Consolidation Coal Co. v. United States Steel Corp., Civ. A. No. 72-315.
| Decision Date | 30 August 1973 |
| Docket Number | Civ. A. No. 72-315. |
| Citation | 364 F. Supp. 1071 |
| Parties | CONSOLIDATION COAL COMPANY, Plaintiff, v. UNITED STATES STEEL CORPORATION, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Daniel L. Stickler, Rose, Schmidt & Dixon, Pittsburgh, Pa., for plaintiff.
William S. Lerach, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendant.
The within case was tried non jury and this is written to explain why we have entered judgment for defendant in the claim of plaintiff Consolidation Coal Company v. United States Steel Corporation and judgment for United States Steel Corporation in the counterclaim of United States Steel Corporation v. Consolidation Coal Company.
On November 13, 1970, Consolidation Coal Company (herein Consol) owned and operated a landing on the Monongahela River at Maidsville, West Virginia, known as the Humphrey Landing where coal from Consol's mines was loaded into barges for transportation up river. On this date a barge (No. 683) owned by United States Steel (herein USS) was delivered by USS to the landing so that it could be loaded with coal for use at the mills of USS. The barge was placed in the empty fleet to await loading. On November 18, 1970, the barge was loaded with about 900 tons of coal and then moved by Consol to the area where the loaded fleet rested to await transportation. The barge then sank despite efforts to keep it afloat and Consol was forced to raise the barge in order to clear the area for the movement of other barges and the carrying on of its normal operations. The cost of the salvage operation was $7769.00 and depreciation of cargo was $2206.11, for which this suit was brought.
Consol alleged in its complaint that the barge was unseaworthy when placed in its hands for loading and that since the barge was unseaworthy, USS must pay Consol for the salvage operation and the damage to the cargo.
USS answered that the barge was seaworthy in all respects when delivered and the sinking was not due to any defect in the barge at the time it was delivered to Consol. Further, USS answered that the barge was in the exclusive possession and control of Consol and the sinking was due to the negligence of Consol because the barge was obviously damaged during or subsequent to the loading process or alternatively, that Consol failed to take proper action to prevent the sinking.
The barge was delivered to Consol at about 3:00 P.M. on November 13, 1970 and remained in the stream (with other empty barges) to await loading until about 3:15 A.M. on November 18, 1970, when it was moved into the loading area where about 900 tons of coal were dumped into it. The river was calm. It was then moved at about 8:30 A.M. to an area where loaded barges awaited transportation. At about 10:00 A.M. a riverman, Robert Sowell, noticed that the barge had developed a low freeboard. An inspection showed that the barge was taking on water rapidly and in spite of efforts to pump the water from the barge it sank at about 10:30 A.M. Upon being raised on November 26, 1970, a large hole was found (about 8"× 10") in the side of the barge at a location about 10 inches under water. The hole would have been somewhat further underwater when the barge was loaded.
Before the sinking Consol employees checked the barge visually from time to time and found no abnormal amount of water in the barge. From all appearances the barge was resting normally and visual inspections showed nothing unusual. Just before loading it was pumped dry and was found to be normal.
The barge had gone into use on February 4, 1949, and was repaired from time to time, the last general repairs having been made on October 14, 1970. The side plates were 3/8 of an inch thick when the barge was manufactured and although the barge had been used extensively there was no indication from any source that it was in disrepair. It was in average condition according to the report of Consol's expert. Consol's expert when asked whether the barge was unsuitable said he did not know whether it was unsuitable or not but he testified that he could not call it unseaworthy. USS called an expert who said the barge was seaworthy. We believe it was seaworthy.
As the barge was moved from under the tipple where it was loaded it was in tandem with another barge, the two being tied together with barge No. 683 being located up river (toward the tipple). A tug pulled the barges out from the loading area, they drifted down river for about 1000 feet toward the loaded fleet area at about 5 mph. When they reached what are known as the mooring cells, the motor tug pushed them against the cells...
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