The opinion of the court was delivered by: BYERS
In this cause the libelant seeks to hold the Diamond P. Transportation Company in personam and the tug Lizzie D. Shaw in rem for the loss of 1009 tons of No. 2 rock salt laden on the barge Rob Roy as to which there was a total loss; and for water damage to 500 tons of the same commodity laden on the barge Howard E.
The facts are simple and with few exceptions are not in dispute.
These cargoes were laden at Columbia Street, Brooklyn by direct discharge from the motor vessels I.L.I. 102 and 103, respectively, on September 30 and October 2, 1933. Transportation had been froim Detroit in the motor vessels, and the destination was Carney's Point, N.J.
The barges were moved to Red Hook Flats, and there the tow was made up and the voyage begun on October 4th at about 4:00 a.m. The Rob Roy was the lead barge and only these two were in the tow.
Short hawsers were taken until the Narrows had been passed, when they were paid out to 150 fathoms as to each hawser.
The wind was from the east to northeast at a velocity of from 15 to 20 miles per hour, and no storm warnings or rough sea have been shown.
Scotland Light was passed on the port hand at from one-eighth to one-half mile at about 7:30 a.m. The course was then changed for the run down the Jersey coast to west by south, and the tow proceeded at a distance of from three to five miles off-shore.
At about 11:00 a.m. the Rob Roy began to take in more than the customary amount of water; her captain said she began to leak, and he signaled the tug, by use of a mechanical horn, so to indicate. His pumps were working and able to take care of the water so made; at about 1:30 p.m. one of his pumps became choked with salt and he could not clear it; he again signaled in the same way, but there was no indication that the tug made out the signal. At about 3:00 to 3:30 o'clock the other pump similarly clogged and the barge was thus rendered incapable of clearing herself of the water which was coming into the hold from below. The captain went down to investigate but could not see where the water was entering; he thought she must have opened a seam because she was tight, he said, when the voyage started. He also tried to clear the pumps, but failed.
The barge again signaled the tug, by sounding 7 short blasts on the horn, but again no attention was paid. Then the captain flew a distress signal forward, and presently the tug came about into the wind and approached the barge.
The barge captain got an axe and indicated his intention to cut the hawser leading to the tug; he then cast it loose, and he and his crew (two other men) got into the lifeboat which had been lowered and made fast astern, and the three made their way to the tug, in its lee.
At this time the barge captain said that seas were boarding his vessel as she lay in the trough and that she was sinking. He considered that she would sink at least by midnight, and was unwilling to risk his own life or that of his companions by staying on board after dark. Before leaving his vessel, he cast off the hawser to the Howard E. and also put over an anchor with 60 fathoms of chain.
His vessel sank at about 5:00 a.m., as estimated, of October 5th, after the tug had proceeded back to New York with the Howard E., where safe arrival was had inside Sandy Hook at about 1:00 o'clock in the morning. The 500 tons of salt on the latter barge suffered some water damage due to leakage on the return trip. These are the circumstances giving rise to the litigation.
The pertinent facts will be developed somewhat more in detail in connection with the various arguments which have been adduced.
For the owner of the barges, it is urged, first, that there can be no recovery against it, because there were no contractual relations between the libelant and the Transportaion Company; second, that the barges were shown to have been seaworthy on breaking ground; and finally, that the tug was guilty of neglect in acquiescing in the abandonment of the Rob Roy without making any effort to ascertain or correct the conditions said to have existed on board or to tow her to a port of refuge.
The tug argues that unseaworthiness of both barges has been shown, and that she was without fault.
The libelant relies upon the unseaworthiness of the barges and the same faults which are attributed to the tug by the owner of the barges.
It will be convenient to examine the question first above stated with reference to the libelant's right to proceed in personam against the owner of the barges.
In this connection, the libel alleges that the said cargo was delivered to the respondent in good order and condition from the said motorships "to be transported by respondent from Columbia Street, Brooklyn, to Carney's Point, New Jersey, in consideration of an agreed freight, and there to be delivered to libellant or order in the same good order and condition as when shipped * * * That respondent, in violation of its obligation as bailee for hire to safely transport" failed to make delivery, wholly as to so much of the cargo as was laden on the Rob Roy, and only in a damaged contion as to the balance on the Howard E.
There is no allegation of unseaworthiness of the barges.
The facts are that shipment of the salt from Detroit to Carney's Point, N.J., was contracted for between libelant and National Motorship Corporation, but the contract is not in evidence; the latter corporation arranged with James Hughes, Inc., to provide transportation from New York City to destination.
The respondent pleads in its answer that these cargoes were loaded on these barges "in accordance with an oral contract of carriage between Diamond P. ...