THE CARY BRICK CO. NO. 8

• Decision Date: 26 August 1925
• Citation: 34 F.2d 981
• Parties: THE CARY BRICK CO. NO. 8. SHAINE v. CARY et al.
• Court: U.S. District Court — Southern District of New York

34 F.2d 981

THE CARY BRICK CO. NO. 8 SHAINE v. CARY et al.

District Court, S. D. New York.

August 26, 1925.

Bigham, Englar & Jones and Leonard J. Matteson, all of New York City, for libelant.

Poore & Webster and James C. Webster, all of New York City, for claimants.

Alexander & Ash and Edward Ash, all of New York City, for Weehawken Dry Dock Co.

Foley & Martin and James A. Martin, all of New York City, for Lambert Transportation Co.

Andrew J. McElhinney, of New York City, for James B. McQuade Co.

Kirlin, Woolsey, Campbell, Hickox & Keating, Robert S. Erskine, and A. H. Combs, all of New York City, for United Port Service Co.

Fitch, Donovan & Savarese and John C. Donovan, all of New York City, for M. P. Smith & Sons Company, Inc.

Joseph E. Haggerty, of New York City, for Charles H. Gimpel.

GODDARD, District Judge.

These two suits have been brought by the libelant to recover damages for the loss of cargo, which was dumped overboard from the barge Cary No. 8 when she careened as a result of leaking while at the Bush Docks, Brooklyn, N. Y. The two suits and the pleadings are practically identical, except that one is against the barge Cary No. 8 in rem, and the other is against the owners of the barge in personam. The material allegations in both libels set forth that on or about June 6, 1918, the libelant placed on board the Cary No. 8, then lying at Pier 2, Jersey City, a cargo to be transported from there to Bush Docks, Brooklyn, in order to be placed on board the steamship City of Rangoon; that on June 13, 1918, while the barge, laden with the greater portion of her cargo, was lying at the Bush Docks, she careened and dumped her cargo "by reason of the unseaworthiness of the said barge, Cary No. 8, and the negligence of those in charge of her, in the stowage, custody, and care of said cargo." The Cary No. 8 was a wooden barge, 114 feet long, 34 feet wide, with a cargo capacity of 1,000 tons.

In April, 1918, Cary and Gailor, her owners, chartered her, with the service of the barge captain, to the Weehawken Dry Dock Company, who thereafter subchartered her to the Lambert Transportation Company, which in turn subchartered her to the James B. McQuade Company, who were in possession of her at the time the loss occurred. These were all oral charters; the charter from Lambert Transportation Company to McQuade being confirmed by letter of May 17, 1918, from the Lambert Company to McQuade. McQuade entered into a contract with R. D. White & Co., who were the shipping agents of the libelant, to carry a cargo of about 12 carloads of mixed steel, totaling some 514 tons, consisting of iron bars, kegs of nails, and hoop irons, owned by the libelant.

The cargo was placed on board the Cary No. 8 by McQuade on June 6, 1918, and the barge towed to the Bush Terminal, arriving there June 11th. M. P. Smith & Co., Inc., the stevedores who were loading the City of Rangoon at Bush Terminal, were employed by McQuade to unload the cargo and put it aboard the Rangoon, and on the day of her arrival they removed 38 tons of the cargo from the stern end of the barge. After this cargo was taken off, it was noticed that the barge listed, and she was found to be leaking to such an extent that her position was thought to be precarious, and White & Co. employed Gimpel, another stevedore, to sort the cargo and rearrange it, in an effort to get her on an even keel and keep her afloat.

On the morning of June 12th, Gimpel went aboard the barge with his men and, finding that the barge was leaking badly, immediately notified White & Co., and was given orders by White & Co. to do everything possible to keep the barge afloat, and Gimpel and his men spent the day in watching and shifting the cargo, preliminary to having it put on board the Rangoon by Smith. M. P. Smith & Co. were paid by McQuade, who later rebilled to the libelant's agents.

The barge captain, Olsen, testified that, up to the time the 38 tons of cargo was removed, it had only been necessary to pump the barge 15 minutes each day; that after this occurred he had to pump each two or three hours, for a period of half an hour, and that, while Gimpel was shifting the cargo, the leaking increased, so that he had to pump almost continuously; that a tug with a suction pump worked from 10:35 a. m. until 4 p. m., when she left, and from that time until about 11 o'clock he pumped almost continuously, when he went ashore for dinner and remained away about 2 hours, leaving no one to pump or watch the barge; that, when he retur...