PETITION OF NEW YORK TRAP ROCK CORPORATION

• Decision Date: 14 April 1959
• Parties: Petition of NEW YORK TRAP ROCK CORPORATION, as owner of THE scow PRALL W. LAMBERT, in a cause of exoneration from or limitation of liability. PORT OF NEW YORK AUTHORITY, Libellant, v. RED STAR TOWING & TRANSPORTATION CO., Respondent.
• Court: U.S. District Court — Southern District of New York

172 F. Supp. 638

Petition of NEW YORK TRAP ROCK CORPORATION, as owner of THE scow PRALL W. LAMBERT, in a cause of exoneration from or limitation of liability.

PORT OF NEW YORK AUTHORITY, Libellant, v. RED STAR TOWING & TRANSPORTATION CO., Respondent.

United States District Court S. D. New York.

April 14, 1959.

Hagen, Johnson & Quarto, Henry C. Eidenbach, Nelson J. Johnson, New York City, for petitioner, New York Trap Rock Corp., Hill, Rivkins, Middleton, Louis & Warburton, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for libellant-claimant, Port of New York Authority, Donald M. Waesche, Jr., John De Roos, New York City, of counsel.

Macklin, Speer, Hanan & McKernan, New York City, for respondent, Red Star Towing & Transp. Co., Martin J. McHugh, New York City, of counsel.

Holtzmann, Wise & Shepard, New York City, for claimant, Lipsett Steel Products Co., Inc., Frank P. Broz, New York City, of counsel.

LEVET, District Judge.

The libel of the Port of New York Authority (hereinafter called "Port Authority") against Red Star Towing & Transportation Co. (hereinafter called "Red Star") and the proceedings commenced by New York Trap Rock Corporation (hereinafter called "Trap Rock") as owner of the scow Prall W. Lambert (hereinafter called "Lambert") for exoneration from or for limitation of liability, wherein Port Authority and Lipsett Steel Products Co., Inc. (hereinafter called "Lipsett") are claimants, have been consolidated for trial.

On December 22, 1954, the Lambert, moored by Red Star, careened and damaged a certain pier, known as the Navy Finger Pier, located at Newark, New Jersey. Said pier was owned by the United States of America and was under lease to Port Authority, which had, in turn, subleased it to Lipsett.

The Port Authority, libellant, sues respondent, Red Star as owner and/or operator of the Tug Roslyn. More particularly, Port Authority alleges that it holds a lease from the United States of a certain pier located in New Jersey and that, in turn, it leased the pier to Lipsett. At the time of the incident concerned, Lipsett, as lessee, was in possession. Port Authority further alleges that Red Star, without authorization, moored the Lambert, owned by Trap Rock, at this pier and while so moored without authorization it careened and struck the pier, causing damage thereto.

The answer of respondent Red Star to the libel consists of denials and of an affirmative allegation to the effect that the act complained of was not due to the fault of Red Star.

Trap Rock's petition for exoneration from or limitation of liability alleges among other things:

1. That the Lambert was not unseaworthy;

2. That it was not negligent;

3. That the accident was fortuitous and unforeseeable and that the damage which caused the sinking of the Lambert was from an unknown means;

4. That there was no consent, privity or knowledge on the part of Trap Rock with respect to the accident; and

5. That the value of the Lambert was only $500.

In the limitation proceeding, Port Authority, after denials, interposes a claim against the Lambert and its owners, Trap Rock, and asserts that when the Lambert capsized it struck the claimant's pier, thus causing damage thereto, and that this damage was without negligence or fault on the part of the claimant—that is, Port Authority—but was due to the fault and neglect on the part of the petitioner, Trap Rock, and of the Lambert and those in charge of her, as follows:

1. That the Lambert was moored without consent or approval and in spite of directions and warnings of Port Authority not to do so;

2. That the Lambert was a trespasser on the leased premises of Port Authority;

3. That the captain of the Lambert failed to keep his boat properly pumped out or to examine her to determine whether she was leaking;

4. That the Lambert was unseaworthy.

Other claims as a basis of liability are asserted but none of them have even colorable foundation.

Lipsett was made a party to the limitation proceeding and asserted a claim which alleges that the damage to the pier was due to the neglect of Trap Rock, the Lambert and those in charge of her, in substance as follows:

1. That Lipsett leased the said pier from Port Authority;

2. That the Lambert was moored at this pier without Lipsett's permission or approval in spite of directions issued "to barge owners and to others" not to do so;

3. That the Lambert capsized while lying at said pier because of (a) unseaworthiness and (b) negligence of those in charge of her and that when capsizing she struck against claimant's pier (apparently Lipsett's pier) and caused damage.

As to the basis of Lipsett's claim, it, like the Port Authority, alleges among other things:

1. That the mooring was without consent or approval of Lipsett in spite of directions and warnings not to do so;

2. That the Lambert was a trespasser on the leased premises of said claimant;

3. That the captain of the Lambert failed to keep his boat properly pumped out or to examine her to determine whether she was leaking;

4. That the Lambert was unseaworthy.

It appears that Lipsett seeks damages for loss of use of the pier, while the Port Authority claims loss for damages to the pier structure. All questions as to the amount of damages, if any, were reserved.

The petition for exoneration or limitation and the claims by the respective parties in these proceedings as pleaded are based upon admiralty and maritime jurisdiction of the United States.

After hearing the testimony of the parties, examining the exhibits, the pleadings, briefs and proposed findings submitted by counsel,¹ this court makes the following Findings of Fact and Conclusions of Law:

Findings of Fact.

1. At all times hereinafter mentioned, Port Authority was and still is a body corporate and politic, created by compact between the States of New York and New Jersey with the consent of the Congress of the United States, and was and is the joint and common agency of the States of New York and New Jersey created for the purpose of developing the Port of New York, and is duly authorized by both states to plan, effectuate, establish, acquire, construct, rehabilitate, develop and improve, own, control, operate and maintain terminal and transportation facilities within the Port of New York District, including marine terminals and piers, and has an office and place of business in the County of New York, City and State of New York, within this district.

2. At all times hereinafter mentioned, Red Star was and still is a corporation organized and existing under and by virtue of the laws of the State of New York, with an office and place of business in the County of New York, City and State of New York, within this district, and the said Red Star was the owner and operator of the Tug Roslyn and the employer of the master and crew thereof.

3. At all times hereinafter mentioned, petitioner, Trap Rock, was and still is a corporation organized and existing under and by virtue of the laws of the State of New York, with an office and place of business in the County of New York, City and State of New York, within this district, and at all times hereinafter mentioned, the Lambert was owned by Trap Rock.

4. At all times hereinafter mentioned, Lipsett was and still is a corporation organized and existing under and by virtue of the laws of the State of New York, with its office and place of business in the County of New York, City and State of New York, within this district.

5. On or about September 28, 1948, the United States leased to the Port Authority certain lands and property located in the County of Essex, City of Newark, State of New Jersey, more particularly described in the said agreement and lease, including, among other things, a wharf and pier known as the Navy Finger Pier, by which lease and agreement the libellant, Port Authority, was under obligation and responsibility to protect, preserve, repair and maintain the aforesaid Navy Finger Pier against an injury such as is here involved. (Exhibit 11.)

6. Pursuant to the terms of said lease, Port Authority spent certain sums of money in rectifying the condition of the pier as a result of the capsizing of the Lambert.

7. On or about September 1, 1954, Port Authority as lessee subleased to Lipsett a portion of the said Navy Finger Pier, including berth 27 thereof, for a period of one month, and thereafter the said lease was continued on a month-to-month basis and was in full force and effect on December 21 and 22, 1954. (See Exhibits 12 and 13.)

8. On or about December 20, 1954, the Lambert was properly loaded with approximately 753 tons, or 558 cubic yards, of rock screenings at Trap Rock's Tompkins Cove, Haverstraw, New York plant. Prior to the loading, some 10" of water were in her hold. She was pumped out, reinspected and found to have 2" of water and to be in a normal condition fit to tow.

9. The Lambert, built in 1926, was 112 feet long, approximately 34 feet wide, with a height at the sides of approximately 10 feet, and a draft of approximately 9½ feet. She had a capacity of 550 to 600 cubic yards.

10. The Lambert had not been generally recaulked since October 4, 1949, though certain repairs and recaulking were done on July 22, 1952, August 19, 1952 and September 30, 1954.

11. On December 21, 1954, the Lambert, loaded as aforesaid, was towed to Pier 72, North River, which is known as the "Market."

12. At about 10:00 p. m. on December 21, 1954, the Tug Roslyn, under the command of Maurits Ostergren, master, picked up the Lambert and at about 11:00 p. m. began towing her with two other scows, to wit, Vanderbilt and Saturn, to Pier B, Jersey City, New Jersey. According to Ostergren, no untoward or unusual situation appeared. The Lambert appeared to be in good operating condition. At this point at or about midnight of December 21, 1954, Harold C. Stebbins, Jr., mate, took over the operation of the Tug Roslyn and the tow,...