Crain Brothers, Inc. v. Wieman and Ward Company
| Decision Date | 08 June 1955 |
| Docket Number | 11546.,11545,11535,No. 11534,11534 |
| Citation | 223 F.2d 256 |
| Parties | CRAIN BROTHERS, Inc., a Corporation, Etc., Libellant, Appellant, v. WIEMAN and WARD COMPANY, a Corporation, Respondent (Union Barge Line Corporation, a Corporation, Third Party Respondent). WIEMAN and WARD COMPANY, a Corporation, Libellant, v. UNION BARGE LINE CORPORATION, a Corporation, Respondent (Crain Brothers, Inc., a Corporation, Third Party Respondent, Appellant). CRAIN BROTHERS, Inc., Libellant, v. WIEMAN and WARD COMPANY, Respondent, (Union Barge Line Corporation, Third Party Respondent, Appellant). WIEMAN and WARD COMPANY, Libellant, v. UNION BARGE LINE CORPORATION, Respondent, Appellant, (Crain Brothers, Inc., Third Party Respondent). |
| Court | U.S. Court of Appeals — Third Circuit |
Harland I. Casteel, Pittsburgh, Pa., (Campbell, Houck & Thomas, Pittsburgh, Pa., on the brief), for Crain Brothers, Inc.
John R. Bredin, Pittsburgh, Pa. (Dalzell, Pringle, Bredin & Martin, Pittsburgh, on the brief), for Union Barge Line Corp.
J. Wray Connolly, Ira R. Hill, Pittsburgh, Pa., (Reed, Smith, Shaw & McClay, and W. S. Moorhead, Jr., Wm. F. Swanson, Jr., Moorhead & Knox, Pittsburgh, Pa., on the brief), for Wieman & Ward Co.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
In August 1950, Crain Brothers, Inc., was the owner of two steel hopper barges which the district court found it leased to Union Barge Line Corporation. The court further found that Union agreed to and did transport coal by means of those barges for the Wieman and Ward Company, a wholesale coal dealer, from Huntington, West Virginia. En route to Pittsburgh, Pennsylvania the barges sank in the Ohio River, the first (No. 330) on August 17, 1950 and the second (No. 325) on August 18, 1950.
In appeal Nos. 11,535 and 11,546, Wieman and Ward brought suit against the Union Barge Line for the value of the coal, alleging negligence. Union Barge Line joined Crain Brothers, the owner of the barges, as third party respondent, on the theory that the barges were unseaworthy. The district court found that the barges were unseaworthy and that Union was negligent in their operation, and held that the loss of the coal cargoes was due to the two factors combined. Judgment was entered "in favor of Wieman and Ward Co., libellant, and against Union Barge Line Corp., respondent, and Crain Brothers, third party respondent, in the amount of $3,609.90, together with costs." Both Union and Crain have appealed.
That Crain furnished Union with unseaworthy barges is easily demonstrated by the evidence. The barges had been in constant use ever since 1929 when they were built; the normal life of such barges is twenty years; new bottoms had never been put on them; complaints had previously been made about the leaky condition of one of the barges; and both boats began to leak very soon after they started upriver on their ill-fated voyage.
And there is considerable evidence of Union's negligence in the operation of the barges. As to No. 325, which sank shortly after leaving Huntington, there was testimony that it left the Huntington dock dry, that the watchman on the landing reported to the watchman on the boat that the barge had not been leaking and that at the time of leaving the weather was foggy. Moving up the river No. 325 was the first barge in the starboard tow. There is testimony that in the first six miles out of Huntington there is some rocky shore, "quite a lot of boulders", on the right hand side proceeding towards Pittsburgh. Captain Eberhardt, the Crain expert, testified that his later examination of the damaged barge revealed a twelve to fourteen foot hole in the starboard side of the barge at the knuckle "in one place it was big, it was ruptured and it stoved up there, like it went in against the rocks some place."
With reference to barge No. 330 which sank about thirty-six miles below Pittsburgh near Lock No. 7 there is testimony that the crew of Union's tug boat discovered that the barge was taking water when approximately fifty miles from Huntington, that despite the installation of pumps the leakage continued to grow, that Union elected to tow the barge up the river rather than tie up, and that it did so for 220 miles past many docks and landings until the barge...
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