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March 18, 1947


The opinion of the court was delivered by: BYERS

The scow Maui was damaged on Sunday afternoon, September 10, 1944, by striking her stern at the starboard corner against the S.S. Jerco Topic lying on the north side of the 30th Street pier in Brooklyn, while the scow was being shifted across the slip, from alongside the ship; the tug Dalzellance did the shifting.

The damage consisted in the complete carrying away of the upper and lower stern bumper logs and some adjacent timbers, and is said to have resulted from the force of the striking, and the rubbing along the side of the ship for some distance, and the apparent catching of the stern starboard corner of the scow on some protuberance on the side of the ship.

 There is no question that the incident occurred, and the dispute is mainly directed to the defense that the scow was so old and decrepit that she could not withstand what is urged to have been an ordinary harbor contact, and was therefore unseaworthy.

 The legal situation was this: The libelant had chartered the scow to the respondent Railroad Company in June of 1944, and following the 16th day of that month she was continuously in service under the charter, until the day in question, i.e., she was not too frail for carrying sundry cargoes during that period of time.

 On September 9th the scow, being laden with 306 tons of steel, was made fast alongside the ship, at the latter's port side about midships, to discharge the cargo, and that task was completed around 10:00 A.M. of the following day.

 A.D.L. & W. tug, the Stroudsberg, with a barge and scow in tow, arrived at the scene at about 3:00 P.M. under orders to take the Maui to Hoboken, but found the tug Dalzellance in the act of shifting her away from the slip, which was about to clear.

 That engagement was directed by the master of the tug, Fred B. Dalzell, who was on the ship, since the undocking was being performed by Dalzell tugs.

 The libel names both the Railroad Company and the tug Dalzellance, and two causes are pleaded:

 The first alleges the charter of the scow to the Railroad Company, i.e., a demise, delivery in good condition, and return in damaged condition not due to ordinary wear and tear, etc.

 The second is against the Railroad Company and the tug Dalzellance, and alleges that, while the scow was under the supervision and control of the former, the tug took the scow 'in tow in order to remove it' (as above stated), and 'the tug was so carelessly and negligently navigated and controlled that it brought the scow into collision with the ship causing considerable damage * * * '. The specifications of fault are conventional, i.e., incompetence, failure to maintain lookout, bringing the scow into collision, and doing nothing to avoid collision. Thus the libelant undertook to prove facts which would absolve the charterer of negligence.

 Process was asked against the tug, etc., and that the Railroad Company be cited to answer etc.

 Since the evidence is clear that the damage was caused by the tug, no reason is seen to order a decree against the Railroad Company, even secondarily. It has gone forward with proof either on its own behalf or in support of the second cause pleaded by libelant, which is sufficient to rebut the presumptive case arising from the failure to return the scow in good order, etc., namely, it has presented the testimony of its employees aboard the Stroudsberg as to the observable incidents of the maneuver, and has thereby exonerated itself, since the shifting of the Maui was not done by it or at its direction; there is no reason to suppose that if the Stroudsberg had been permitted to take the Maui in tow, from alongside the ship as she was intending to do, the purpose would not have been accomplished without damage to the scow.

 The cases cited by libelant to establish secondary liability upon the charterer have been examined and are thought to justify the conclusion above stated. See particularly the discussion in the case of O'Donnell Transportation Co. v. M. & J. Tracy, Inc., 2 Cir., 150 F.2d 735, at page 737, where it is stated that the charterer 'had the burden of going forward with evidence to explain the accident'. This the Railroad Company has done, and since it did not entrust the Maui to the Dalzellance, but was prevented by her from performing its own duties as bailee of the scow, it seems clear that the burden has been sustained.

 The scowman Parachini had left the Maui in good condition on this Sunday afternoon at about 2:15 P.M. and since he was part of that which was the subject of the charter, Dailey et al. v. Carroll et al., 2 Cir., 247 F. 466 (approved in many later cases, and as recently as Smith Scow Corporation v. Seaboard Great Lakes Corporation, 2 Cir., 146 F.2d 535), if ...

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