Continental Ins. Co. v. Patton-Tully Transp. Co.

• Decision Date: 30 April 1954
• Docket Number: No. 14713.,14713.
• Citation: 212 F.2d 543,1954 AMC 889
• Parties: CONTINENTAL INS. CO. OF CITY OF NEW YORK v. PATTON-TULLY TRANSP. CO. et al. PATTON-TULLY TRANSP. CO. et al. v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.
• Court: U.S. Court of Appeals — Fifth Circuit

1954 AMC 889, 212 F.2d 543 (1954)

CONTINENTAL INS. CO. OF CITY OF NEW YORK v. PATTON-TULLY TRANSP. CO. et al.

PATTON-TULLY TRANSP. CO. et al. v. CONTINENTAL INS. CO. OF CITY OF NEW YORK.

No. 14713.

United States Court of Appeals, Fifth Circuit.

April 30, 1954.

Selim B. Lemle, New Orleans, La., James D. Thames, Jr., Vicksburg, Miss. (Lemle & Kelleher, New Orleans, La., of counsel), for appellant and cross-appellees.

M. E. Ward, R. L. Dent, Frank E. Everett, Jr. (of Brunini, Everett, Grantham & Quin), Vicksburg, Miss. (Dent, Ward & Martin, Vicksburg, Miss., of counsel), for appellees and cross-appellants.

Before BORAH and RUSSELL, Circuit Judges, and DAWKINS, District Judge.

BORAH, Circuit Judge.

This is an appeal by the Continental Insurance Company of the City of New York, the defendant in the District Court, and a cross-appeal by Patton-Tully Transportation Company and The Girod Company, plaintiffs below, in a civil action at law based on a policy of marine insurance.

Plaintiff Patton-Tully Company as owner, and Girod Company as charterer of two barges upon which the defendant had issued its River Hull policy of insurance for their account instituted this action against insurer to recover for the total loss of each barge the sum of $10,000, its agreed valuation, or an aggregate amount of $20,000. In their complaint it was alleged that one of the barges sank while being towed in the Mississippi River between Natchez, Mississippi, and Jackson Point, Mississippi, and that the other barge which was secured to the bank of the Mississippi River at Natchez broke loose from its moorings and was lost beyond recovery. In its answer, and on the trial of the cause, the insurer set up by way of defense that the barges were at all times and more specifically at the time of loss inherently unseaworthy; that neither barge was lost as a result of a peril insured against; and that as to each barge there had been a breach of the watchman's warranty. After a trial was had before the Court without a jury judgment was entered awarding plaintiffs the sum of $10,000 for the loss of the barge which sank in tow and denying them any recovery for the loss of the other barge. This appeal and cross-appeal followed.

The provisions of the policy on which defendant relies are the warranty of seaworthiness, the "perils" clause, and the watchman's warranty, which are as follows:

"Seaworthiness. Warranted by the assured that the vessel hereby insured shall be in a seaworthy condition at the time of attachment of this insurance and shall be maintained in a seaworthy condition at all times. * * *.

"Perils. It is the intent of this Company by this policy, subject to all its terms and conditions, to indemnify the assured for this company\'s proportion of all General Average Charges, Salvage Expenses and loss, damage or hurt to the vessel hereby insured caused by fire and the adventures and perils of the rivers and other waters that may be named herein, excepting always the following matters and things (which are excluded both as losses and causes of loss) and all claims for damage, expense or liability arising therefrom or caused thereby, viz:

* * * * * *

"2. Rottenness, inherent defects, and other unseaworthiness;

* * * * * *

"Watchmen. Warranted by the assured that the vessel hereby insured shall at all times have a competent watchman on board, except that when the vessel is laid up or moored at a regular landing she shall be in charge of a competent watchman."

The questions here, as in the District Court, are whether the evidence respecting the two lost barges shows that their loss was caused by unseaworthiness rather than a peril insured against and whether there was a breach of the watchman's warranty.

There was evidence to show that the barges — 155 feet long, 34 foot beam — were built in the year 1912. They were compartmented riveted steel transverse frame barges of a type not built since about 1920, and were of 180 net registered tons with a capacity of 500 short tons. These old vessels had been in charterer's possession for fifteen months and were in use as gravel barges at the time of their loss. They were not classified in the United States Army Engineers' publications as barges suitable for this work, but as barges for logging operations, and it appears that on several occasions prior to their loss a dragline bucket had knocked holes in the barges which had to be repaired to prevent the vessels from taking water. While the charterer's president, Girod, testified that such repairs were promptly made and that the barges were maintained in good condition, the witness also stated that he had never been inside the vessels; that it was customary for charterer's employees to check the barges for leaks at the unloading dock by merely observing whether or not they listed when loaded; and he conceded that it was very easy to make the barges leak. Phyfer, charterer's superintendent who was in charge of loading and unloading the barges and responsible for their mooring, testified that he had been inside the barges an unspecified number of times; had found numerous leaks where wasted rivets had pulled through the plating and from small holes that had been knocked in the barges.

There was further testimony on behalf of Phyfer that approximately three months prior to the loss of the barge which was being towed, barge No. 11, he discovered that this barge was leaking and required constant pumping. A visual inspection on his part which was restricted to one of the four main compartments revealed a hole in the bottom shell plating about the size of a quarter. It appears that an effort had been made at some prior and undetermined time to shut off this leak and the crude expedient adopted was the placement of a wooden board over the aperture which in turn was held in position by a perpendicular wooden upright which extended to the under side of the deck where it was wedged in place. When this inspection was made it was discovered that the wooden upright had completely rotted away and collapsed and as a consequence there was an influx of water equivalent to the flow from a one inch pipe. Despite the condition found charterers did not place the barge in dry dock but were content to repair the damage with a "paper patch" which consisted of tar paper, asphalt, sealing compound, over which was placed a one inch board which was secured by an upright timber which was driven in place. This second patch was in the vessel at the time of its loss.

In the condition described, barge No. 11 carrying a deck load of about 350 tons of gravel was on the morning of August 4, 1951, at 3:55 a. m. taken in tow by the towboat Betty. There was no evidence to show that the bilges were sounded or that any other inspection was made of the barge by anyone to determine its condition at and immediately prior to the time when it was taken in tow and no watchman was on board. When the tug and tow got under way barge No. 11 was lashed to the starboard side of another barge which the Betty was shoving. The crew of the tug consisted of one Captain Smoot and a deckhand. So far as the record shows neither of the crew members boarded the barge before or after getting under way. Captain Smoot of the tug Betty was the only witness to testify as to the place, time, manner, and cause of the sinking of barge No. 11. According to his story which he related at the trial the tug and tow proceeded downstream without incident up until the time that they met an ascending tug and tow in a bend in the river approximately five miles below Carthange Point. The ascending flotilla was then in the bend favoring the right bank and the Betty and her tow were running the point and holding as close thereto as possible without encountering the sand bar which protruded therefrom. Captain Smoot stated that he made every effort to keep away from the other towboat, which was of a type similar to Federal Barge Line vessels, but because of the narrowness of the channel in this bend of the river he was obliged to pass close to her. But as to the width of the river in this bend and as to how close he was to the ascending flotilla he does not say. According to his version he encountered waves that were "big" and "rough" but we find nothing in his testimony that would indicate that...