THE DALZELLITE

• Decision Date: 25 November 1930
• Citation: 48 F.2d 598
• Parties: THE DALZELLITE. THE W. F. DALZELL. THE FRED B. DALZELL, Jr. SUN OIL CO. v. DALZELL TOWING CO., Inc.
• Court: U.S. District Court — Southern District of New York

48 F.2d 598 (1930)

THE DALZELLITE THE W. F. DALZELL THE FRED B. DALZELL, Jr SUN OIL CO. v. DALZELL TOWING CO., Inc.

District Court, S. D. New York.

November 25, 1930.

Duncan & Mount, of New York City (Frank A. Bull and Charles R. Millett, both of New York City, of counsel), for libelant.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Chauncey I. Clark and P. Fearson Shortridge, both of New York City, of counsel), for respondent.

KNOX, District Judge.

The trial of this suit developed the following state of facts:

On May 15, 1925, the steamship Sabine Sun, laden with oil, was off Stapleton, Staten Island. She was desirous of delivering the cargo at the dock of Texas Oil Company, at Bergen Point, N. J. On the preceding day, Leopold A. Turnbull, assistant marine superintendent of Sun Oil Company, in the ordinary course of his duties, had telephoned to respondent, and requested that tugs be sent to the Sabine Sun to take her to Bergen Point. Realizing that the waters leading to that destination were shallow at certain points, the libelant's representatives told respondent that the vessel would be lightered so as to bring her draft to twenty-four feet. When this had been done, the tug W. F. Dalzell proceeded alongside the steamer. The tug captain went upon the lighter's bridge to act as pilot. The tanker, using her own steam, accompanied by the tug, got under way. When the vessels were opposite St. George, they were joined by the tug Dalzellite. The three boats then proceeded through the Kill von Kull, and off Port Richmond, the tug Fred B. Dalzell, Jr., became a part of the flotilla. Her master, Howard B. Fort, ascended the bridge of the Sabine Sun to assume the role of pilot, relieving Captain Bennett of the W. F. Dalzell, who nevertheless remained on board. Turnbull, the captain of the tanker, his third officer, and a quartermaster were also there. The weather was clear, the tide was within an hour of high water, and the wind was such that it played no part in subsequent events.

In passing, it should be observed that Fort, in order to equip himself with knowledge of conditions existing along the channel through which the steamer was to go, and which was in process of being dredged, and which was also unmarked with the usual aids to navigation, had visited the locality on the previous day, and taken soundings of the depths of water through which the steamer was to move. He had also communicated with the engineers of the War Department, in an endeavor to procure a blueprint of the work then in progress. This he secured. He also bought a copy of the latest chart of the waters. These aids, it is said, were not of a character to furnish him with accurate knowledge of what he might expect to find. As a result, Fort was apprehensive of his ability to get the vessel to her destination in safety. In fact he states that he explained the difficulties of the situation to Turnbull, and that, had the latter not remarked that he would "take the risks" and would be very much pleased if the job were executed as well as when it was last performed, he (Fort) would have returned the ship to anchorage. Turnbull denies that any such conversation occurred. Whatever may be the truth as to this feature of the case, the tanker, using her own steam, with a tug on either quarter, and one forward on the port side, proceeded on her way. In navigating the vessel, Fort took his ranges from a gas tank and a street end on Staten Island that he had used successfully on former occasions when taking vessels into Newark Bay. On this trip, however, as he was rounding about Bergen Point, on an angle of 90 degrees to starboard, the forward part of the Sabine Sun struck against some obstruction, and went fast aground. She so remained for about three hours, during which time she was lightened of a part of her cargo. When this had been accomplished, the vessel floated, and, under the pilotage of Captain Fountain, who was brought aboard, was taken to her dock. The grounding of the vessel injured some of her plates, and this suit is designed to recover the resultant damages.

Captain Fountain testifies that, when he went on board the steamer, she was out of the channel and I so find. When Fountain took charge and the steamer had been floated, he backed her into the Kill von Kull, and then maneuvered in such fashion that the turn in the channel, which Fort had apparently missed, was made without trouble. On reaching the dock of the Texas Oil Company, Fountain returned the vessel to Fort, who warped her into the berth.

Upon the facts as they have been recited, it is clear that libelant can have no recovery against the tugs, or any of them. None of them contributed to the accident in any way, shape, or form. For this reason, each of them must be exonerated. The Edward G. Murray (C. C. A.) 278 F. 895.

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