Norfolk Tidewater Terminals v. Wood Towing Corp.

• Decision Date: 04 January 1938
• Docket Number: No. 4227.,4227.
• Citation: 94 F.2d 164
• Parties: NORFOLK TIDEWATER TERMINALS, Inc., v. WOOD TOWING CORPORATION et al.
• Court: U.S. Court of Appeals — Fourth Circuit

94 F.2d 164 (1938)

NORFOLK TIDEWATER TERMINALS, Inc., v.WOOD TOWING CORPORATION et al.

No. 4227.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

James S. Barron, of Norfolk, Va., for appellant.

John W. Oast, Jr., of Norfolk, Va., for appelleeWood Towing Corporation.

NORTHCOTT, Circuit Judge.

In July, 1936, libels were filed in the District Court of the United States for the Eastern District of Virginia, at Norfolk, by Geismar & Company, Incorporated, and Morris S. Hawkins and L. H. Windholz, receivers for Norfolk Southern Railroad Company, a corporation, against Wood Towing Corporation and Norfolk Tidewater Terminals, Incorporated.The receivers for N. S. R. Co. were the owners of a barge that was sunk, at a pier operated by the Terminals company, on the night of July 2-3, 1936, and Geismar & Company was the owner of the cargo on the barge.The object of the libels was to recover for damages to the barge and cargo occasioned by the sinking of the barge.The two cases were consolidated and heard together.

The Terminals company and the Towing Corporation both filed answers and the Terminals company filed a petition impleading the Towing Corporation, asking affirmative relief and a recovery over of any amount that might be recovered from it.To this petition the Towing Corporation filed an answer denying any responsibility for the accident.

A hearing was had in January, 1937, and twenty-six witnesses testified in person before the judge below.On March 3, 1937, the judge filed his findings of fact and conclusions of law and on March 10, 1937, entered an interlocutory decree holding the Terminals company solely at fault for the accident and postponed for a period of thirty (30) days the appointment of a special commissioner to ascertain the amount of damages.On May 19, 1937, the various parties having agreed as to the amount of the damages, a final decree was entered granting recovery to Geismar & Company from the Terminals company in the sum of $16,460, with interest and costs and granting recovery to the receivers of Norfolk Southern Railroad Company, in the sum of $7,408, with interest and costs.The Towing Corporation was also granted recovery from the receivers of N. S. R. Co., in the sum of $335, with interest and costs, to be paid by the receivers out of the amount recovered by them from the Terminals company.From this decree the Terminals company brought this appeal.

The Terminals company operated what is known as the Army Base Terminals in the harbor limits of the city of Norfolk, Virginia.These premises were leased from the United States Government by the Terminals company and that company had conducted on them the business of a warehouseman and wharfinger since the year 1925.

The Towing Corporation has been for years extensively engage in the towing business in Norfolk and was employed, for hire, by the Norfolk agents of Geismar & Company to carry a large number of bales of cotton linters, by water, from a warehouse in Norfolk harbor to a steamship that was expected to dock in the slip of the Terminals company.The day before the steamship was expected to dock the Towing Corporation loaded the cotton linters on three barges, one of their own and two N. S. R. barges, chartered by the Towing Corporation.One of these barges was N. S. BargeNo. 18, which was under the entire dominion of the Towing Corporation.

On July 2, 1936, at about 9:30 p. m., about high tide, one of the Towing Corporation tugs arrived at the Terminals company's slip with the three loaded barges and moored them.BargeNo. 18 was moored in the inside berth between the Terminals company's piers Nos. 1 and 2, on the south side of pier No. 2.

During the night the tide receded, and about one o'clock a. m., one of the watchmen employed by the Terminals company discovered that BargeNo. 18 was in trouble and listing away from the pier.The Towing Corporation was at once notified and sent the tug that had delivered the barges, which had been kept under steam awaiting the arrival of the steamship.Efforts were made to rescue the barge, but to no avail.The barge capsized and dumped her cargo into the slip.The damage to the barge was caused by a pile in the fender system which had been eaten off below water by worms and which projected outwardly from the pier.As the tide receded this broken pile penetrated the bottom of the barge causing her to fill and sink.

The only issue here is between the two respondents, and the only question presented on the appeal is whether the Terminals company was solely responsible for the damages caused by the accident.

The judge below...