THE CW CRANE

• Decision Date: 07 June 1946
• Docket Number: No. 301.,301.
• Citation: 155 F.2d 940
• Parties: THE C. W. CRANE. C. W. CRANE CO., Inc., etc., v. EVANS TRANSP. CORPORATION et al. UNITED STATES COMMERCIAL CO. v. SAME.
• Court: U.S. Court of Appeals — Second Circuit

155 F.2d 940 (1946)

THE C. W. CRANE.

C. W. CRANE CO., Inc., etc., v. EVANS TRANSP. CORPORATION et al.

UNITED STATES COMMERCIAL CO. v. SAME.

No. 301.

Circuit Court of Appeals, Second Circuit.

June 7, 1946.

Mahar & Mason, of New York City (Frank C. Mason, of New York City, of counsel), for C. W. Crane Co., Inc.

Forrest E. Single, of New York City, for Evans Transp. Corporation.

Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for Seaboard Great Lakes Corporation.

Paul P. Brennan, of New York City, for M. J. Rudolph Co., Inc.

Horace T. Atkins, of New York City (William Weymar, Jr., of New York City, of counsel), for United States Commercial Co.

Before CHASE, CLARK and FRANK, Circuit Judges.

FRANK, Circuit Judge.

This appeal represents one more effort to induce us in an admiralty case to disregard the trial judge's findings of fact although supported by evidence, where the testimony is in conflict, and where he heard and saw most of the witnesses — something which we have repeatedly said we would not do.¹ We could, and probably should, confine this opinion to a statement that the findings, as they are not clearly erroneous, must stand, and that the trial judge's conclusions of law are valid. However, we shall, in this instance, enlarge our discussion, hoping that thereby we can demonstrate to the bar the futility of such appeals.

The appeal is from a decree rendered in two actions, which were tried together, and consolidated for the purpose of appeal. In the first action the libel alleged that the respondent Evans Transportation Corporation² chartered the scow C. W. Crane³ owned by the libellant, C. W. Crane Company, Inc., and returned the scow in badly damaged condition on September 29, 1943. Evans impleaded the Seaboard Great Lakes Corporation⁴ on the ground that Seaboard had sub-chartered the same scow from Evans on September 27, 1943. Seaboard then impleaded M. J. Rudolph Company, Inc.,⁵ stevedores, asserting that the cause of the disaster was improper loading. The court below held Seaboard primarily liable, and Evans secondarily liable. Rudolph was held to be without fault.

In the second libel, the United States Commercial Company asserted that the scow Crane, her owners, the charterer and sub-charterer, and the stevedores were jointly responsible for the loss of the cargo which had been put on the Crane, and was lost when the scow overturned. The libel against the Crane was in rem. In the cargo suit, Seaboard was held primarily liable for the loss and the scow C. W. Crane, secondarily liable in rem. The libel was dismissed as to the others.

On September 1, 1943, the Evans Corporation chartered the Crane for an indefinite period, the charter to include the services of the scow-captain. The Crane was thoroughly inspected inside and out by the Superintendent of the Crane Company on August 28, 1943, and there is no showing that she was put to unusual use in the interval of five days before she was turned over on charter to Evans. Previously, in January 1943, she had been completely overhauled in drydock. The finding by the trial judge that she was seaworthy on September 2, 1943, therefore seems justified. Cf. O'Boyle v. United States, 2 Cir., 47 F. 2d 585.

The Crane is a deck-scow with raked ends and cargo bulkheads on each end. She has a capacity of about 850 tons and is eleven or twelve years old. Between September 2 and September 27, the Crane made four trips, loaded with vehicles. The evidence is not clear as to the load she was carrying on these trips, but it probably never exceeded 300 tons. No difficulties were encountered on any of these trips. On September 27, Seaboard requested Evans to supply it with boats to remove cargo from the S. S. Harpalycus. On that day, a tug called the American Eagle, which was operated by Seaboard, picked up the Crane and another scow, the Metropolitan 150, and towed them to Pier 33 in Brooklyn where they were tied up alongside the Harpalycus. On September 28, the Crane was placed alongside the Harpalycus, starboard side to. Loading began that afternoon and was discontinued after about 150 tons of ore had been taken on. During the night the Crane began to grind against the Metropolitan 150 and the Harpalycus, due to the traffic in Buttermilk Channel, and the fact that Pier 33 where the Crane was lying is an exposed berth. As a result of the grinding, the Crane lost its fenders and the Metropolitan 150 sprang a leak.

On the morning of September 29, the Crane's bargee communicated with Seaboard and with Evans by telephone. He informed both that the Crane was in a bad spot, and should be moved, and that Metropolitan 150 was leaking. The Crane was moved forward to the bow of the Harpalycus and loading was resumed. At about 5.45 p.m., after the scow had received between 400 and 500 tons of ore on board, the bargee discovered that she was leaking at the starboard stern corner. It was the starboard side of the Crane which had been alongside the Harplycus the night before when the grinding had taken place, and the starboard side remained alongside the Harpalycus during the day.

The Crane's bargee attempted immediately to control the leak by caulking it with oakum. He borrowed additional oakum for this purpose from the Metropolitan 150. He made no attempt to use the crane's pumps. The trial judge found that under the circumstances this was not negligence, and we agree, for there would probably have been very little point in using the hand-pumps unless the leak could first be stopped.

After attempting vainly to caulk the leak, the bargee ordered the loading stopped and again called Seaboard, this time at about 6 p.m. He was informed that it would be impossible to get in touch with the American Eagle for about an hour. About forty-five minutes later, the tug arrived at the scene. Her master inspected the Crane and, although by this time the scow was listing to starboard, the siphon of the American Eagle was placed in the port stern corner. The siphon thus employed was not in working condition, a fact which was known to the master of the American Eagle who had previously that afternoon attempted to use it in aid of the Metropolitan 150 which was also leaking. After some ineffectual attempts to get the...