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March 21, 1938

Harold L. VALENTINE, owner of the Barge Rose T., Libellant,

The opinion of the court was delivered by: INCH

Apparently this is but one of several admiralty suits arising from a storm which took place during February 21, and February 22, 1937, at Greenville, New Jersey, causing damage to certain so-called 'market boats'.

By a market boat is meant 'a boat that is loaded with coal at South Amboy, with no destination or consignee'. Such boats are loaded with coal so as to release the railroad cars, but, as the coal has not at that time been sold to a consumer, the boat is put up either at Communipaw or Greenville as a convenience to either the shipper or consignee and there awaits a sale. The barges sometimes wait at Greenville for a customer as long as 'five or six months'. No extra charge for this convenience is made.

Libellant is the owner of the barge Rose T., which sank, in the early morning of February 22, 1937, in the slip between the covered pier and the long dock at Greenville, New Jersey, on the south side of the long dock up near the bulkhead.

 When her load of coal was taken off and she was raised and examined she was found to have sustained, from some cause, certain damage on her starboard corner stern and at the bow.

 An expert witness testified that, in his opinion, this damage at the stern had been caused, 'by some object contacting that corner while in motion.'

 Libellant has sued the respondent on the theory that the respondent is liable for such damage and loss because the facts and the law placed upon it a continuous obligation of care for this barge and that it failed to give proper and adequate protection to her.

 Another reason given for this liability arises from an alleged collision between one of respondent's lighters which had been moored on the south side of the long dock and which broke adrift in the same storm, as to which libellant claims no adequate explanation has been made by respondent.

 The respondent disclaims any liability, denies that there was any collision and asserts that the Rose T., sank because of the negligence of her captain and in spite of the exercise of any care imposed on respondent.

 As in many admiralty suits the first task is to ascertain the true facts. With these ascertained the application of the law presents less difficulty.

 Possibly the first of such suits tried is that of Burns Brothers against the Pennsylvania Railroad Company, tried before Judge Campbell on or about January 6, 1938 (not reported. Eastern District, Admiralty 15715), whose opinion sufficiently indicates to me what the law also should be in this suit before me. Not only are the facts substantially the same, but I agree with a Judge Campbell, that there is a different responsibility resting on respondent at Greenville from that during the loading and towage.

 Moreover, unless plainly necessary, it is important that as to an occurrence such as we have here, there should be no disagreement as to the law applicable between judges of the same district.

 Accordingly, If find that there were two separate contracts. The first was made in New York by Peterson, representing Burns Brothers, with Crowley, the tug dispatcher of the respondent. This was 'in the afternoon of February 10, 1937.' This contract covered a two of the barge Rose T., from New York to South Amboy. It terminated when the Rose T., was left properly moored at the stakes at South Amboy, February 11, 1937.

 Thereafter a second contract was made by the Steamship Fuel Corporation which embraced taking the barge from the stakes at South Amboy to the loading pier and after loading, towage to either Communipaw or Greenville, pursuant to the general procedure in effect as to such market boat.

 As the Rose T., was a Burns Brothers' chartered boat such procedure indicated Greenville as the convenient waiting place for such chartered boat.

 Therefore, as Judge Campbell held, in the Burns Brothers' case, and as I likewise find in this case, libellant cannot recover by merely showing that the Rose T., was in good condition, as she undoubtedly was, before the towing from New York started and that she was damaged by the storm in Greenville. The proof here, as in the Burns case, shows that when she arrived at Greenville she was placed in a usual and reasonably safe berth, her captain was on board, she was properly moored with many other boats of the same class, the weather was fair, with no indication of storm.

 The Rose T., was not damaged during the towing of the boat to South Amboy or while taking on coal or while being towed to Greenville. There was no direction to take ...

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