Delaware Dredging Co. v. Graham

• Decision Date: 02 July 1930
• Docket Number: No. 81.,81.
• Citation: 43 F.2d 852
• Parties: DELAWARE DREDGING CO. v. GRAHAM. THE J. D. GRAHAM.
• Court: U.S. District Court — Western District of Pennsylvania

43 F.2d 852 (1930)

DELAWARE DREDGING CO. v. GRAHAM THE J. D. GRAHAM.

No. 81.

District Court, E. D. Pennsylvania.

July 2, 1930.

Howard M. Long, of Philadelphia, Pa., for libelant.

Lewis, Adler & Laws, of Philadelphia, Pa., for respondent.

KIRKPATRICK, District Judge.

On the afternoon of June 19, 1929, the tug J. D. Graham took the libelant's scow No. 3 and launch No. 6 in tow, tandem, in the order named, at Howell's Cove near Gloucester and proceeded with them down the Delaware river bound for Wilmington. There were no employees of the libelant upon any of the vessels, and the scow and launch passed into the exclusive custody and control of the respondent at the beginning of the journey. Before delivery to the tug, the scow had been loaded by the libelant's employees with some 4,000 feet of dredging pipe, weighing about 30 tons. She was a deck scow 72 feet long, 24 foot beam, and 6½ feet in depth, and the pipe was piled upon her deck, lengthwise, in sections. As loaded, she drew approximately 3 feet of water, which gave her a freeboard of from 3 to 3 1/3 feet. She was at least ten years old. On the morning of the day in question she had been pumped out.

The day was clear with little or no wind and an ebb tide. The vessels proceeded without incident down the river at the rate of approximately five miles an hour until they reached a point just north of Marcus Hook and some twelve miles below the point from which they had started. There the scow suddenly sank, pulling the launch down with her.

Four witnesses saw her go down. Graham, the master of the tug, heard the pipe rattle, looked, and saw it rolling on the deck toward the Jersey shore, and then saw the scow "nose-diving down to the bottom." Emory, cook on the tug, heard the pipe rattle and looked back, saw the scow list and slide "right under the water." Whiteside, deck hand on the tug, felt a swell from a passing steamer, saw that the tug was rocking and the pipes beginning to roll. He testified that the scow listed toward the Pennsylvania shore, recovered partially, spun a little, and "came up in the front and right down at the back." In a prior statement he had said that the scow went down by the "forward port corner," and when this was called to his attention, was unable to say which account was correct. Tegland, who had tied up to the stern of the launch with two small boats for a free tow down the river and whose line to the launch had parted just before the sinking, saw the pipe roll into the river and about half a minute later saw the scow go down.

The testimony of these eyewitnesses leaves the cause of the sinking unexplained. It is clear that there was no collision with anything in the river at any time during the trip down. Tegland's testimony that he thought "something had struck her" because the boat was jerking on his line is of little value, as he was lying on his back reading a letter and the jerking might have come from the rolling of the scow, which all agree preceded the sinking. The suggestion that the tug was going too fast and "towed the scow under" is without any testimony whatever to support it.

Possibilities which might have accounted for the sinking are:

(a) Displacement waves or swells from a passing vessel or vessels. I find as a fact, basing the finding upon the testimony of Whiteside, that the vessels in the tow encountered some swell immediately before the sinking. I find further that this swell was not of an unusual or extraordinary kind nor sufficient to have caused the sinking of the scow had she been seaworthy and properly loaded. The contention of the libelant is that the tugmaster was negligent, first, in failing to keep out of the main channel in order to avoid such swells, and, second, in failing to slacken speed or stop at the approach of a vessel. As to the first contention I do not think that tugs with tows are bound to keep out of the ship channel of the Delaware river between Philadelphia and Wilmington, under ordinary conditions of navigation, such as obtained on the day of this sinking. As to the second, while the evidence is conflicting, the weight of it is to the effect that the vessel causing the swell overtook the tug and her tow from behind. In such case, unless it is evident that the approaching vessel will pass very close, or is making an exceptional disturbance in the water (and neither was the case here), there is no duty upon the tugmaster to slacken speed or stop. If the swell of the passing vessel contributed to the accident, it could have done so only in co-operation with unseaworthiness or improper loading. However, I make no finding as to this, merely holding that the fact that the scow did encounter some of the swell or displacement waves of a passing vessel does not involve any fault of navigation on the part of the tugmaster.

(b) Unseaworthiness. There was much conflicting evidence taken upon this point. It might be possible to reach the conclusion that the scow was unseaworthy either from the testimony as to her condition after she was raised or by the process of eliminating all other possible causes for the sinking. In view, however, of my conclusion as to the burden of proof in this case (which will be fully discussed), it is not necessary to make any finding upon this point, and I make none.

(c) Improper loading, co-operating with the swell or displacement waves from passing vessels. What has just been said in regard to the unseaworthiness of the scow applies to this point also, and I make no finding here.

The fact situation thus presented may be summarized as follows: The libelant has shown that the scow was taken into the exclusive custody and control of the respondent and that while in such custody and control she sank. The circumstances of her sinking have been fully presented to the court by testimony. They do not disclose any fault or negligence on the part of the respondent.

It has been held that the owner of a tug to whom a vessel has been delivered under the ordinary contract of towage is a bailee for hire. Doherty v. Penna. R. Co. (C. C. A.) 269 F. 959; Bust v. Cornell Steam-Boat Co. (C. C.) 24 F. 188. Whether this view need be adopted, or whether the bailment arising under such contract is sui generis, the law in the federal courts, as to the responsibility of the tugowner for loss or damage to the tow and as to the burden of proof in causes arising from such loss or damage, is well settled. The measure of the tugowner's duty to the tow is ordinary care and diligence. He is not a common carrier nor an insurer, but is liable only for loss caused by his negligence. In a cause of loss or damage the libelant has a prima facie case if he shows that such loss or damage occurred while the subject of the bailment was in the exclusive custody and control of the bailee. This showing, however, merely imposes upon the bailee the duty of going forward with the evidence. It does not, properly speaking, constitute evidence of negligence. When the bailee accepts this duty and shows how the loss occurred, the force and effect of the prima facie case disappears. Then, unless it affirmatively appears from the evidence so produced, that the loss was caused by the negligence of the bailee, the burden reverts to the libelant (or, perhaps more properly, the burden originally upon him is revived), and it becomes incumbent upon him to produce evidence of negligence on the part of the bailee; otherwise his case fails. The result will be the same if, as in the instant case, the libelant does not choose to rest his case upon proof of delivery and failure to return, but elects to adduce evidence showing the circumstances under which the loss occurred.

In The Raymond M. White (D. C. N. Y.) 290 F. 454, 458, a case of an unexplained sinking of the barge under charter, the court said: "I am unable on the evidence to say that the barge was unseaworthy when delivered to the respondent, or to definitely fix the cause of the sinking; but the respondent is not obliged to show how the sinking happened. It is sufficient that it has shown that the sinking was not caused by its own negligence, and, such showing having been made, the burden is on the libelant to show the respondent's negligence." In Hildebrandt v....