THE FRED E. HASLER

• Decision Date: 01 May 1931
• Citation: 51 F.2d 779
• Parties: THE FRED E. HASLER. PROCTOR & GAMBLE CO. v. ATLANTIC OIL TRANSIT CORPORATION.
• Court: U.S. District Court — Southern District of New York

51 F.2d 779 (1931)

THE FRED E. HASLER PROCTOR & GAMBLE CO. v. ATLANTIC OIL TRANSIT CORPORATION.

District Court, S. D. New York.

April 27, 1931.

May 1, 1931.

Haight, Smith, Griffin & Deming, of New York City (Charles S. Haight and Wharton Poor, both of New York City, of counsel), for libelant.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Chauncey I. Clark, Eugene Underwood, and Adrian J. O'Kane, all of New York City, of counsel), for respondent.

PATTERSON, District Judge.

Suit is brought to recover the value of a cargo of whale oil lost through the sinking of the tank barge Hasler. The libelant had chartered the Hasler from the respondent to take a cargo of whale oil from the steamer Sir James Clark Ross which lay at Pier 6, Staten Island, to Port Ivory on Staten Island. The Hasler was in charge of one Valerio, a man in the owner's employ. The pumping of the oil from the Ross into the Hasler commenced shortly after noon on April 15, 1929, and was finished shortly before midnight, when the bargee signified that the Hasler had a load. It then had freeboard of about six inches in the middle and two feet on the ends. A violent storm came up in the early morning of the 16th, which prevented moving the barge. It sank about 5 a. m., while still lying alongside the Ross, bow end inshore, and the oil was practically a total loss. The libelant brought suit on contract against the barge in rem and the owner in personam, alleging unseaworthiness.

The Hasler was a steel barge, two hundred feet long by thirty six feet wide, with eight tanks. Each tank had two hatches and two gooseneck vents and was connected with the other tanks by equalizing valves. To furnish buoyancy, it had forepeak and afterpeak compartments, each with two hatches. It is beyond controversy that the barge was in good condition at the time, so far as structure and equipment were concerned. When such a barge has its hatch covers securely fastened, it is practically unsinkable, even when the tanks are filled with oil; indeed, it is common to see barges of this type being towed around the harbor with decks awash.

The libelant's theory of the sinking is that the hatch covers on the peak compartments and others as well had not been securely fastened, if fastened at all. The force of the waves during the storm would then move the covers and the compartments would fill with water. With the compartments full of water, the barge would have no buoyancy and would sink. This theory is supported both by evidence of a satisfactory character and by the probabilities of the case. On the day after the sinking, two divers examined the Hasler as it rested on bottom. Their mission was to save the oil by plugging the gooseneck vents and making certain that the hatch covers were tight. They testified to finding one of the forepeak hatch covers off and several of the hatch covers on the tanks off or loose. They did not examine the afterpeak hatches. When the barge was raised on the 21st, four marine surveyors, including a representative of the owner, were present. All of them said that as the barge broke water they noticed that the afterpeak hatch covers were not in place. When the barge was examined in dry dock the next day, no damage could be found other than a crack on the deck which probably developed in the course of lifting the barge from the bottom. The hatch covers and fastenings were in good order. The only testimony in contradiction of this theory is that of the bargee who said that he had securely fastened all the hatches. At the trial it was suggested by the respondent that the hatch covers might have been loosened by the violent pounding of the waves upon the deck. The opinion of the expert witnesses was that this could not have happened with covers fastened securely at the outset, there having been no hatch breakages visible afterwards.

The respondent also put forward the theory that the barge was pushed down by the weight of the water on the deck. It is true that the barge was boxed in by the Ross and by other craft with higher freeboard and doubtless its stern got the full vigor of the waves, but the theory is an impossible one. The deck was a flat one, without sides. With hatches properly covered, the barge had buoyancy and would rise again. The water could not remain in piles or heaps upon the deck. In its brief, the respondent advances a third proposition, that water was forced through the gooseneck vents. While more plausible than the others, this theory is also untenable. The openings on these curved pipes were over a foot above the deck, and their diameter was only five and one-half inches. Some water undoubtedly did enter the tanks through the pipes, but they could not have taken water fast enough to put the vessel into a sinking condition in two or three hours. The argument assumes that water was rushing into the tanks in sufficient volume, not only to fill them, but to displace and force out a large quantity of the lighter oil; only in this way could the barge have gone down, for the peak compartments had no vents and the air in them furnished enough buoyancy to permit the flow of water into the tanks so as to fill them without any sinking. And of course this theory utterly disregards the testimony given by the divers and by the witnesses who saw the barge being raised.

Several witnesses for the respondent called the storm one of unprecedented violence, and stated that conditions in the vicinity of Pier 6 were very bad as early as midnight. From other evidence, however, it seems to me that the wind and waves, while unusually high, were by no means the worst on record, and that their force did not seriously affect this barge until after 3 o'clock on the morning of the 16th. It was not until about 3:40 that the bargee became alarmed...