THE MAURICE R. SHAW, 526

• Decision Date: 24 September 1942
• Docket Number: 529.,No. 526,526
• Citation: 46 F. Supp. 767
• Parties: THE MAURICE R. SHAW. MAINE SEABOARD PAPER CO. v. THE MAURICE R. SHAW et al. SHAW v. MAINE SEABOARD PAPER CO.
• Court: U.S. District Court — District of Maine

46 F. Supp. 767

THE MAURICE R. SHAW.

MAINE SEABOARD PAPER CO. v. THE MAURICE R. SHAW et al.

SHAW v. MAINE SEABOARD PAPER CO.

Nos. 526, 529.

District Court, D. Maine, N. D.

September 24, 1942.

Cook, Hutchinson, Pierce & Connell, of Portland, Me. (Leonard A. Pierce and Nathan W. Thompson, both of Portland, Me., of counsel), for Maine Seaboard Paper Co.

Verrill, Hale, Dana & Walker, of Portland, Me. (Robert Hale, of Portland, Me., and Thomas F. Mount (of Rawle & Henderson), of Philadelphia, Pa., of counsel), for Larnie B. Shaw and another.

PETERS, District Judge.

The Maine Seaboard Paper Company in its libel in rem charges that the tug-boat which it chartered from Shaw, the owner and claimant here, was in such bad condition as to its engine equipment, —contrary to warranties in the charter, —that she broke down on a voyage, causing the Paper Company damage in loss of use of the boat and expense for repairs, which it seeks to recover.

The cross-libel in personam by Shaw alleges that the boat when chartered was in the good condition she was agreed to be in and that the break-down and expense of repairs and a subsequent disaster in the breaking of the crank-shaft were caused by the negligence of the Paper Company, —a breach of the charter for which he wants damages.

From the evidence I find the following facts:

The Paper Company chartered the tug to tow barges loaded with pulpwood from Eastern Maine and Canadian ports to Bucksport, the location of its mills, during the season of 1939. The tug-boat was delivered to the Paper Company's captain at Philadelphia on April 22nd, 1939, a "bareboat charter" having been signed April 8th of that year. The owners of the tug stipulated that the chief engineer should be a man named by them, being, as they said, competent and familiar with the engine, and he was employed by the charterer and remained with the boat throughout, except during a short illness. With Captain Hicks in charge the boat proceeded from Philadelphia to Rockland, Maine, where it picked up the barge "Helvetia", owned by the Company, and continued to New Brunswick for a load of wood to be carried to Bucksport.

Captain Hicks made five trips from the Bay of Fundy to Bucksport with the tug and loaded barge, apparently without incident, when on the sixth trip the trouble began which resulted in this litigation.

On May 27th the tow left Magaguadavic River for Bucksport in rather bad weather but reached Quoddy Roads the next forenoon and anchored. Towards night, the strong wind having lessened somewhat and the tide being favorable, the captain decided to continue the voyage and, although there was a heavy sea and dense fog, raised the anchor and laid his course for the whistling buoy off Little River. About 9 p. m., in the vicinity of the buoy, about two hours from East Quoddy, the engineer reported to the captain that the engine was getting water in the lubricating system; that the engine was not being injured, but that it would not be prudent to stop to listen for the buoy, as usual, because it might not be possible to start the engine again. At somewhat reduced speed a point in the vicinity of Libby Island was reached, the tide being then ahead, the sea heavy and the fog still dense. At 11:30 p. m. the engineer reported the engine trouble getting worse and suggested going into Machias Bay. The captain decided that was not feasible and, as there was too much water to anchor, and as the engine was still operating and the engineer said the engine was not being injured, the captain decided to try to work more off-shore, out of the tide and in more sea-room. This was accomplished when at about five a. m. May 29th the bearings commenced to burn and the engine was necessarily shut off. The fog clearing up in a few hours the captain sent a dory ashore to Cranberry Isle Life-Saving Station for help, which came in the form of another tug, by which later the disabled tug was taken to Bucksport and thence to the Boyce Machine Shop in Portland where it was found that parts of the engine were worn out and replacements and repairs badly needed. The extent and nature of the defects in the power equipment which were disclosed when the engine was dismantled are in dispute, but there is no doubt that the cylinders were so worn that they had to be replaced with new ones and the main bearings which held the shaft had worn to the extent of requiring re-boring of the engine base and new bearings to be installed. These and other repairs and replacements were made by the Boyce Machine people, with the consent of the Shaws. The cost was around $14,000, paid for by the Paper Company, which received $4,500 from the insurance carried for the benefit of both parties.

The work at the machine shop took considerable time (from June 8 to July 21) due largely to the difficulty in getting the repaired engine to run without heating up, but finally, after installing what seems to be a double oiling apparatus, the engine was called fit to run and the tug went into service again and ran until November 21, when, the boat being at the dock in Bucksport with the engine idling preparatory to starting on a trip, the crankshaft broke. This ended the...