Petition of Reliance Marine Transp. & Const. Corp.

• Decision Date: 03 February 1950
• Docket Number: 4388.,4370,No. 4369,4369
• Citation: 89 F. Supp. 272
• Court: U.S. District Court — District of Connecticut
• Parties: Petition of RELIANCE MARINE TRANSP. & CONST. CORPORATION. THE M. J. WOODS. RELIANCE MARINE TRANSP. & CONST. CORPORATION v. THE TUG SKIPPER. OLDS & WHIPPLE, Inc. v. THE TUG SKIPPER et al.

89 F. Supp. 272

Petition of RELIANCE MARINE TRANSP. & CONST. CORPORATION.

THE M. J. WOODS.

RELIANCE MARINE TRANSP. & CONST. CORPORATION v. THE TUG SKIPPER.

OLDS & WHIPPLE, Inc. v. THE TUG SKIPPER et al.

Nos. 4369, 4370, 4388.

United States District Court D. Connecticut.

February 3, 1950.

Mahar & Mason, New York City, for Reliance Marine Transp. Corp.

Macklin, Speer, Hanan & McKernan, New York City (Albert J. Merritt, Bridgeport, Conn., and Leo F. Hanan, New York City, of counsel), for respondent-claimant James McWilliams Blue Line, Inc.

Hill, Rivkins & Middletown, New York City (Thomas H. Middleton, New York City, of counsel), for libelant Olds & Whipple.

HINCKS, Chief Judge.

This case is concerned with the liabilities resulting from the sinking of a barge owned by Reliance Marine Transportation and Construction Corp. while under tow by the tug Skipper owned and operated by James McWilliams Blue Line, Inc., and while carrying a cargo owned by Olds & Whipple, Inc. The case comprises three proceedings in admiralty, the parties having stipulated that all three proceedings be heard simultaneously and that the testimony, findings and conclusions shall apply equally in all three. (1) Reliance Marine Transportation & Construction Corporation, the owner of the lost barge, has petitioned for limitation of liability under 46 U.S.C.A. §§ 183-185 and in the limitation proceeding claims have been filed by James McWilliams Blue Line, Inc., the charterer of the barge, and Olds and Whipple, Inc., owner of the cargo lost with the barge. (2) The owner of the lost barge has also filed a libel against the tug Skipper, owned by the McWilliams Company which appeared as a claimant, alleging negligence on the part of the tug and claiming damages for the loss of the barge. (3) The cargo-owner has filed a libel against the tug Skipper, the barge M. J. Woods, and McWilliams Blue Line claiming damages for the loss of the cargo.

Combined Findings

1. Reliance Marine Transportation & Construction Corporation (hereinafter called the barge-owner) is a corporation organized under the laws of the State of New York and was the owner of the barge M. J. Woods.

2. James McWilliams Blue Line, Inc. (hereinafter called the carrier) is a corporation organized under the laws of the State of New York and was the owner of the tug Skipper.

3. Olds & Whipple, Inc. (hereinafter called cargo) is a corporation organized under the laws of the State of Connecticut, and was the owner of a cargo of superphosphates laden on the barge M. J. Woods on or about January 27th, 1948 at Carteret, N. J., for delivery to New Haven, Connecticut.

4. The barge Woods was seventeen years old, built of wood except for steel decks and cabin roof, with a wedged wooden bottom, and was without sheathing at her bow, but carried sand-irons of both sides which protected the junction of the bottom planking with the side planking. She had a length of 112 feet, a beam of 34 feet and a depth, amidships, of 13½ feet and a capacity of 1,000 net tons. Bottom wedges such as hers generally require replacement after twenty years. Prior to the voyage in question she had last been dry docked in April, 1946; at that time examination disclosed that her bottom and planking so far as observable were sound, but the sand-irons with which she was equipped were not then removed to permit examination of the condition beneath. In July, 1947, her scarfs, nibs and chines were searched and hardened in by her owner, and left in a sound condition. On September 21, 1947, she had come into contact with a lock wall in the New York State Barge Canal: although the contact was not particularly heavy and resulted in no visible breakage it was sufficient to start her caulking. On December 3, 1947, her owner again, and again without dry-docking, searched scarfs and nibs. Thereafter, she was hired out to carry grain in and about New York and was engaged in such carriage until chartered to the carrier as stated in Par. 7, below.

5. The tug Skipper, owned and operated by the carrier, was a diesel tug of 146 gross tons, 99 net tons, 82 feet in length, 24 feet beam, 10 feet, 6 inches depth of hold; she was built in 1944 and was of 700 horsepower. At all times hereinafter mentioned she was seaworthy: indeed, her seaworthiness has not been questioned in these cases.

6. On or about January 26, 1948 cargo entered into a contract of carriage with the carrier whereby carrier was to transport 900 tons of superphosphate from Carteret, N. J. to New Haven, Connecticut. The contract was not in writing but it was orally agreed that the carriage should be on the terms and subject to the conditions stated in the carrier's printed freight tariff effective November 27, 1946, copy of which the carrier had previously issued to cargo and which had controlled their prior dealings. This tariff showed a rate for the transportation here involved of $1.00 per ton for a minimum cargo of 900 tons and a somewhat higher rate for somewhat smaller cargoes and the parties clearly contemplated that the transportation should be accomplished by a barge under tow. The carrier's printed tariff also stated that transportation thereunder was subject to the Carriage of Goods by Sea Act of 1936, 46 U.S.C.A. § 1300 et seq., and to the Harter Act, 46 U.S.C.A. § 190 et seq. Cargo and carrier intended that this contract should embrace the terms and conditions of this so-called tariff. The barge-owner was neither party nor privy to this contract.

7. To accomplish the undertaking assumed by the foregoing contract the carrier orally by telephone to the barge-owner's New York office arranged for the use of the barge Woods for the voyage in question, the barge-owner to receive 40¢ per ton. The arrangement was made through one Woods who was in charge of barge-owner's New York office with authority to make such a contract, but, so far as appears, without authority over or responsibility for the operation, maintenance, repair or inspection of the barge. The barge, with bargee, was made available to the carrier in accordance with this agreement, and the carrier who received and used the barge wholly without examination or inspection acted without due diligence to make the barge seaworthy.

8. The barge left Carteret on January 28, 1948 under tow by the Skipper, after taking on cargo, without prior inspection so far as appears. On the morning of January 30th, 1948 the flotilla arrived at New Haven Harbor and the tug-captain brought the barge to the stakeboat maintained by the carrier in New Haven Harbor at an anchorage located southerly of the end of the Long Wharf and westerly of the main channel, generally abreast of buoys 18 and 20. The barge was no sooner made fast to the stakeboat than it began to sink, whereupon it was cut loose and propelled by the tug toward shallower water. It sank before going far and was abandoned by its owner.

9. On entering the harbor, the tug shortened its line and brought the barge in to the stakeboat on a short hawser from her stern bit to the mid-bow bit of the barge carefully and without incident, in quiet water by a course largely free from solid ice. Broken ice was encountered but no heavier than was to be expected for the season and place when the charter was accomplished. It was not proved that the sinking was caused by collision with ice or, if so caused, that the carrier or tug was negligent.

Discussion

The foregoing finding is supported by the testimony of the tug-captain, his deck-hand and the captain of the stakeboat, also an employee of the carrier. It was further supported by credible and undisputed evidence that earlier that day tugs with tow had used the main channel and that at least one tug had broken up the ice in the water between the main channel and the stakeboat and in the vicinity of the stakeboat. Indeed, shortly before the sinking a tug had circled the stakeboat, had picked up a barge tied thereto, and had taken it out of the harbor.

The finding, it is true, was at variance with the testimony of the bargee. He maintained that while in the outer harbor the tug made fast alongside on the starboard and rammed the barge with great violence against solid ice. His testimony, however, was permeated with much confusion: due possibly to the excitement incidental to the sinking he may easily have confused what happened before the barge was tied to the stakeboat with what happened afterward when in a desperate effort to beach the barge it well may have been propelled into ice not broken by earlier navigation. And it is hardly likely that the tug would have chosen a course through solid ice when according to undisputed testimony an open channel was available.

Nor does the diver's report impugn my finding. His examination was made six months after the accident and was confined to the planking above the bottom. True, lengths from two bow planks, which may have been somewhere near the loaded water line, were then found to be missing. For aught that appears, however, this condition may have resulted from pontoons serving a dredging operation which by undisputed evidence had been moored in the vicinity after the sinking and before the diver's examination. Also one would expect that damage from ice would result in planks stoved in rather than in lengths of planks completely missing. And if caused by ice the contact may have occurred during the beaching effort after the barge began to sink. Moreover, it appeared that the barge-owner had caused an earlier diver's examination to be made, the report on which was never offered in evidence. The unexplained failure to offer a report of the earlier examination serves somewhat to increase the inconclusive tenor of the later one.

10. The barge sank without credible evidence of cause sufficient to account for the sinking of a seaworthy barge.

11. The sinking was caused by the unseaworthiness of the barge and taking into account all the evidence and the inferences to be drawn...