Salmons Dredging Corporation v. Herma, 5991.

• Decision Date: 20 February 1950
• Docket Number: No. 5991.,5991.
• Citation: 180 F.2d 233
• Parties: SALMONS DREDGING CORPORATION v. HERMA et al.
• Court: U.S. Court of Appeals — Fourth Circuit

180 F.2d 233 (1950)

SALMONS DREDGING CORPORATION v. HERMA et al.

No. 5991.

United States Court of Appeals Fourth Circuit.

Argued November 18, 1949.

Decided February 20, 1950.

Charles W. Waring and Henry T. Gaud, Charleston, S. C., for appellant and cross-appellee.

Thomas H. Middleton, New York City, and Harold A. Mouzon, Charleston, S. C. (Hill, Rivkins & Middleton, New York City, Hagood, Rivers & Young, and Moore & Mouzon, Charleston, S. C., on the brief), for appellees and cross-appellants.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

Salmons Dredging Corporation, in the District Court of the United States for the Eastern District of South Carolina, filed a libel in admiralty against the Norwegian Motor Ship Herma in rem and against the Carolina Shipping Company, as agent for the owner of the Herma, in personam. The Charleston Stevedoring Company was later brought in as respondent-impleaded by the Royal Norwegian Government, owner of the Herma. The libel sought to recover damages for the loss to libelant arising out of the sinking of its derrick barge Captain Harry. The Royal Norwegian Government interposed by cross libel its claim for damages to the Herma allegedly caused by the sinking of the Captain Harry while moored to the Herma.

After an extended trial, the District Court handed down the following Conclusions of Law:

"(1) The enumerated acts and omissions of the Respondent-Impleaded, and of its employees and agents, were negligent and the direct and proximate cause of the loss of the Libellant's derrick barge Captain Harry and the damage to the Norwegian Motor Ship Herma, without which the loss and damage would not have occurred.

"(2) Such negligence is actionable and imputable to the Respondent-Impleaded.

"(3) The Respondents are liable for the negligence of the Respondent-Impleaded in mismanagement of the Captain Harry.

"(4) The Respondent, Carolina Shipping Company, breached its contract with the Libellant when it failed to return the Captain Harry in accordance with the terms of the aforesaid demise charter.

"(5) The Libellant contributed as a proximate cause to the sinking of the derrick barge Captain Harry and the damage to the Norwegian Motor Ship Herma by providing a vessel that was not so seaworthy as she should have been for the purpose for which she was hired.

"(6) Since both the Libellant on the one hand and the Respondents and the Respondent-Impleaded on the other hand were at fault in respect to the loss of the derrick barge Captain Harry and in respect to the damage occasioned the Norwegian Motor Ship Herma, each is liable for one-half of the damage done to both vessels.

"(7) As between the Respondents and the Respondent-Impleaded the Charleston Stevedoring Company is primarily liable, the Carolina Shipping Company is secondarily liable and the Norwegian Motor Ship Herma is liable thereafter."

The damages to the Herma were fixed by stipulation and the case was referred to a Commissioner to determine the amount of the loss sustained by the libelant due to the sinking of the Captain Harry. The District Court held that the Captain Harry was a total loss and, in overruling exceptions to the report of the Commissioner, the District Court stated: "The exceptions are overruled and the conclusion of the Commissioner, `that the "Amount of the loss occasioned the Libellant herein due to the damaging and sinking of the Derrick Barge Captain Harry on or about the 25th day of September, 1945" is in the total sum of $112,207.78, with interest on that amount from September 25, 1945, at the rate of six (6%) per annum,' is approved."

The District Court, accordingly, handed down its decree:

"Accordingly, it is hereby

"Ordered that the Libellant have judgment and judgment is hereby rendered against the Respondents and against the Respondent-Impleaded for the sum of Fifty-six Thousand One Hundred Three and 89/100 ($56.103.89) Dollars, with interest thereon from September 25, 1945, at the rate of six (6%) percent per annum until the same is paid, and for such costs and disbursements as may be properly taxed in favor of the Libellant against the Respondents and the Respondent-Impleaded; and it is further

Ordered that the Claimant, Royal Norwegian Government, have judgment and judgment is hereby rendered against the Libellant for the sum of Two Thousand Two Hundred Sixty-one and 55/100 ($2,261.55) Dollars, with interest thereon from September 25, 1945 at the rate of six (6%) percent per annum until the same is paid, and for such costs and disbursements as may be properly taxed in favor of the Claimant against the Libellant."

The case is before us on appeals and cross-appeals.

The loaded Herma was aground in the harbor of Charleston, South Carolina. Attempts were made, in which the Captain Harry took part, to float the Herma. These efforts failed. It was then determined to unload the cargo of piles on the Herma into lighters, to float the unloaded ship, then to reload the piles on the Herma.

Accordingly, Carolina Shipping Company, as agent for the Herma, contracted with libelant for the use of the derrick barge Captain Harry for these unloading and loading operations. Carolina Shipping Company, also, engaged a tug to move the Captain Harry (which was not self-propelled) and procured the services of the Charleston Stevedoring Company in connection with this work of unloading and then loading the Herma.

The Captain Harry was an all-purpose marine derrick, used for salvaging, dredging and multiple lead pile driving. The hull was all wood construction and had a measurement of one hundred feet in length, forty feet in width, and eight feet in depth. It contained four steel spudwells. The hull was built of heavy timbers. The planking on the sides was six inches, the bottom rakes four inches. The bottom and sides, to a distance of one foot above the water line, were covered with ship's felt, which in turn, was covered by one-inch creosoted timbers. In the interior were heavy transverse timbers and other bracing. The steel spudwells, in addition to being bolted to the ship's sides, were fastened to the opposite spudwell with eight tie rods through the ship.

There were six steam engines on the Captain Harry, as follows: one three-drum engine (main hoist engine), one sluing or swinging single-drum engine, one 8×10 stern two-drum engine, used for the stern anchors, one reversible deck engine, and two port and starboard two-drum engines.

The hull was built in 1928, and was bought by the libelant in 1938 or 1939. Attached to the hull and superstructure were a stiff leg derrick with 120-foot steel boom, a lifting "A" frame, boilers, wrecking pump, deck house and other machinery and equipment necessary for the proper operation of the vessel. In addition to the machinery and equipment attached to the hull and superstructure, there were various items of loose gear on the vessel at the time of the sinking.

The operation of unloading the piles from the Herma into lighters with the use of the Captain Harry commenced early on September 22, 1945, and continued until the morning of September 24, 1945, when the Herma was floated free and moved a mile or so away into deep water. That same day the Captain Harry was moored broadside to the Herma and the reloading of the piles from the lighters to the Herma was begun.

In the early morning hours of September 25, 1945, the Captain Harry began to list heavily when the loaded derrick boom swung over the hatch of the Herma. About 5:10 A.M. the A-frame of the Captain Harry struck the side of the Herma, the listing of the Captain Harry increased, the cables tying the derrick to the Herma snapped and the Captain Harry sank, at the same time causing injury to the Herma.

We first approach the question of the exact nature of the transaction between Salmons Dredging Company and Carolina Shipping Company as to the employment of the Captain Harry for the operations incident to reloading the piles from the lighters to the Herma. Salmons Dredging Company stoutly asserts that there was a charter-demise of the Captain Harry in the nature of a bailment. Carolina Shiping Company vigorously contends that there was no bailment or charter-demise of the Captain Harry, but that, on the contrary, Salmons Dredging Company undertook the task of reloading the piles on the Herma and that the entire control and supervision of these operations was in the hands of Salmons Dredging Company and the crew of the Captain Harry. Incidentally, this crew consisted of only two men though Salmons Dredging Company agreed to furnish a crew of three men. The District Court held (correctly, we think) that the failure of Salmons Dredging Company to furnish the third crewman in no wise contributed to the sinking of the Captain Harry. This question was discussed at some length by the District Judge, who, in his opinion below stated: "I, therefore, conclude as a matter of fact that under the contract Salmons was only to furnish the Captain Harry with its equipment and crew and all supplies therefor, except perhaps fresh water, and that Carolina and/or Herma, for whom Carolina acted, or their authorized agents, was to have full supervision and control of the Captain Harry and its crew during the unloading and reloading operations."

And, subsequently, the Commissioner found: "At the time of her loss the Captain Harry was in the custody and control of the Respondents under a demise which required the Respondents to return her to the Libellant."

We cannot set aside this finding on the score that it is clearly erroneous.

The negotiations between Salmons Dredging Company and Carolina Shipping Company for the employment of the Captain Harry were oral. There was no little conflict in the testimony as to these negotiations and as to the manner and method of the reloading operations from the viewpoint of supervision and control of the work.

There is no question that...