The opinion of the court was delivered by: INCH
These are two suits and a proceeding, duly consolidated, for the purpose of the trial. The evidence presents no difficulty so far as a consolidation for trial is concerned, but some confusion and multiplicity of defense is presented which, in turn, appears in the various main and reply briefs. This has caused caution on the part of the court, in order to fairly consider these different arguments and arrive on the facts, at what it thinks is a proper decision in each suit.
In the first suit, Roah Hook Brick Company, as owner of the scow Roah Hook, filed a charter libel against the Erie Railroad Company, claiming damages during the charter period. Erie Railroad Company filed an answer to this libel and an amended petition under the 56 Rule in Admiralty, 28 U.S.C.A. following section 723, impleading Agwilines, Inc., R. A. Nichol & Co., Inc., United States of America, The Jarka Corporation and Carroll Towing Company, Inc. Subsequently, Carroll Towing Companh, Inc., impleaded Simmons, Lee Corporation, as owner, and Lee & Simmons, Inc., as charterer of the tug Maren Lee.
United States of America answered the petition and, in turn, filed a petition under the 56th Rule in Admiralty, 28 U.S.C.A.following section 723, against Agwilines, Inc., The Jarka Corporation, Carroll Towing Company, Inc., Lee & Simmons, Inc., and Simmons, Lee Corporation, in which petition affirmative defenses, based on contract, were pleaded by United States of America.
In the second suit, United States of America filed its libel in a cause of contract and cargo damage and loss in rem against the scow Roah Hook, and in personam against Erie Railroad Company, Agwilines, Inc., The Jarka Corporation, Carroll Towing Company, Inc. Lee & Simmons, Inc., and Simmons, Lee Corporation.
In the third proceeding, Roah Hook Brick Co., claims exoneration from or limitation of liability as owner of the scow Roah Hook.
In the cargo case, R. A. Nichol & Co., Inc., has not been impleaded, but it has been stipulated that any negligence of R. A. Nichol & Co., Inc., is to be deemed that of the United States of America.
When all the testimony, including the exhibits, has been carefully considered, together with the various arguments of the parties in their briefs, we start with a simple situation which is not disputed. Substantially, this is as follows:
At the times in question, to wit, November 1943, a period of war activity, the United States owned the steamship Will Rogers, which on November 10, 1943, was tied up to the south side of Pier 36, North River. Merchants and Miners Transportation Company of Baltimore, was the general agent of the United States for this vessel, and the latter's New York agent was R. A. Nichol & Company, Inc. United States acted in these arrangements through the War Shipping Administration. At or about this time, the Government had purchased a large supply of automobile parts which it desired to be carried by the said steamship Will Rogers to Russia.
Accordingly, the Erie Railroad was engaged to furnish a scow to carry this cargo from the Erie Terminal at Weehawken to Pier 36, North River, so that it, at the desired time, could be loaded upon the said steamship.
Erie Railroad had under charter this scow Roah Hook from libellant, Roah Hook Brick Company. This boat was in sound seaworthy condition at the time it took on and carried the cargo, and subsequently was returned to said libellant in a damaged condition. This fact caused the first suit. In this suit the said Erie Railroad, as charterer, impleaded the various other parties in order to show that no blame could be placed upon it and that if anyone was at fault it was one or more of the latter parties so impleaded.
This scow, with its cargo, had arrived on November 10, 1943, at Pier 36, North River. Sometime after midnight of November 11th, the scow broke away from the pier where it had been moored by the Erie tug outside of a number of other boats, and was damaged, losing overboard a substantial part of its cargo. This gave rise to the suit by the United States, owner of the cargo. Again we have various parties impleaded, which are blamed for this loss.
With the above statement, it seems to me, that out of this controversy in the first suit we have, in effect, two simple issues. First, was the charterer, Erie Railroad liable for the damage to the scow Roah Hook because of its negligence and, Secondly, was some other party also liable in the subsequent drifting away of the scow, on the ground of negligence, after its cargo had been delivered by the Erie at Pier 36, North River. Edward G. Murray Lighterage & Transportation Co. v. Pennsylvania R.R., 2 Cir., 130 F.2d 199.
At this point, I am satisfied that there is no evidence, substantial enough on which to base a finding of negligence, on the part of the various shifting tugs which were employed at the terminal during the days of November 10th and 11th, 1943, and were busily engaged in bustling activity at Pier 36, North River, after the Erie tug Elmira, assisted by the Erie tug Rochester, had deposited the scow Roah Hook at Pier 36, North River. Nor is there any ground for finding liability on the part of The Jarka Corporation, which was the stevedore ready to work when the proper time arose for the actual loading of the cargo from this particular scow on to the steamship Will Rogers, which time never arose. These impleading petitions must be dismissed with costs. Nor is it necessary to dwell upon the petition to limit liability.
The first issue therefore is, was Erie, the charterer negligent? Secondly, was there also negligence on ...