United States v. Jacksonville Forwarding Co.

• Decision Date: 22 March 1927
• Docket Number: No. 4758.,4758.
• Citation: 18 F.2d 39
• Parties: UNITED STATES v. JACKSONVILLE FORWARDING CO.
• Court: U.S. Court of Appeals — Fifth Circuit

18 F.2d 39 (1927)

UNITED STATES v. JACKSONVILLE FORWARDING CO.

No. 4758.

Circuit Court of Appeals, Fifth Circuit.

March 22, 1927.

Edouard F. Henriques, Sp. Asst. Atty. Gen., Clinton M. Hester, Admiralty Atty., U. S. Shipping Board, of Washington, D. C., and Francis L. Poor, Asst. U. S. Atty., of Jacksonville, Fla. (Wm. M. Gober, U. S. Atty., of Tampa, Fla., and Arthur M. Boal, Admiralty Counsel, U. S. Shipping Board, of Washington, D. C., on the brief), for the United States.

George C. Bedell, of Jacksonville, Fla. (Chester Bedell, of Jacksonville, Fla., on the brief), for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

This is a libel in personam to recover damages occasioned the steamship New Windsor, owned by appellant, alleged to have been caused by the negligence of the tugs Volunteer and St. Johns, owned by the appellee, in allowing that vessel to ground while being towed by said tugs. The parties will be hereafter referred to as libelant and respondent. The District Court found that libelant had not sustained the burden of proving negligence on the part of the tugs, and further was guilty of laches in delaying the bringing of suit for three years, and entered judgment accordingly, to reverse which this appeal is prosecuted.

It appears that the steamship New Windsor, of 5,590 gross tons, 400 feet 5 inches in length, 54 feet 2 inches in breadth, and 30 feet 4 inches in depth, took on a cargo of phosphate at the dock of the Cummer Company at Milldale, a suburb of Jacksonville, on the St. Johns river. She finished loading at 8:30 p. m. July 3, 1920, and at 11 p. m. the same day, with the assistance of the tugs Volunteer and St. Johns, attempted to leave the dock. At that time she was drawing 24 feet 4 inches forward and 24 feet 8 inches aft. There were 26 feet of water in the dock where she had loaded, and a channel about 150 feet wide had been dredged to connect the dock with the main channel of the river. She was lying head in and attempted to back out from the dock into the river with the assistance of the tugs, but also using her own power, with her engines going full speed astern. When she had just about cleared the head of the dock, she went aground in the narrow connecting channel, and was not floated for about two days thereafter, and not until she had discharged 100 tons of fresh water and considerable fuel oil. She then proceeded on her voyage, apparently not having been damaged sufficiently to require temporary repairs to make her seaworthy.

It is contended on behalf of libelant that the undocking of the vessel was solely in charge of the master of the tug Volunteer and that the tugs did not have sufficient power to hold the ship against the current, in consequence of which she went aground on the edge of the channel.

Frost, who commanded the New Windsor, Spaulding, the captain of the Volunteer, the local pilot, Starratt, and Burke, the third officer of the ship, were all on the bridge. Capt. Frost testified that the captain of the Volunteer gave all the orders for the...