The opinion of the court was delivered by: KENNEDY
These cases were tried together. In the first case the libel alleges that the respondent Evans Transportation Corp. chartered the scow C. W. Crane, which is owned by libelant, on September 2, 1943, and returned the scow in badly damaged condition of September 29, 1943. The Evans Transportation Corp. took the necessary steps to implead the Seaboard Great Lakes Corporation on the ground that the Seaboard Great Lakes Corporation had sub-chartered the same scow from Evans on September 27, 1943. Seaboard then impleaded M. J. Rudolph Co., Inc., asserting that the cause of the disaster was improper loading.
In the second case the U.S. Commercial Company asserts in its libel that the scow C. W. Crane, her owners, the charterer and sub-charterer, and the stevedore were jointly responsible for the loss of the cargo which had been put on the C. W. Crane on September 29, 1943. The libel against the C. W. Crane is in rem.
The cargo consisted of ore which was being removed from the S.S. Harpalycus at Pier 33, Brooklyn. Libelant U.S. Commercial Company alleges that it employed Seaboard to receive, transport and deliver 2,500 tons of ore from the Harpalycus to the Central Railroad Company of New Jersey at Jersey City. Seaboard admits that it was requested by Furness Withy & Company to remove and transport the ore, and that the C. W. Crane was one of the vessels supplied by it.
On September 1, 1943, the president of Evans Transportation Corp. telephoned to Zeller Marine Corporation (agent for libelant) and as a result of this communication chartered the C. W. Crane for an indefinite period at the rate of seventeen dollars per day. The charter included the services of the scow captain. The C. W. Crane was inspected by the superintendent of C. W. Crane Co., Inc., on August 28, 1943, or five days before she was turned over on charter to Evans. Prior to the commencement of this charter, and in January, 1943, the C. W. Crane was completely overhauled in drydock. Between January and August, 1943, she was carrying sand and ballast and general cargo, and on August 28, 1943, when she was examined both inside and out by the representative of her owners, she was loading oil and had on board some 13,000 five-gallon cans.
The C. W. Crane is 115 feet long and her beam is 35 feet. She is a deck-scow with raked ends and has cargo bulkheads on each end. Her living quarters are aft. She has a capacity of about 850 tons and is eleven or twelve years old.
Between September 2, 1943, and September 27, 1943, the C. W. Crane made four trips between Port Johnson and New York City piers loaded with vehicles. She never carried a load at any time during that period anywhere near 850 tons.
On September 27, 1943, Evans
received an inquiry from Seaboard concerning the possibility of supplying boats to remove 1,200 tons of ore from S.S. Harpalycus. Evans then communicated with the agents representing the owners of the C. W. Crane and asked about her capacity. He was told she would be able to take 600 tons of ore, and Evans then sub-chartered the C. W. Crane to Seaboard. On September 27, 1943, the C. W. Crane was at Pier 14, North River. A tug called the American Eagle which was being operated by Seaboard picked up the C. W. Crane and another scow, Metropolitan 150, and towed them to Pier 33 Atlantic Basin, Brooklyn. The Harpalycus was starboard side to. A scow called the Shamrock was lying alongside of her bow, and upon her arrival the C. W. Crane tied up to the Shamrock. Later, on the afternoon of September 27th, the C. W. Crane was shifted by a steam lighter operated by the stevedores' respondent, M. J. Rudolph Co., Inc. Eventually, on September 28th, the C. W. Crane was placed alongside of the Harpalycus and the Metropolitan 150 was moored outboard of the C. W. Crane. The stevedores commenced loading ore on the C. W. Crane on the afternoon of September 28th and worked until about 8 p.m. on that night. The ore was loaded in three piles pretty much the same height. The tops of the piles were lower than the cargo bulkheads on the C. W. Crane. The scow was not listed at that time and had merely an average drag aft. Her freeboard was about six feet at the stern, and a little more at the bow
The bargee of the C. W. Crane testified that at about 11 o'clock on the evening of September 28, 1943, the velocity of the wind increased and the Crane commenced to grind into the side of the Harpalycus. This bargee, Shankland, testified that on the morning of September 29th he called one Doyle, representative of Seaboard, and told him that the scow was in a rough spot. Shankland said that Doyle told him to communicate this information to Evans Transportation Corp. Shankland said he did this and told Mr. Evans not only that he was in a bad spot but also that the Metropolitan 150 was leaking. Shankland attributed the grinding of the C. W. Crane against the Harpalycus not only to the wind but also to heavy traffic in Buttermilk Channel. He admitted that he did not communicate his condition to his owners, but said he called Seaboard because he knew that that company had his scow under charter, and that they had a tug which could take care of the situation. At any rate, on September 29, 1943, the Crane was shifted from the stern to the bow of the Harpalycus and loading was resumed. At about 5:45 p.m. on September 29th, when the C. W. Crane had between 400 and 500 tons of ore on board, Shankland heard a hissing noise in the hold. He then discovered that he had a leak. Having discovered the leak, Shankland attempted to caulk it with oakum. Since he did not have enough oakum on board he went over to the Metropolitan 150 and secured some there. He then stopped the loading and telephoned to Doyle. Doyle told Shankland that he could not get in touch with the American Eagle for about an hour. As a matter of fact, the tug arrived at about 6:45 p.m. on September 29th. The captain of the American Eagle came on board the C. W. Crane and looked down the hatch. He then put his siphon into the port after corner of the C. W. Crane, although the scow at that time was listed to starboard.
It is quite clear in the evidence that the siphon was defective. The fact is that earlier on the same day, namely, from 2:30 p.m. to 3 p.m., an attempt was made to pump out the Metropolitan 150 with the same siphon. It is obvious that the captain of the American Eagle knew that it was not in good working condition because he left the Harpalycus and got a gasoline pump in Greenpoint which he brought back to the Metropolitan 150. Kivlan, the captain of the American Eagle, said he was afraid the Metropolitan 150 might sink while his tug was away, which explains his leaving the gasoline pump. I believe, however, that he got that pump because his own siphon was not in working order and that he knew it. Not only did it blow steam at the joints; it did not pump any appreciable quantity of water. Realizing this, the captain of the American Eagle, after using that same siphon on the C. W. Crane for a short time, attempted to get assistance from the tug Julia F. Moran which happened to be passing by. He then put a line on the C. W. Crane and pulled her stern away from the Harpalycus. Shortly after that, the C. W. Crane careened to starboard. At that time Shankland, the scow captain, was on board the American Eagle.
It is clear beyond dispute that there was no fault on the part of Rudolph and I shall, therefore, make no further reference to that respondent. It is also clear that neither the owners of the C. W. Crane nor Evans is chargeable with any negligent conduct which was a proximate cause of the disaster. Really, the principal question for decision is when and why the C. W. Crane became unseaworthy.
Seaboard urges that either the scow was unseaworthy in the hands of Evans, or she became so as a result of the neglect of the bargee during September 28th and September 29th. To support its contention, Seaboard relies in part upon the presumption of unseaworthiness that arises when a vessel sinks in calm water. It also argues that because of his failure to use his pumps, the bargee, the servant of the owner, was responsible for the sinking. Actually, the decision in these cases turns upon the resolution of a pure issue of fact. The briefs of counsel are in complete accord concerning the law applicable to cases like this.
Seaboard complains that there is no adequate proof that the C. W. Crane was seaworthy when she was delivered to Evans, and that this dearth of proof, coupled with the presumption of unseaworthiness which I have mentioned, causes the loss to fall on the scow and her owners. However, there is proof in the record that on August 28th, five days before she went on charter to Evans, the C. W. Crane was in good condition. The witness Kenny testified that he made an inspection on that date, at a time when the C. W. Crane was partially laden. He examined her inside and out, and found no evidence of leaks or other defective condition. It is quite inconceivable to me that on August 28th or September 2nd the starboard stern corner of the C. W. Crane was in anything like the condition disclosed by the photographs in evidence, which were taken after the survey. I acknowledge that the mere fact of satisfactory service by the scow between September 2nd and September 27th is not conclusive evidence that such a leak did not exist. However, it is far more probable that the condition which led to the disaster arose on the night of September 28th and the morning of September 29th, and was caused by the scow grinding against the Harpalycus.
It is true that the weather report showed nothing like wind of gale velocity. But the scow's berth was exposed to the swells of Buttermilk Channel, and her bargee attributed the grinding to this in part, at least. Curiously enough Doyle, who was called as a witness by Seaboard, said that such grinding was not unusual at Pier 33, although he later said he was talking about the berth at Pier 33 under severe weather conditions
But more important than all of this is the series of events which took place during the morning and early afternoon of September 29th. There can be no doubt that the bargee telephoned both to Doyle and to Evans on the morning of that day, and warned them that the scow ought to be moved. Evans was vague about any such conversation, but did not really deny that it had taken place. Doyle, in his testimony, at first made no reference to any such telephone call, but later admitted having received a call from the bargee on that day, although he placed it in the afternoon.
I believe the bargee called Doyle, both in the morning and in the afternoon of September 29th,
and that Seaboard could have prevented the disaster.
Another practically undisputed fact which sheds light on this controversy is the fact that the Metropolitan 150, lying just outboard of the C. W. Crane, was also in difficulty. And as early as 3 p.m. on that day it is clear that Kivlan, the master of the tug American Eagle, and servant of Seaboard, knew that the Metropolitan 150 was in sinking condition, and knew that his siphon was useless. This is demonstrated by his trip for the gasoline pump which he left on the Metropolitan 150. I know there is nothing in the evidence to show what condition the Metropolitan 150 was in before September 29th. I merely mention the matter because it is quite consistent with the story told by the bargee of the ...