THE MAURICE R.
| Decision Date | 21 December 1932 |
| Docket Number | No. 12946.,12946. |
| Citation | 3 F. Supp. 86 |
| Parties | THE MAURICE R. |
| Court | U.S. District Court — Eastern District of New York |
Purdy & Purdy, of New York City (by William F. Purdy, of New York City), for libelant.
Single & Single, of New York City (by George B. Warburton, of New York City), for O'Boyle.
Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (by Chauncey I. Clark and P. F. Shortridge, both of New York City), for Pennsylvania R. Co.
This is a suit for alleged cargo damage.
I find the facts as follows:
At all the times hereinafter mentioned and at the time of the trial, the libelant was a domestic corporation organized and existing under and by virtue of the laws of the state of New York.
At all the times hereinafter mentioned, the libelant was the owner of a cargo consisting of 881 gross tons of bituminous coal, laden on board the barge Maurice R.
The barge Maurice R. was during the currency of process within this district and within the jurisdiction of this court.
At all the times hereinafter mentioned and at the time of the trial, the respondent Pennsylvania Railroad Company was a foreign corporation organized and existing under and by virtue of the laws of the state of Pennsylvania, and having goods, chattels, property, credits and effects, including floating equipment, tugs, floats, and barges, within this district and within the jurisdiction of this court.
On the 23d day of December, 1931, a representative of the Newtown Creek Coal & Coke Company called Mr. Hickey, of the claimant's office, and asked Mr. Hickey for a boat to carry between 850 and 900 tons of coal. Mr. Hickey informed the libelant that he could use the Maurice R. The barge Maurice R. was not under continuous charter to the libelant.
The barge Maurice R. was, on the afternoon of December 23d, reported to the Pennsylvania Railroad Company for towage, and on the same day she was picked up and towed down to South Amboy with other light barges by the Pennsylvania Railroad Company tug Baltimore, arriving at South Amboy at 10:20 a. m. on December 24th.
The barge Maurice R. was not placed alongside the railroad bridge but was placed alongside of the rack and two light barges were outside of her.
The coal was owned by libelant and not by the Pennsylvania Railroad Company.
There was no contract made with the Pennsylvania Railroad Company to tow to South Amboy, load and return.
Upon arrival at South Amboy the barge captain reported his boat for loading for 750 tons.
When McGonigle, the shipping clerk of the Pennsylvania Railroad Company, noticed that the boat had been reported for 750 tons and knew that the libelant's shipment was in excess of that amount, he called Mr. Brown, of the libelant, and informed him of the barge captain's registration. Brown told McGonigle that he had hired the boat from O'Boyle as capable of carrying between 850 and 900 tons of coal, and that he would get in touch with Hickey to have the matter ironed out, which he did, and Hickey got in touch with McGonigle and told McGonigle to load the boat with 850 tons.
The barge Maurice R. remained lying outside other boats alongside the rack during December 24th and throughout December 25th, but in the morning the boats inside of her were shifted and she was placed alongside the rack.
At no time while the Maurice R. was at the mooring stakes, on December 24th, 25th, or 26th, was she damaged by pounding or any other cause, and her captain did not observe or report any damage during that time, or ask for assistance.
On December 26th, at 6:15 o'clock a. m., she was shifted from the rack to the loading pier B, by the respondent's steamtug Radnor.
On December 26th, at 7 o'clock a. m., respondent received the written order mailed by the libelant on December 24th, to load the Maurice R. with approximately 900 tons of Luzino class coal, and tow her to Eagle street, Brooklyn.
On the morning of December 26th, 881 tons of coal were placed on the barge Maurice R. The boat was properly loaded, her captain made no complaint, and her freeboard was about 12 inches. 881 tons was well within the capacity of the Maurice R.
When the loading was finished, the barge captain sounded his boat and found that she had 14 inches of water in her. She was at the dumper pier waiting to be shifted into the loaded tow. The captain of the Maurice R. then started pumping with her gasoline pump, which was located on the port side aft.
The pump worked for about half an hour and pumped water out.
The pump was working when the shifting of the barge to the loaded tow by the tug Overbrook commenced, but stopped while the barge was being shifted.
As the barge was being placed in the tow, it was discovered that she was leaking, the water coming through the seam between the third and fourth planks on the port side, and through another seam between her fifth and sixth planks on the bow. The master of the Overbrook then took the barge out of the tow and put her on the mud, and sent his deckhand and engineer over on the barge to see if they could help the captain get the pump going, but they could do nothing with it, and the master of the Overbrook then told the captain of the barge "You had better go uptown and get somebody to do something with your pump."
The captain of the barge repaired his pump and asked to be taken in the tow, but as she was still leaking they would not take her.
The captain of the barge then telephoned Mr. Hickey, who represented O'Boyle, and told him the barge was on the mud and that he was going to quit his job. Another captain, by the name of Lenz, was sent down arriving at the barge on the morning of December 27th, whereupon the first barge captain left. At that time the Maurice R. was still on the mud, but with 13 inches of water in her and the pump had the leak under control.
On the morning of December 28th the respondent's steamtug Radnor shifted the Maurice R. from the mud where she was afloat to pier A where the loaded tows were made up.
When the order to place the Maurice R. in the tow was received by the master of the Radnor, he was informed by the captain of the Maurice R. that she was not leaking and had no water in her. The barge looked all right to the master of the Radnor, and she had about 10 inches of freeboard, which was enough for safety, and he placed her in the middle of the head tier of the loaded tow. The Maurice R. was later shifted to starboard boat third tier which was a safer position in the tow.
The respondent's steamtug Baltimore left South Amboy about 5 o'clock p. m. with the Maurice R. and other barges in tow bound for New York. The wind was light N. W. and there was no unusual weather or swells on the up trip, but at one time while coming up the bay, the captain of the Maurice R., the pump of which barge was going, came to the captain of the PRR 704, the starboard hawser boat of the tow, and told him that he was listing to port, and he went back with the captain of the Maurice R. and tried to shovel the coal and straighten him up.
When the tow arrived at the respondent's stakeboat before daylight on December 29th, the boats, including the Maurice R., were moored at the stakeboat, and the captain of the Maurice R. again came to the captain of the PRR 704 and told him he was leaking. The pumps of the Maurice R. were going, and the captain of the Maurice R. asked the captain of the PRR 704 to give him a hand to shovel more coal, and they tried to straighten the Maurice R. up again.
The tow had come up in charge of the steamtug Baltimore, which had been assisted by the Overbrook from Carteret.
The pump of the Maurice R. had been running all night.
Later the respondent's steamtug Mercer, which after leaving St. George had orders to land the North River boats out of a loaded tow lying at the stakeboat, arrived at the stakeboat and noticed the Maurice R. lying on the starboard side of the tow looking as if she was about to sink.
The master of the Mercer, about 9 o'clock a. m., had a short conversation with the captain of the Maurice R., and the Mercer made the Maurice R. fast with the port side of the Maurice R. to the starboard side of the Mercer and seeing that the Mercer would not be able to hold the barge, the Mercer had the respondent's steamtug Baltimore get on the starboard side of the Maurice R. and shove her onto the mud in a slip at Port Liberty, where the captain of the Maurice R. was put ashore to notify the owner, and she filled up, turned over, and damaged the cargo.
The Mercer stood by the barge until the tide fell and she settled herself in the mud, to put a line on her, but could not as all the bitts were submerged. The Mercer could do no more.
The gasoline pump of the Maurice R. was going when the Mercer made fast.
The Mercer had to work fast. She could have aided the Maurice R. if she could have put a siphon in her at once, but the captain of the Maurice R. told the master of the Mercer that there was no way to put a siphon in the Maurice R.
From the facts as found, the barge Maurice R. is solely at fault.
There is no evidence of any contract made by the owner or charterer with the respondent Pennsylvania Railroad Company to tow the barge Maurice R. to South Amboy and return to New York after being loaded.
This is clearly shown by the fact that the Maurice R. might have laid at South Amboy indefinitely if a new towage contract had not been entered into for towing the Maurice R. to her destination, to wit, the written order of the libelant mailed to respondent on December 24, 1932.
It therefore seems to me that the respondent Pennsylvania Railroad Company was not a bailee.
The William Guinan Howard (C. C. A.) 252 F. 85, in which the agreement as found by the court was for the round trip from New York to South Amboy and return, including any and all waiting at the latter place, and Doherty v. Pennsylvania R. Co. (C. C. A.) 269 F. 959, in which the court held that the Pennsylvania Railroad Company...
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