The opinion of the court was delivered by: INCH
This is a suit in the Admiralty. The libellant, New York Trap Rock Corporation owns the scow Theo Tallaksen, and chartered her to the respondent, Christie Scow Corporation during the period from December 30, 1944 to February 22, 1945.
The scow, while seaworthy and under the above charter, was sunk twice, first, on the night of January 24, 1945, at the foot of 54th Street, Brooklyn, and then, after having been raised, she sank a second time on February 18, 1945, while in tow of the tug Metropolitan No. 1. This second sinking involved parties other than those concerned with the first, with the exception that at all times during these sinkings the scow was under charter to the Christie Scow Corporation.
Accordingly, the circumstances surrounding both sinkings were properly shown in this single suit by libellant against the charterer. The latter impleaded the various parties alleged to be responsible for each of the sinkings and a single decree will dispose of the case. The extent of the damage caused by each sinking is a matter for the commissioner, as libellant is entitled to a decree.
I find that the scow when chartered was seaworthy and in good condition and was returned in a damaged condition not due to ordinary wear and tear. It is necessary therefore to take the circumstances surrounding, and the various respondents involved, in each sinking, as if these were separate causes of action. The first sinking is the most important. I refer to the sinking on January 24, 1945, at the foot of 54th Street, Brooklyn.
For convenience, I shall hereafter refer to the impleaded respondents as follows: The first sinking, Moran Towing Corporation as, Moran. A. & A. Stevedoring Company as, Stevedore. The second sinking, McAllister Lighterage Line, Inc., charterer of the tug, as, McAllister. Metropolitan No. 1 as, the tug. As to both sinkings, the charterer, Christie Scow Corporation as, Christie.
The charter of libellant with Christie was the usual charter, for an indefinite term at an agreed rate of hire. Christie, in turn, entered into an arrangement with Moran, about which there is considerable discussion in the briefs between Christie and Moran, but which it is unnecessary here to construe in definite terms, it being plain enough that Moran would be liable if negligent in failing to use reasonable care to place the scow or leave her in a berth reasonably safe.
Accordingly, the issue narrows down to whether Moran or the Stevedore, either or both, were negligent in causing the first sinking. A brief summary of the facts found by me is as follows:
On January 23, 1945, the scow was towed, by orders of Moran, to the foot of 54th Street, Brooklyn, and placed alongside a steamship which was there moored on the north side of the pier. This pier is approximately 573 feet long. The pier to the north at the foot of 53rd Street, is 199 feet long. The slip between these two piers was approximately 100 feet wide. This slip was exposed to a northwesterly wind. When the scow arrived alongside the steamer it was first placed, bow in, abreast of the No. 4 hatch, on the port side of the steamer, as she also lay bow in. The Stevedore thereupon began unloading, from the steamer, sand and gravel ballast. After about 200 tons had been taken from the steamer and loaded on the scow, starting at the middle and working aft, and about 3 o'clock or so in the afternoon, further loading was suspended as the weather was bad, being quite windy, with rough seas in the slip. The next morning the scow was moved further alongside of the steamer to hatches 2 and 3 and some more ballast was unloaded, but by early afternoon the storm became so severe that no work could be done and thereupon repeated notice was given to Moran, and to Christie, who in turn notified Moran, that the scow should be taken out of this berth as it was 'plainly dangerous' and 'will cause her to sink'. Nothing was done by Moran and the scow did sink the night of the 24th.
The weather was bad enough on the 23rd, and there is evidence showing that Moran should have realized that the scow was berthed in a dangerously exposed berth in case of a northwest storm, which would naturally cause heavy swells in the slip.
To be sure, when this weather condition, evident on January 23rd, finally built up to its greatest intensity late in the day of January 24th, it may have been too late, because of the storm and the freezing temperature, to save the scow and possibly this fact is now relied on by Moran to exculpate itself from a situation caused by the failure to previously exercise reasonable care for the safety of the scow.
The testimony of the various witnesses requires careful consideration as to the dates of occurrence, but certain facts appear and these, in my opinion, relate to what took place prior to the night of the 24th, when the scow was sunk by the storm. In my opinion, the Stevedore did everything possible to prevent the loss of the scow. I find nothing wrong in the loading of the scow and in fact employees of the Stevedore risked the life of one of their number in an attempt to replace the hatch cover of a small hatch in the stern of the scow, which the severe storm and waves had removed.
Accordingly, the petition should be dismissed as to the Stevedore. But a different situation exists as to Moran. The location and possible danger of this berth for the scow was known to Moran, or reasonably should have been. Likewise, was the consition of the weather.
When the Moran tug placed the scow alongside the steamship, it should have placed her bow out instead of leaving her stern to face the open slip. Both the scow captain and the scow captain of another barge state this fact, for the reason that the scow is higher at the bow than at the stern, and the usual loading of the schow followed by the Stevedore started at the middle and worked aft. Even if this is not so originally, although I think it was, reasonable care would have indicated that the tug, as Nicholson testified, 'could have towed him (scow) to the end (of the slip) and turned around'.
However, if this placing of the scow, stern out, would not be considered negligent, it was negligence on the part of Moran not only to place her, as he did, in this exposed slip under the prevailing weather conditions, but the following afternoon he was repeatedly notified of the increasing danger to the scow and apparently did nothing during ...