O'Donnell Transportation Co. v. M/V MARYLAND TRADER

• Citation: 228 F. Supp. 903
• Parties: O'DONNELL TRANSPORTATION CO., Inc., Libelant, v. M/V MARYLAND TRADER, American Trading and Production Corporation, Claimant. W. J. TOWNSEND, d/b/a Townsend Transportation Company, Libelant, v. M/V MARYLAND TRADER, American Trading and Production Corporation, Claimant.
• Decision Date: 26 November 1963
• Court: U.S. District Court — Southern District of New York

228 F. Supp. 903

O'DONNELL TRANSPORTATION CO., Inc., Libelant, v. M/V MARYLAND TRADER, American Trading and Production Corporation, Claimant.

W. J. TOWNSEND, d/b/a Townsend Transportation Company, Libelant, v. M/V MARYLAND TRADER, American Trading and Production Corporation, Claimant.

United States District Court S. D. New York.

November 26, 1963.

Purdy, Lamb & Catoggio, New York City, for libelant O'Donnell Transp. Co., Inc.; Edmund F. Lamb, New York City, of counsel.

Foley & Martin, New York City, for libelant W. J. Townsend; John H. Hanrahan, New York City, of counsel.

Burlingham, Underwood, Barron, Wright & White, New York City, for M/V Maryland Trader; Eugene Underwood, Joseph C. Smith, New York City, of counsel.

FREDERICK van PELT BRYAN, District Judge.

These are two suits in rem to recover for swell damage to vessels moored in libelants' yards at Tottenville, Staten Island, and to installations at the yards, allegedly caused by the claimant M/V Maryland Trader, a T-2 tanker, on December 21, 1959. The suits were tried together before me.

Libelant O'Donnell Transportation Company, Inc. (O'Donnell) operated a boat yard at Tottenville where a tug, barges and other craft were tied up. Libelant W. J. Townsend doing business as Townsend Transportation Company (Townsend) operated an adjacent yard at which barges, miscellaneous vessels and a floating drydock were moored.

On December 21, 1959 the Trader was proceeding inbound fully loaded up the Arthur Kill to Carteret, New Jersey, north of libelant's yards, where she was to discharge her cargo. Both libelants claim that when the Trader passed their yards about 10 a. m. she was moving at excessive speed, very close in and caused unusually heavy swells and suction which severely damaged vessels, docks, bulkheads and moorings.

The Trader, on the other hand, asserts that she was proceeding up mid-channel with due care and caution at normal and proper speed and that her mild and quite usual swell could not have caused and did not cause the damage complained of. She further contends that if there was an unusual or excessive swell on the morning in question it was not caused by her but by another vessel, the S.S. Esso Gettysburg, a larger tanker which was proceeding outbound down Arthur Kill in ballast about the same time. The Trader also contends that, in any event, the vessels which libelants claim to have been damaged were in bad condition and unseaworthy and were not properly moored and that the docks and appurtenances in the yards were also old and rotten. It asserts that the vessels, moorings, docks and appurtenances were unable to withstand the normal and usual swells which were reasonably to be anticipated and that any damage to them was not due to any fault of the Trader.

The pertinent evidence adduced at the trial on the question of liability may be summarized as follows:

Inbound from Raritan Bay, Arthur Kill which separates Staten Island from the New Jersey mainland, runs roughly from southwest to northeast passing from Ward Point Bend (west) into Outerbridge Reach until it reaches Red Buoy No. 2. At that point it bends to the northward and runs in that direction, passing under the cantilever bridge at Outerbridge Crossing. Carteret, New Jersey, to which the Trader was bound to discharge her cargo, lies some distance to the north of Outerbridge Crossing.

The libelants' yards are situated on the Staten Island or eastern shore of the Kill, below Outerbridge Crossing and south of Red Buoy No. 2.

Proceeding inbound up-channel, vessels reach the O'Donnell yard some 900 yards south of Red Buoy No. 2. Adjacent to the O'Donnell yard on the northeast is a Moran Towboat Dock. Next comes the Townsend yard some 400 yards south of Red Buoy No. 2. Both yards lie on the southeasterly shore of a bay or indentation to the eastward of the channel at the mouth of Mill Creek.

Arthur Kill is a heavily travelled waterway and as many as six to eight large tankers inbound or outbound pass the libelants' yards daily. The channel of the Kill off libelants' yards is 600 feet wide and 35 feet deep at mean low water.

The outer limit of the O'Donnell yard is approximately 200 feet to the eastward of the easterly line of the channel and as the yard runs to the shoreline the water shoals to six to nine feet at low tide. On the morning in question there were a number of barges and a tug tied up there, some directly to piers or bulkheads and others to one another.

The outer limits of the Townsend yards to the northeast are farther removed from the easterly line of the channel and the main dock in the yard extends out about 600 feet from bulkheads at the shoreline. There is also shoaling as the shore is approached. A drydock some 230 feet long and 80 to 85 feet in width was tied up at the shore end of the main Townsend pier. There were also tugs, barges and converted L.S.T.'s tied up in the yard.

At the time of the occurrence complained of, the tide was two-thirds to three-quarters flood moving north between 1.1 and 1.4 knots. There were no weather conditions of significance.

The Maryland Trader is a jumboized turbo-electric single screw T-2 tanker, 572 feet long, 75 feet beam, with a deadweight tonnage of 19,800. She had a maximum of 6,800 horsepower and was capable of developing full speed under fair weather conditions of 15 knots. Her displacement tonnage loaded, as she was at the time, was 26,160 with a draft fully laden of 30 feet.

Two Townsend employees testified at the trial as to the alleged cause of damage and the deposition of one O'Donnell employee was read into the record.

Luttrell, one of the Townsend employees, testified that "around 10 o'clock" on the morning in question while he was drawing water in the yard, "all at once everything kept flowing in the slip and coming out, and then, all at once the water kept going right out the slip and everything went with it." He said that the cables which tied the 200 foot drydock to the shore and of the pier were broken both fore and aft, the drydock was thrown against the bulkhead at the shoreline, the apron on the drydock was broken, the pier and bulkhead were damaged and lines were parted on other vessels. Luttrell said that he then looked down the dock and saw the Trader going by on the easterly edge of the channel closer than vessels generally did and "faster than anyone I ever seen going up there." He also noticed the Esso Gettysburg on the other side of the channel outbound "just creeping down the other shore." The vessels had already passed one another and the Esso was below the Trader. He also noticed a Moran tug following the Trader which joined her just below Outerbridge Crossing Bridge.

The second Townsend employee, Caison, testified that he was in the galley of the tug Syosset tied up at one of the Townsend docks on that morning when he felt the lines on that tug and on the tug tied up alongside it surge and the two tugs ran up and down though they were undamaged. When he went to the stern of the Syosset he saw the Trader "going by close to the dock." However, when asked to indicate the Trader's position he placed it at Red Buoy No. 2, some 400 yards to the north. He said he did not see the Esso Gettysburg and did not notice whether there were any vessels in the vicinity on the other side of the Kill.

The deposition of Monsen, the O'Donnell employee, was taken while he was in the hospital. Monsen said that on the morning of December 21 there was a "smack-up" at the O'Donnell yard and that barges were banging about. He saw a tanker "down toward the bridge" (plainly Outerbridge Crossing) beyond the Townsend yard. Though in no position to judge, he indicated that she was going "fast" and said he identified her as the Trader by the name on her stern. He later noticed that the lines on some of the vessels in the yard were broken and cleats pulled out. Monsen did not fix the time of this occurrence, nor did he remember whether any other vessel was outbound at the time.

The movements, speed and timing of the Trader on her passage up Arthur Kill on that morning are fixed with reasonable accuracy by the witnesses who testified in her behalf, as corroborated by the decklog, the deck bell book and the engine bell book. The witnesses included her master, Captain Smith, her chief officer Pettijohn, her third mate Bullard, and her third assistant engineer Coran, as well as her docking pilot Captain Barnes, and her Sandy Hook pilot Captain Breitenfeld.

The Trader arrived at Ambrose Light Vessel inbound at 0642 on the morning of December 21, 1959, ahead of schedule. At 0752 she started up Ambrose Channel with Captain Breitenfeld, her Sandy Hook pilot, aboard. She was to meet a tug, drop off her Sandy Hook pilot and take on a docking pilot in Ward Point Bend off Hylan Boulevard on Staten Island about 10 o'clock. She arrived off Hylan Boulevard at 0949 and had been proceeding past the Perth Amboy anchorage for several minutes at dead slow, aided by an occasional "kick-ahead" to half speed which was required to maintain steerageway. A Moran tug met her there, took off her Sandy Hook Pilot, Captain Breitenfeld, and put aboard her docking pilot, Captain Barnes. She continued at dead slow until 0951 or 0952 when her engines were put slow ahead. At 0955 she was abeam Perth Amboy Ferry landing and continued up midchannel at slow ahead.

She sighted the Esso Gettysburg to the north outbound and, at 1000½, she blew one blast for a port to port passage and put her rudder 5° starboard. She was still moving at slow ahead and was approximately in mid-channel. At 1003 she was about 200' south of Red Buoy No. 2, and about to move into the bend in Outerbridge Reach. At that point, already well past libelants' yards, she was still at slow ahead and put her engines to half ahead. Still at that speed she passed the Esso Gettysburg at 1005 about two ship lengths below Outerbridge Crossing Bridge.

The distance from abeam Perth Amboy...