THE INDEPENDENT

• Citation: 37 F. Supp. 106
• Decision Date: 11 February 1941
• Docket Number: No. 122.,122.
• Parties: THE INDEPENDENT.
• Court: U.S. District Court — Eastern District of Louisiana

37 F. Supp. 106

THE INDEPENDENT.

No. 122.

District Court, E. D. Louisiana, New Orleans Division.

February 11, 1941.

John D., M. A., & Edwin H. Grace, of New Orleans, La., for plaintiff.

Spencer, Phelps, Dunbar & Marks, of Dunbar, La., for defendant.

CAILLOUET, District Judge.

The New Orleans Coal & Bisso Towboat Company, represented by its president, W. A. Bisso, made a verbal agreement, over the telephone, with the Texas Company, libellant herein, "to furnish some barges to move some oil" in the Mississippi River from the libellant's plant at Marrero, Louisiana (which lies on the opposite river bank from the City of New Orleans), to the plant of the Lone Star Cement Company, in the Industrial Canal; such agreement followed his having been first asked by the representative of the libellant "to arrange to handle 5,000 barrels of oil from the plant to the Cement plant." (Bisso, pp. 64, 79.)

The libellant was advised by the witness as to the capacity of the two barges agreed to be furnished, — that one carried "about 2,000 barrels" and the other "practically 3,500"; but that, as to the latter, the witness "only wanted to put about 3,000 barrels in it." (Bisso, p. 81.)

Upon being cross-examined as to whether or not the agreement at first contemplated the furnishing of two barges or "one large barge", the witness answered: "It might have been we were to furnish one large barge, and for some reason or other we didn't have the barge here because it might have been chartered to some one else and they didn't return it, and when the time came to make the delivery, not having the other barge it is evident we must have agreed to handle the two barges". (Bisso, p. 80.)

The two barges were actually furnished and were brought over to the loading wharf or dock of the Texas Company by the claimant's tug, the Independent, on January 4th, 1932, and in the early morning of January 5th the same tug came back to move the oil in question from libellant's plant to that of the Lone Star Cement Company: libellant's oil, 1,904.88 barrels in Barge 12, and 3,238.29 barrels in Barge 18 (sometimes erroneously referred to as "15", in the testimony), or an aggregate of 5,143.17 barrels of an alleged total value of $2,299.62, when then and there in the custody of the claimant and respondent, and in the process of being moved in compliance with the agreement existing between it and the libellant, was lost under the circumstances hereinafter detailed.

The present libel followed on September 19, 1933, against the tug Independent, and respondent and claimant, through its said president, W. A. Bisso, intervened on December 27, 1933, and laying claim to the tug, as owner, prayed to defend; the tug having been previously released under bond.

On the same day exceptions to the libel were filed, and these were disposed of in due time.

On January 10, 1934, and again on December 27, 1934, the libel was amended and supplemented.

Answer was then filed on March 12, 1935, and an amended and supplemental answer, on December 13, 1937; on each occasion laches was pleaded against libellant.

On May 28, 1940, claimant and respondent filed its second amended and supplemental answer.

The respondent's contention is that Barges 12 and 18 were leased by it to the Texas Company, which loaded them with its oil, and that, under a contract of towage between the parties, the tug Independent took them in tow; whereupon (so respondent and claimant alleges), although both barges were entirely seaworthy and fit for the transportation of oil, and although nothing that it did caused the disaster, Barge 12 sank and Barge 18 listed so badly that it had to be beached. Which disaster, so far as libellant was concerned, resulted, it may here be said, in the complete loss of the oil cargo, and recovery is sought for its declared value of $2,299.62, with interest thereon from January 4th, 1932, and costs.

Libellant's position is that there was but one contract between it and the respondent claimant, or that is to say, a contract of affreightment, and that the barges furnished for the transportation of its oil by the equipment of the respondent claimant, which constituted said barges and the tug Independent, were unseaworthy and unfit for the transportation of the oil in question under the conditions obtaining in the Mississippi River on the morning of January 5, 1932, but which were in no wise extraordinary nor such as might not have been reasonably anticipated.

The evidence establishes that the barges were taken in custody by the tug, at the loading dock or wharf of the Texas Company, on a rising river, with a swift current running. (Downin, p. 12; Ennis, p. 36; Bisso, p. 70, 96, all witnesses called upon behalf of the respondent-claimant.)

Captain Bisso, respondent's president and authorized representative with respect to this particular transaction with libellant, testified as follows concerning the river stage, the current, the wind, the water surface, etc., viz.:

"Q. You know, do you not, Captain, from being out on the river as you say you were that morning immediately after #12 sank, that they had a very strong current in the river, don't you? A. The river was high; quite a little current.

"Q. What about the wind; do you recall? A. There was a little wind; and that reach is a long reach, about three or four miles, and the least little wind against the current would cause a little wave.

"Q. It was a choppy condition of the river, was it not? A. In that reach it might have been a little rough; I don't know how rough; it wasn't smooth; the least little wind will make —" (Bisso, pp. 95, 96.)

Previously, by way of explanation why no attempt was made to raise the sunken barge #12, from January 5, 1932 (the day of the disaster), until the month of September, he had testified: "The current was so strong, and it's deeper right there, just on the outside edge of the mooring barge of The Texas Oil Company's wharf, and a bend in the river there, and the current is very strong, * * *." (Bisso, p. 70.)

Captain Bisso further testified that neither of the barges were constructed with a water tight center line bulkhead. Between the top and bottom of this particular bulkhead, and the deck and flooring of the barges, respectively, there were open spaces of 4 to 6 inches, which permitted a liquid cargo to shift from side to side. The Barges 12 and 18 were not suitable for the handling of heavy oil, such as formed the cargo of Barges 12 and 18 at the time, whilst a cargo of lighter oil in just such barges as Nos. 12 and 18 would shift in the face of a side current, with a resultant list of so much as to bring one side of the barge two or three feet out of the water, nevertheless there was no sinking but a prompt righting of the vessel so soon as the current changed. A cargo of heavy molasses, under similar circumstances, invariably sank the barge.

These facts were well known to the witness because of his previous experience in the barge transportation of oil and molasses. (Bisso, pp. 97, 98, 99.)

The evidence shows that the Barge 18 had seen prior like service in the interest of the Texas Company, and had been loaded from the same dock or wharf. (Bisso, pp. 102, 103.) Former loadings, though of even heavier oil, in 6 out of 7 times, than the oil lost in the disaster of January 5, 1932, had been not as large as the one of January 4, 1932. (Schneider Exhibits 1, 2, 3.)

Whilst the witness Bisso testified that when the representative of the Texas Company asked him "to arrange to handle 5,000 barrels of oil from the plant to the Cement plant", he (Bisso) had in mind "the handling of bunker oil, or the same kind of oil we have handled for other companies for the ships" (Bisso, pp. 79, 80), there is no contention made that the libellant's representative was informed of this, nor is there evidence in the record to establish that the oil lost was any different than the libellant's oil previously handled for it by respondent-claimant (Schneider Exhibit 3) from the self-same loading dock or wharf. Captain Bisso, it is true, would not, at first, admit that the former loading of libellant's other oil in Barge 18 could have been of "ship oil" (as is reflected by said Schneider Exhibit 3), but did concede that such heavy oil, when heated, is "practically the same weight as the other or the bunker oil". (Bisso, p. 103.) It is assumed that, under such circumstances, it was "ship oil", or satisfactory for fuel use on ships.

Captain J. W. Tyler, master of the tug Independent, and now dead since October 1, 1936, swore to his official report of the mishap of January 5, 1932, before Nat W. Bond, then notary public in and for the Parish of Orleans, Louisiana, and now one of the Judges of its Civil District Court, on February 24, 1932, and by said report it appears that he had barely begun to swing the two barges "head down the river" from the libellant's loading dock (they having theretofore been tied to said dock "head up") when, "in the heavy seas", the barges "started listing to port, and the strong current and heavy sea caused by a strong wind blowing upstream caused the barges to roll more" and they "continued listing heavy to port."

The report continues to the effect that Barge 12 sank in front of libellant's dock whilst Barge 18, which never wholly submerged, was finally beached by him about 1,000 feet below the wharf. He then recites that at the time of so making such official sworn report, Barge 12 had not yet been located "on account of the extreme high water and swift current in the river, which was running over five miles per hour" and, finally, that both barges held an underwriter's certificate for carrying oil, and were "in first class condition."

Whilst defendant's counsel objected to the admission in evidence of this sworn master's report, there is no doubt that it is an authentic official report; defendant's own witness, Captain W. A. Bisso, having identified as true and...