Presence of the larger quantity of water is ascribed to the accident itself.

American loaded the barge at its quarry. Weight of the load was within capacity of the vessel. The load line was above water,...