THE BOWLING GREEN

• Citation: 11 F. Supp. 109
• Parties: THE BOWLING GREEN. THE SOCONY NO. 175. CZARNIKOW-RIONDA CO. et al. v. ELLERMAN & BUCKNALL S. S. CO., Limited, et al.
• Decision Date: 20 March 1935
• Court: U.S. District Court — Eastern District of New York

11 F. Supp. 109

THE BOWLING GREEN.

THE SOCONY NO. 175.

CZARNIKOW-RIONDA CO. et al. v. ELLERMAN & BUCKNALL S. S. CO., Limited, et al.

District Court, E. D. New York.

March 20, 1935.

Bigham, Englar, Jones & Houston, of New York City (Leonard J. Matteson and Richard F. Shaw, both of New York City, of counsel), for libelants.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City, for Ellerman & Bucknall S. S. Co., Limited, and Norton, Lilly & Co.

Purdy & Purdy, of New York City (Frank C. Mason, of New York City, of counsel), for Manhattan Lighterage Corporation, The Bowling Green, and Flower Lighterage Co., Inc.

Macklin, Brown, Lenahan & Speer, of New York City (Paul Speer, of New York City, of counsel), for Standard-Vacuum Transp. Co., and Socony No. 175.

CAMPBELL, District Judge.

This suit was brought by the three libelants against Ellerman & Bucknall Steamship Company, Limited, Ellerman Lines, Limited, Hall Line, Limited, Norton, Lilly & Co., Manhattan Lighterage Corporation, and lighter Bowling Green, to recover the sum of $8,000 for loss or damage to bales of sugar bags lost overboard from the Bowling Green.

The Standard-Vacuum Transportation Company and the lighter Socony No. 175 were impleaded on the petition of the Manhattan Lighterage Corporation, under the 56th Rule in Admiralty (28 USCA following section 723).

The Flower Lighterage Company, Inc., was impleaded on the petition of Ellerman & Bucknall Steamship Company, Limited, under the 56th Rule in Admiralty (28 USCA following section 723).

On the trial the suit was discontinued against Ellerman Lines, Limited, and Hall Line, Limited.

Briefly stated, the facts are as follows:

The cargo in question destined for Cuban ports was shipped at Calcutta, on board the steamship City of Manila, operated by respondent Ellerman & Bucknall Steamship Company, Limited, via New York, under negotiable through bills of lading.

The covering bills of lading provided that the goods should be delivered at New York, to Messrs. Norton, Lilly & Co., agents of the Ellerman & Bucknall Steamship Company, Limited, to be forwarded by them "at ship's expense but at the risk of the owner of the goods to Sagua, Cuba."

The bills of lading also contained the following exceptions and conditions: "Liberty to tranship or land or reship the said goods unto any other steamer or steamers at the steamer's expense is reserved. All and every transhipment to be at merchant's risk."

For a long time past, Norton, Lilly & Co. had had an arrangement with the Flower Lighterage Company, Inc., whereby the Flower Lighterage Company, Inc., agreed to transport cargoes for Norton, Lilly & Co., from Norton, Lilly & Co.'s pier to other points in or about New York harbor.

On the arrival of the goods, Norton, Lilly & Co. notified the Flower Lighterage Company, Inc., which sent among others the lighter Bowling Green owned and operated by the Manhattan Lighterage Corporation, to transport these and other goods to various places in New York harbor.

The sugar bags were loaded and stowed on the lighter Bowling Green by it or those for whom it is responsible.

The Bowling Green with the sugar bags on board was towed to the slip between Piers 64 and 65, North River, where the lighter was made fast over night alongside another lighter, Munson No. 68, lying moored to the bulkhead.

The goods were to be loaded on the steamship Munargo of the Munson Steamship Line, for carriage to Cuba.

It is admitted by the libelant that the cargo was in apparent good order and condition when turned over to the Flower Lighterage Company, Inc., and loaded aboard the Bowling Green, and the delivery book in evidence and other proof shows that to be the fact.

I am convinced that the Manhattan Lighterage Corporation, the lighter Bowling Green, and the Flower Lighterage Company, Inc., in the carriage of the gunnies, were acting as private carriers. This was stipulated by all of the parties to this suit, except the respondents Ellerman & Bucknall Steamship Co., Limited, and Norton, Lilly & Co., and was sustained by the evidence. It is true that the real owners of the cargoes carried were the holders of the bills of lading, but the Flower Lighterage Company, Inc., Manhattan Lighterage Corporation, and the lighter Bowling Green had no contract with such owners but were carrying such cargoes pursuant to an agreement with Norton, Lilly & Co., as agent for Ellerman & Bucknall Steamship Company, Limited, which last-mentioned company was paying the charges of such carrying of the cargoes provided by the provision of the bill of lading reading: "To be forwarded by them * * * at the ship's expense but at the risk of the owner of the goods. * * *"

The only cargo carried by the Flower Lighterage Company, Inc., Manhattan Lighterage Corporation, and lighter Bowling Green, at the time in question was that which was carried under the said agreement between Norton, Lilly & Co. and Flower Lighterage Co., Inc., on the order of said Norton, Lilly & Co., and this did not make them common carriers, but only bailees to transport for hire, and to recover as against them or either of them negligence must be affirmatively shown. The William I. McIlroy (D. C.) 37 F.(2d) 909, affirmed (C. C. A.) 45 F.(2d) 1023; The C. R. Sheffer (C. C. A.) 249 F. 600; The Wildenfels (C. C. A.) 161 F. 864; In re Steamship Co. Norden (D. C.) 6 F.(2d) 883.

The Bowling Green was properly made fast alongside of the Munson No. 68, which was at the bulkhead between Piers No. 64 and 65, North River, at the times in question, where she had a legal right to be.

The Bowling Green was at the times in question a stick lighter 95.5 feet long and 30.6 feet wide, having a scow-type hull with a raked bow and stern and hoisting machinery at the stern within a structure in which there were also living quarters for her captain and mate. She carried a gasoline engine on the starboard side aft for the purpose of pumping out the usual leakage to which all wooden vessels are subject, and from this engine there ran to the starboard side forward and starboard side aft pipe lines, each of which extended down into the hold close to the bottom.

The Bowling Green was overhauled a short time before the accident, to wit, November 25, 1932, and December 10, 1932, and when she left the yard no repairs were required and she was in excellent condition. While she was at the yard repairs had been made to her planking, her four corners and bumper log, and she was completely caulked from the water line to her rail. The tarpaulin covers which the Bowling Green carried for cargo protection were about two and one-half years old, and at the time of the accident in good condition, the average life of such covers being about eight years.

After leaving the repair yard, and on or about December 18, 1932, the Bowling Green, loaded safely, carried and delivered at their destination a shipment of cocoa beans in bags, and immediately thereafter went to Pier 2 Bush Docks to load the shipment involved in this suit.

The Bowling Green while at Bush Docks loading and subsequent to loading was thoroughly inspected and found in good condition, with no leakage, breakage, or indication of unseaworthiness. The Bowling Green was pumped out during the afternoon of December 30, 1932, and again shortly prior to her arrival at Pier 64, North River, and was inspected by her master and mate before they went to bed, who found it was unnecessary to pump her before they turned in for the night.

The Bowling Green was not in contact or collision with other vessels or docks while in tow of the steamlighter Getchell, from Bush Docks to the slip between Piers 64 and 65, and was landed without incident outside of the lighter Munson No. 68, which was lying at the bulkhead.

When the captain and mate of the Bowling Green arose on the morning of December 31st, they found on inspection that she was not leaking.

Subsequent to careening, the Bowling Green was inspected after she had been pumped out and found to be tight, not leaking, and in good condition.

Subsequent to the accident, and on January 4, 1933, without the requirement of any repairs whatever, the Bowling Green again loaded gunnies and continued to carry cargoes in and about the harbor of New York.

The marine surveyor called on behalf of the respondent-impleaded, Standard-Vacuum Transportation Company, who inspected the Bowling Green five days after the accident, did not testify to any condition of unseaworthiness or leakage or decay about the Bowling Green.

The Bowling Green at the time of the accident in suit was in all respects tight, staunch, strong, and seaworthy.

The captain of the Bowling Green was an experienced man, who had been engaged in carrying cargoes of a similar nature in and about the harbor of New York since 1904, and was qualified to load and stow gunnies in bales, and knew the proper, usual, and customary method employed in that operation, and the mate was fully qualified in these respects.

The bales were of two sizes, stowed four tiers high, with a partial fifth tier, with a space between the inside of the rail of the lighter and the bales of about 6 or 8 inches. The rail was about eight inches wide and there was a wearing piece on the outside of the lighter about four inches wide, thus the bales were stowed inboard of the outside of the wearing piece of about 1½ feet, and could not interfere with other objects or vessels which might come in close proximity to the Bowling Green. The height of the cargo was about 9 or 10 feet. The lighter was loaded so that it would have a slight list to starboard and forward to permit of the pumping of the ordinary leakage from the starboard forward end.

There was no proof of faulty stowage of the cargo or of excessive height.

While it is true that the mate of the Munson No. 68 testified that after the Bowling Green had lost gunnies from both her starboard and port sides amidships, he noted spaces between...