Frederick Snare Corp. v. Moran Towing & Transp. Co.

• Citation: 195 F. Supp. 639
• Parties: FREDERICK SNARE CORPORATION, as owner of THE Derrick Barge F.S.C. NO. 110, Libelant, v. MORAN TOWING & TRANSPORTATION CO., Inc., THE Tug JULIA C. MORAN, her engines, etc., Tug Julia C. Moran, Corp., Claimant-Respondents. MORAN TOWING & TRANSPORTATION CO., Inc., Libelant, v. FREDERICK SNARE CORPORATION, Respondent.
• Decision Date: 23 June 1961
• Court: U.S. District Court — Southern District of New York

195 F. Supp. 639

FREDERICK SNARE CORPORATION, as owner of THE Derrick Barge F.S.C. NO. 110, Libelant, v. MORAN TOWING & TRANSPORTATION CO., Inc., THE Tug JULIA C. MORAN, her engines, etc., Tug Julia C. Moran, Corp., Claimant-Respondents.

MORAN TOWING & TRANSPORTATION CO., Inc., Libelant, v. FREDERICK SNARE CORPORATION, Respondent.

United States District Court S. D. New York.

June 23, 1961.

Foley & Martin, New York City (by John Hanrahan, Jr., and Edward Ryan, New York City), for libelant.

Burlingham, Hupper & Kennedy, New York City (by Robert Feltner and Eugene Underwood, New York City), for respondent.

EDELSTEIN, District Judge.

These cross suits, consolidated for trial, arose out of the sinking of the derrick barge F.S.C. No. 110, on September 8, 1956, while in tow of the Tug Julia C. Moran. Snare sues for loss of the barge and Moran cross-libels for the loss of the Julia's towing gear.¹ The facts describing the occurrence are not in dispute. The cause of the sinking, however, is the subject of vigorous disagreement.

Frederick Snare Corporation was and still is a corporation organized and existing under and by virtue of the laws of the State of New York and at the times referred to herein was the owner of the derrick barge F.S.C. No. 110. Moran Towing and Transportation Co., Inc., was and still is a corporation organized and exisitng under and by virtue of the laws of the State of New York, and at the times referred to herein was the operator of the Tug Julia C. Moran, and the owner of the hawsers, shackles and other towing gear and equipment of the Tug Julia C. Moran. Prior to September 4, 1956, Snare entered into an agreement with Moran under the terms of which Moran agreed to tow the 110 from Delaware City, Delaware, to New York City. Pursuant to its contract Moran supplied the Tug Julia C. Moran for the towage.

Derrick Barge F.S.C. No. 110 was originally a steel carfloat of riveted construction. In 1950 the carfloat was acquired by Snare, which removed the center section and mounted a revolving crane on the deck. As converted, the 110 was 84 ft. long, 38 ft. wide, and about 9½ ft. deep, and weighed a couple of hundred tons. She had four non-water-tight transverse bulkheads and no longitudinal bulkheads. In October 1955 the 110 was taken to Delaware City where Snare was engaged in building three Tpiers. While there the barge was aground for two days driving piles. Although Snare's construction superintendent was aware that the grounding had put an unusual strain on the hull only a visual inspection was made after the barge was refloated. No hydrostatic or hose test was made to determine whether or not the barge's watertightness above the waterline had been affected. Snare admitted that it did not drydock the 110 or do any repair or maintenance work on it prior to September 4, 1956, while the 110 was at Delaware City.

In September 1956 the job at Delaware City having been completed, Snare proposed to have the 110 towed to New York. Snare applied to the Philadelphia office of the United States Coast Guard for a Certificate of Inspection as a seagoing barge. Commander Madison, the Coast Guard Inspector, examined the barge on September 4, 1956, and found her quite a bit below the minimum standards for a seagoing barge. No Certificate of Inspection was issued to the 110. However, Commander Madison made certain recommendations for work to be done on the 110, which would allow him to issue a Permit to Proceed for Repairs from Delaware City to New York.

In the interval between Commander Madison's inspection of September 4th and his return on September 7th, Snare did the recommended work on the 110 and also prepared her for the tow. Various equipment was loaded on the deck of the 110, including a six ton boom, an 800 lb. shanty, anchors and buoys. Snare also tack-welded bars across the manhole covers and installed red and green sidelights on the crane house, about 20 ft. above the deck, and about 15 ft. apart.

On September 6, 1956, the 110 was surveyed by James Wilson, employed by Atlantic Mutual Insurance Co. as a marine surveyor.

During the interval between Commander Madison's first and second inspections and prior to the arrival of the Julia on September 7th, Snare shifted the 110 from the north side of the pier to the end of the pier. The Julia arrived in Delaware City on the morning of September 7th. By this time the bars had been welded over the hatch covers on the 110 and it was not possible to examine the interior. The exterior of the hull immediately below the deck was covered by fenders. Also the equipment on deck was fastened down and could not be moved. The captain and mate of the Julia examined so much of the deck and exterior of the hull as was visible above the waterline and saw nothing in the 110's outward appearance to indicate that she could not make the tow successfully in good weather. With the aid of about ten Snare workmen a wire bridle was rigged on the bow of the 110 and a chain bridle on its stern.

The F.S.C. 112, a longer and wider barge with a greater freeboard, was also to be towed along with the 110. A chain bridle was rigged on the bow of the 112. Snare's underwriter's surveyor recommended to the Julia's captain that the 110 be towed ahead of the 112. This was the only advice or information given to the Julia's crew. They were not informed of any defect or weaknesses of either barge or advised that any special precautions would be necessary in towing her. Prior to the departure of the tow on September 7th, Commander Madison again viewed the 110 and issued a Permit to Proceed for Repairs from Delaware City to New York City.

The Julia left Delaware City at 3:00 p. m. on September 7, 1956, with the 110 facing bow first alongside the tug, and the 112 on the other side of the tug. The tug proceeded at moderate speed down the Delaware River with fair weather and a favoring tide. At 4:00 p. m. the Julia reached the area of Reedy Island in the Delaware River, where the tow was streamed. The 112 was first let go and put on 100 fathoms of intermediate hawser shackled into the chain bridles on the 112's bow and the 110's stern. The 110 was then let go and put on 100 fathoms of towing hawser shackled into the wire bridles on the 110's bow and leading from the towing winch on the Julia's stern. The tow then continued down the Delaware River, into Delaware Bay, and then emerged into the Atlantic Ocean. The weather remained fair and the sea was slight. The barges followed well behind the Julia and appeared to be all right.

At 1:40 a. m. on September 8th, the Julia's mate, who was on watch at the time, observed the riding lights of the barges. The barges were in the same condition and position as they had been prior to that time. At 1:50 a. m., when he looked back again, the 110 had capsized and sunk.

In a situation such as this, the applicable principles of law are well settled. "In a contract of towage, the owner of the tow is responsible for the seaworthiness of his vessel and the owner of the tug for its safe navigation. The Radnor, D.C.Md., 21 F.2d 982; The Lizzie M. Walker, 4 Cir., 3 F.2d 921." Curtis Bay Towing Co. of Va. v. Southern Lighterage Corp., 4 Cir., 1952, 200 F.2d 33, 34; United States Fire Ins. Co. v. Gulf States Marine & Mining Co., 5 Cir., 1959, 262 F.2d 565; The Mariner, D.C.D.Mass. 1940, 35 F.Supp. 802, 805. "The mere fact that a tow receives injury does not render the tug liable. Negligence must be affirmatively shown and the burden of proving negligence rests upon those seeking to establish liability therefor. The tug is not liable as an insurer or as a common carrier, but owes to the tow the duty to exercise such reasonable care and maritime skill as prudent navigators employ in the performance of similar services. Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699; `The Margaret,' 94 U.S. 494, 24 L.Ed. 146; The Lapwing, 5 Cir., 150 F.2d 214; The Clarence L. Blakeslee, 2 Cir., 243 F. 365; The Atlantic City, 4 Cir., 241 F. 62." Stall & McDermott v. The Southern Cross, 5 Cir., 1952, 196 F.2d 309, 311; Southgate v. Eastern Transp. Co., 4 Cir., 1927, 21 F.2d 47, 49; Shamrock Towing Co. v. Schiavone-Bonomo Corp., D.C.S.D. N.Y.1959, 173 F.Supp. 39, 44. "A tow is presumed to be unseaworthy when she sinks under normal conditions, and in the absence of proof that she was improperly handled. The Senator Rice (D.C.) 15 F.(2d) 882; In re Young (D.C.) 162 F. 912; The Arctic Bird (D. C.) 109 F. 167". The Radnor, D.C.D.Md. 1927, 21 F.2d 982, 983; Southern Lighterage Corp. v. The J. Alvah Clark, D.C. E.D.Va., 103 F.Supp. 580, 582, affirmed Curtis Bay Towing Co. of Va. v. Southern Lighterage Corp., 4 Cir., 1952, 200 F.2d 33; The Mariner, D.C.D.Mass.1940, 35 F.Supp. 802, 805; see Commercial Molasses Corp. v. New York Tank Barge Corp., 2 Cir., 1940, 114 F.2d 248, 250, affirmed, 1941, 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89; Metropolitan Coal Co. v. Howard, 2 Cir., 1946, 155 F.2d 780, 783.

Snare contends that the barge sank as a result of a hole in the bow of the barge. It is alleged that the hole was caused by the negligence of the Julia during the course of the tow. Snare theorizes that the 110 was brought into contact either with the 112 or with the Julia during the streaming operation, thus causing the hole. After carefully reviewing all the evidence, I find that Snare has failed to sustain its burden of proving the Julia negligent.

The first question concerns the existence of the alleged hole in the 110. The evidence on this point is contradictory and confusing, to say the least. Cobelens, the diver sent down by Snare shortly after the sinking, testified that he found a hole. On the other hand, Van Frank, a salvor under contract to the Army Engineers, testified that he did not find a hole. Furthermore, the parties cannot seem to agree as to whether the hole, if there was one, was found in the starboard bow corner or the port stern corner. This...