The opinion of the court was delivered by: KENNEDY
Libelant seeks to hold claimant-respondent Conners for the loss of a cargo of molasses on August 19, 1943, laden into the barge Mary M. shortly before she careened at what is known as the 'sand dock' at Buffalo, New York, and also for a portion of the cargo of the barge Margaret M. which was jettisoned as a result of the careening of Mary M. As I have indicated in the findings of fact, I believe that libelant has sustained its burden (Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 62 S. Ct. 156, 86 L. Ed. 89) to prove that Mary M., operating under a contract of private carriage, was unseaworthy when she broke ground. The physical condition of Mary M. at the time lading was commenced, and the fact that shortly after it was terminated she careened and sank in calm water, make it highly probably that the unseaworthy condition of the barge was, as I have found, the proximate cause of the disaster. I am not here left in doubt on this point, as Judge Leibell was in the Commercial Corp. case. The T. N. No. 73, 1939 A.M.C. 673 not officially reported. It is suggested by claimant-respondent Conners that the failure of the bargee to operate his pumps during the lading may have been at least one proximate cause of the disaster, but I reject the suggestion. Everything indicates that, although the bargee did not pump on that day, he was constantly at his post while the molasses was being taken aboard, and during the short voyage afterward to the assembly point for the New York voyage. It is, therefore, likely that he would have noticed any gradual increase of water in the hold of the barge. And the circumstances of the sinking itself point very strongly not to a gradual seepage of water, but rather to a comparatively sudden flooding of the hold. In other words, even though Mary M. had carried cargo in safety on voyages shortly prior to her last, she seems to have 'faded away' under conditions that any seaworthy barge in this service would be called upon to meet.
If I am right in this, then there should be no limitation of liability (Cullen Fuel Co. v. W. E. Hedger, Inc., 1933, 290 U.S. 82, 54 S. Ct. 10, 78 L. Ed. 189). Libelant urges that if Conners were entitled to limit, it would be necessary to surrender not only Mary M. but the other barges, three in number, and the tug, all in the same ownership and all engaged in the same enterprise, in order to satisfy the requirements of the limitation statute (Cf. Sacramento Nav. Co. v. Salz, 1927, 273 U.S. 326, 47 S. Ct. 368, 71 L. Ed. 663, approving and relying upon The Columbia, 9 Cir., 1896, 73 F. 226). I believe that all the barges and tugs were, in fact, engaged in a common marine enterprise, but, since I have denied limitation because the warranty of seaworthiness was breached, I do not reach the question of what it would be necessary to surrender if limitation were granted.
One more point, made by the claimant-respondent, deserves attention. On the day before the careening, Mary M. was casually inspected by a representative of the insurance carrier, which was about to assume, and did assume, the risk both on hull and on cargo. It is apparent that prior to suit the cargo underwriter 'loaned' libelant Pfizer some very large percentage of its loss. Cf. Luckenbach v. W. J. McCahan Sugar Refining Co., 1918, 248 U.S. 139, 39 S. Ct. 53, 63 L. Ed. 170, 1 A.L.R. 1522. Conners, therefore, urges that the inspection was made by an agent of the real party in interest (the cargo underwriter) and operates as a waiver, or perhaps as an estoppel, to nullify the warranty of seaworthiness. The story of the inspection itself, and the circumstances under which it was made, indicate to me at least that there was no intention on the part of anybody that it should have the legal result now ascribed to it. To call that inspection casual would be to understate the matter. It certainly would not have revealed latent defects. And, apart from that, there is no inconsistency between such an inspection by a cargo underwriter, or a hull underwriter either, and insistence at the same time on the warranty of seaworthiness as between the principals to the contract of carriage. Nor is there any reason why an equivocal act like an inspection of that sort should whittle down rights under the warranty of seaworthiness, even in the absence of intention of the parties. I should think a rule like that would be detrimental to commerce.
This suit having come on for trial in its regular order on the pleadings and proofs of the respective parties, and due deliberation having been had thereon, the Court makes the following:
1. Charles Pfizer & Co. Inc., a New Jersey corporation (herein called Pfizer, has filed its libel against the barges Mary M. and Margaret M. and their owner Conners Marine Co. Inc. (herein called Conners), to recover damages in the amount of $ 37,000 arising from the loss of cargo (to wit, molasses) laden into the barges mentioned at Buffalo, New York, on August 19, 1943.
2. The cargo was carried under a contract entered into between Conners and Pfizer on April 10, 1943, under which the former agreed for a term of seven years to transport molasses from Buffalo, New York, to Brooklyn, New York, in barges to be supplied by Conners.
3. In its answer and claim Conners admits the making of the contract; it alleges that Margaret M. and Mary M. were seaworthy at the time loading had been completed and that the disaster occurred without any neglect on the part of Conners, but resulted from an accident and danger of navigation.
4. Mary M. is a wooden barge 115.3 feet long, 35.4 feet wide, and 9 feet deep. Margaret M. is a wooden barge 117 feet long, 35.1 feet wide, and 8.8 feet deep. Both barges were originally built in 1921 for the brick trade. They were remodeled in 1933, at which time steel tanks were constructed on the deck of each barge. The outside walls of the tank rise from the deck to a height of approximately 7 feet 4 inches at the stern, 7 feet at the bow, and approximately 9 feet at the midship portion. The roof sections of the tanks are so constructed that they slope inward and upward. The whole roof surface is covered with flat hatch covers in 7 sections, 3 on the starboard side and 3 on the port side, each hatch cover being fitted above its corresponding compartment of the tanks.
5. The molasses trade case bound from Buffalo to New York is seasonal. It is a common practice, and in this instance that practice was carried out, to overhaul the barges engaged in that trade during the winter months.
6. In April 1943 Mary M. was overhauled while afloat. The wearing pieces of her rake timbers were renewed and some caulking was done to her. On April 16th she carried 607 gross tons of bauxite ore from New York to Oswego, making delivery on June 3, 1943. On June 29, 1943, she carried 760.32 tons of molasses from Buffalo to New York. On July 20, 1943 she carried 700 gross tons of bauxite ore from New York to Oswego, making delivery on August 11, 1943.
7. On August 11, 1943, the tug Dynamic, owned by Conners, towed the barges Margaret M., Mary M., Sarazen and Brewer, in that order, all barges being owned by Conners, from Oswego to Buffalo, arriving in the evening of August 17, 1943. The tug and barges had been sent to Buffalo by Conners to carry molasses in accordance with the contract described in Finding No. 2. The barges were towed singled out, and close coupled.
8. The cargo was to be taken on board at the Buffalo wharf of Tank Terminals Corp. (herein called the molasses dock). As the tug Dynamic and tow approached this place they made a round to on left rudder and moored Margaret M. with Mary M. astern of her, at the molasses dock. Sarazen and Brewer were then again taken in tow by the Dynamic, dropped down further to the south, and moored at a dock at the foot of Austin Street, Buffalo (herein called the sand dock).
9. The molasses dock consists merely of a platform 8 feet square jutting out from the Buffalo side of the Niagara River. Access to the shore is by means of a narrow catwalk running north from the loading platform. The loading platform, as such, has not enough mooring facilities for two barges. On the offshore side of the catwalk and near the south end of the loading platform are a series ...