United States v. Wessel, Duval & Co.

• Decision Date: 17 September 1954
• Citation: 123 F. Supp. 318
• Parties: UNITED STATES v. WESSEL DUVAL & CO., Inc. and four other cases. THE EDWARD RUTLEDGE.
• Court: U.S. District Court — Southern District of New York

123 F. Supp. 318

UNITED STATES v. WESSEL DUVAL & CO., Inc. and four other cases THE EDWARD RUTLEDGE.

United States District Court S. D. New York.

July 26, 1954.

As Amended September 17, 1954.

J. Edward Lumbard, U. S. Atty., New York City, for libelant Ruth Kearney and Louis F. Greco, New York City, of counsel.

Stanley W. Schaefer and William M. Kimball, New York City, for respondent.

RYAN, District Judge.

Five separate suits in the admiralty were consolidated for trial and it was stipulated that the evidence received would be the record of the trial of each of these suits.

All the claims alleged in these suits arose from the operation of the S. S. Edward Rutledge during the period the vessel was under bareboat charter by her owner the United States Maritime Commission to Wessel, Duval & Co., Inc., a New York corporation.

The Edward Rutledge is a Liberty ship, registered in 1942 at Wilmington, North Carolina. She is a dry cargo vessel, of steel construction, two decks, 422 feet long, 57 feet broad, 35 feet deep; 7,177 gross tons, 4,375 net tons and 10,550 tons dead weight capacity. The vessel was under bareboat charter to Wessel Duval under Contract No. MCc-41846 and Addenda 1-13 from June 3, 1947 until she was redelivered in September 23, 1949. Shortly thereafter the vessel was laid up at Mobile, Alabama.

Wessel Duval time chartered The Edward Rutledge to the United States Department of the Army under three separate contracts:

Contract No. w-16-048tc410 in effect from January 19, 1948 to September 18, 1948;

Contract No. w-16-048tc557 in effect from September 19, 1948 to May 17, 1949;

Contract No. w-16-048tc642 in effect from May 18, 1949 to September 14, 1949.

This last contract was not operative from June 14, 1949 to July 1, 1949 when the vessel was used by the United States Department of the Navy. The vessel was redelivered under the time charter to Wessel Duval in September, 1949.

On January 16, 1948 shipping articles were signed for a voyage of The Edward Rutledge from Mobile, Alabama to European ports via Cuba and return. The vessel then proceeded from Mobile to Cardenas, Cuba where she was delivered to the United States Department of the Army under time charter No. w-16-048-tc410 on January 19, 1948. During the period from August 5, 1947 to the date of departure from Mobile the vessel had been in United States ports the following times:

August 5-August 13, 1947 — Mobile, Ala October 4-October 10, 1947 — Mobile, Ala October 11-October 14, 1947 — Pensacola, Fla January 7-January 17, 1948 — Mobile, Ala.

At Cardenas a cargo of sugar was loaded for carriage to Germany. After the loading and on January 26, 1948 while undocking The Edward Rutledge stranded in soft mud. She was departing for Havana, she had pilots aboard; lines were cast off the dock at 5:18 p. m.; five minutes later she was clear of the dock; at 5:30 p. m. she was aground in soft mud. There were no tugs available; lines were run to the dock with the assistance of a launch and by heaving on the lines she was pulled off the mud and moored alongside the dock. She waited for daylight as there was no night navigation out of the harbor. The water was not deep enough to permit examination of her bottom by a diver, but from such inspection as could be made under the circumstances it was determined that the vessel was safe and seaworthy to proceed to Havana. The following morning — January 27 at 7:44 a. m., — she was again undocked and put on slow astern; a line fouled her propeller and the engine was stopped. At 8:52 a. m. the vessel was put on full ahead, at 9:01 a. m. she was on full speed astern on the telegraph but the engine went ahead; the order was repeated on the telegraph, and at 9:03 a. m. the vessel again went aground on soft mud, this time forward and the engines were stopped. Again, a launch was employed to take lines ashore to the dock but efforts to free her and get her afloat through the use of lines and the engine were not successful. The Master decided to wait until the tide came in; at 6:25 p. m. lines were again sent to the dock and finally at 9:45 p. m. the vessel was afloat and anchored for the night; a survey of her then made found her fit to proceed. At last on January 28, 1948 at 7:20 a. m. the vessel departed for Havana arriving at 5:45 p. m. the same day.

At Havana a diver removed parts and pieces of a line from the propeller and after examination of her bottom while she lay in water and after survey an underwriter's certificate of seaworthiness issued subject to dry dock at the owner's earliest convenience. After completing the loading of her cargo at Havana the vessel departed on February 5, 1948 to Germany. The cargo was discharged at Bremerhaven, and before she departed for Cuba and while at Bremerhaven she was surveyed on March 1, and 2, 1948 and given a further underwriter's seaworthy certificate. En route, instructions were received to proceed to Santiago, Cuba and she arrived there on March 26, 1948.

On the return voyage the Rutledge on approaching Santiago passed to the west of Hogsty Reef and navigated using Chart 0948.

At Santiago, she loaded 60,000 bags of sugar which were received on board in good order and condition; the loading was completed at 4:10 p. m. on Saturday, April 10, 1948. The vessel had cleared for Kingston, Jamaica for bunkers and thence to Germany where the sugar cargo was to be discharged; this was voyage No. 4 of the vessel under the bareboat charter to Wessel Duval.

Before she sailed from Santiago and about 8:10 p. m., April 10, the Chief Officer William Noll dropped dead. After the Master had made arrangements for proper disposition of the body and the the effects of the deceased, the vessel sailed at 1:47 a. m. Sunday morning — April 11 — for Kingston without having obtained a replacement for the dead mate. She secured to the oil dock at Kingston at 11:50 a. m., April 12, completed bunkering at 7:20 p. m., cast off at 9:35 p. m., dropped her pilot and departed for Germany at 11:05, p. m., on April 12, 1948. The next morning at about 5, nine stowaways were found on board; she returned to Kingston, landed the stowaways and finally sailed at 1:15 p. m. on April 13, 1948.

The Edward Rutledge, delayed by her return to Kingston, was obliged to navigate through a large part of the Bahamas at night instead of going through in daylight. The Master had laid the course from Kingston to pass to the east of Hogsty Reef and out through Caicos Passage. The night was dark and clear, the moon obscured by clouds, the sea moderate, wind force around 4 or 5. A bearing was taken at 9:15 p. m. on April 14, at Southwest Point and from then on the vessel proceeded by dead reckoning. The projected course of The Edward Rutledge would have brought her close enough to the location of Hogsty Reef Light to have enabled those on board to see the light if it had been functioning. She was being navigated on the theory that Hogsty Reef Light was lighted; in fact it had been discontinued on July 27, 1947.

The Edward Rutledge went aground on Hogsty Reef at 2/08 a. m. on April 15, 1948. After the stranding the vessel and her cargo were salved by Merritt, Chapman Scott Corp. and Merritt Chapman Lindsay, Ltd.; 7,826 bags of the sugar cargo were necessarily jettisoned in the operation. The vessel after being salved was obliged to put back to Havana, and although she had been pulled off Hogsty Reef was able to proceed to Havana under her own power. There, after underwriter's survey and on surveyor's recommendation temporary repairs were made. On May 5, 1948 The Edward Rutledge was given an underwriter's certificate of seaworthiness to proceed to Germany. The United States loaded the vessel while she was being repaired with about 9,046 bags of sugar to replace those which had been jettisoned. She left Havana for Germany on May 6, 1948. Shortly after leaving port her condenser lost vacuum and she put back to Havana. She again set sail on May 11, 1948 for Germany with a further underwriter's certificate of seaworthiness given her that day. She finally arrived at Bremerhaven on June 2, 1948, and while her cargo was being discharged she was surveyed and granted an underwriter's certificate of seaworthiness to depart for New York with a partial cargo.

The remainder of the vessel's service under the time charters to the United States appears to have been uneventful insofar as it gave rise to the claims asserted in these five suits, save only that in November, 1948 at Seattle, Washington, the holds of the vessel were cleaned, and that a claim for charter hire has been made by Wessel Duval for the period July 9, 1948 to August 12, 1948 when the vessel was laid up for repairs occasioned by the Hogsty Reef stranding and the additional "fringe" claims hereinafter referred to.

It is from the foregoing that the litigation now before us flows.

The first of these suits was filed by — (1) Merritt-Chapman & Scott Corporation, Libelant v. United States and Wessel, Duval & Co., Inc., Respondents, United States, Respondent-Impleaded, Wessel, Duval & Co., Inc., Respondent-Impleaded. (A. 163-394). And, (2) Merritt-Chapman Lindsay, Ltd., v. United States of America and Wessel, Duval & Co., Inc., United States of America, Respondent-Impleaded. (A. 164-153).

These libels were filed against the United States as the owner of the cargo and against Wessel Duval as bareboat charterers of The Edward Rutledge, claiming award for salvage services rendered the vessel in freeing her from Hogsty Reef.

Apparently the Merritt-Chapman interests had some doubt as to which of their companies would be a proper libelant; they filed two separate suits as a protective measure. However, the reasons which prompted the separate suits are now immaterial; the claims of both Merritt-Chapman companies have been settled and they are no longer interested parties. The pleadings and the decrees of settlement in both are parallel.

The settlement was...