McGeeney v. Moran Towing Corporation, 316.
| Decision Date | 01 June 1945 |
| Docket Number | No. 316.,316. |
| Citation | 149 F.2d 791 |
| Parties | McGEENEY v. MORAN TOWING CORPORATION et al. THE LAWRENCE McGEENEY. |
| Court | U.S. Court of Appeals — Second Circuit |
Horace T. Atkins, of New York City, for Maritime Terminal Co., Inc., respondent-impleaded-appellant.
Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for libellant-appellee.
Macklin, Brown, Lenahan & Speer, of New York City (Richard F. Lenahan, of New York City, of counsel), for Moran Towing Corporation, respondent-appellee.
Before L. HAND, AUGUSTUS N. HAND and CLARK, Circuit Judges.
On February 9, 1943, the libellant chartered her scow Lawrence McGeeney to Moran Towing Corporation for an indefinite period. The scow was thereupon delivered to Moran Towing Company and the latter used it in its business. The charter was the ordinary harbor charter entered into by telephone and constituted a demise to Moran of the scow. The latter had a contract with Maritime, which was a stevedoring concern, to furnish Maritime with scows to receive and effect the disposal of ballast from steamers coming into New York Harbor. The Steamship Skiensfjord arrived carrying 1750 tons of wet sand ballast. Moran furnished the scows Seaboard 49 and O'Hara to Maritime to receive the discharge of this ballast. It was found in the course of the unloading that another scow was needed in order to receive the sand ballast on the Skiensfjord that was beyond the capacity of the Seaboard 49 and the O'Hara. Morace, an officer of Maritime, called on Moran for the additional scow and on September 5, 1943, Moran sent the Lawrence McGeeney, which it had under charter, to receive and dispose of the wet sand ballast remaining on the steamer. This scow had already received some 400 tons of try sand ballast from another ship and when she arrived alongside the Skiensfjord had to take on about 150 tons more in order to complete the discharge. When she reached the steamer she had 400 tons of sand ballast on board, was in all respects seaworthy and had a capacity that was ample to receive the additional 150 tons to be loaded on her. Maritime proceeded to discharge the wet sand ballast from the Skiensfjord, did not trim it with shovels, but discharged it on the piles of dry soft sand already on the scow by dumping in from a bucket operated from a boom on the steamer's tackle. By about 5 P. M. Maritime had discharged all but about 30 tons of the sand ballast remaining on the Skiensfjord. At that time the scow had a list to port of 8 or 9 inches. The bargee Palmer noticed the list and told the stevedore who was dumping the bucket to put sand on the starboard side, who replied: "we have got plenty left down below; I will fix that up later." Moran's employee Berg, who was the outside superintendent of Moran, also said to Maritime's officer Morace: "We are getting too much list on the scow; try the buckets and try to dump it to starboard." We do not find proof in the record that these suggestions were followed. The bargee testified that the stevedore operating the dumping bucket "didn't pay any attention to his suggestions but said: After the conversation with the stevedore the bargee went to his cabin, the stevedores completed unloading the 30 tons of sand ballast and left for the day. When the bargee came out of his cabin the stevedores had already gone but the scow was then listed to port, that is, toward the ship. He said that he thought they had gone ashore to eat and were coming back to trim the scow "but they never showed up." He testified that "she began to go over a little at a time * * * the sand was sliding," and when she "hit the side of the ship turned over."
The District Court found the following facts:
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