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February 25, 1949


The opinion of the court was delivered by: BYERS

This is a scow damage cause in which it must be deemed to have been shown that libellant's wooden scow Seaboard No. 20 was squeezed between the derrick Comrade and the north side of Pier 36 N.R. on January 13, 1944, at approximately 5:45 P.M., Eastern War Time.

Puzzling questions of both fact and law are presented by the pleadings and the evidence.

The scow sank, decks to, at Pier 34, about an hour or less after she had been towed from the slip between Piers 37 and 36, as the result of taking water through bottom planks which had been started away from her bilge log, on the starboard side in the vicinity of bays 3, 4 and 5.

 The scow had carried two airplanes and two boxes (containing wing assemblies) from Port Newark to Pier 40 N.R. on January 12, 1944, and was handled thereafter by the claimant-respondent's tug Edward S. Atwood on the morning of the next day; that is, she was towed from Pier 40 to a berth in the slip between Piers 37 and 36 and placed near the bulkhead on the north side of pier 36, awaiting discharge.

 To accomplish that, she was hauled into position alongside the derrick Comrade, at a little after 5:00 P.M., E.W.T., the latter being held by lines alongside the tanker Abiqua, which lay bow in on the south side of Pier 37.

 The slip is 150 feet wide, and when all vessels were in the position stated, their combined widths were: (Abiqua 68.2 feet overall; Comrade 34.9 feet, and Seaboard No. 20 34.5 feet) 137.6 feet.

 This left an apparent margin of about 12 feet to accommodate the spaces necessarily present between all vessels and both Piers.

 The space on the port side of the Abiqua would be affected by tidal movement, and perhaps by the northwest wind which prevailed, of from 25 to 34 miles an hour.

 When the Seaboard No. 20 was landed alongside the Comrade, the testimony is that there was from 3 to 4 feet of open water between her and Pier 36. When the discharge of her cargo had been completed, by the operation of the boom on the Comrade which hoisted the planes and boxes from the scow and swung them to the deck of the tanker, the tug put a line on the scow and tried to tow her out of the slip; this was impossible, because by then she was held in a jam against the north side of Pier 36. Then the tug bumped her forward toward the bulkhead by two or three head-on movements, and so broke the jam; a little later the tug towed the scow to the south side of Pier 34, where she sank to the extent stated. So much is undisputed.

 It should be added that there was some floating ice in the river, which could be regarded as an unrelated fact, except for the eccentric course of this litigation.

 A survey of the scow's damage was held on January 18, 1944, attended by surveyors called by all interests involved, and the reports show generally side plank damage on both sides in the vicinity of bays 3, 4 and 5, and two bottom planks broken 'by ramming starboard side bay #2', and three bottom planks started away from bilge log.

 Apparently it was this damage which caused the leaking and filling, according to the surveyor representing libellant's interests, which therefore was her information as of January 20, 1944.

 On April 10, 1944, a libel was filed against the Atwood, alleging that the scow was damaged while being shifted from the north side of Pier 35 (sic) 'through heavy ice * * * whereby she filled and sank'.

 The faults alleged were towing alongside through ice; forcing the scow through ice; 'forcing the tug through the side of the scow'; and pushing in and breaking the side planks.

 The tug was claimed on May 15th and on September 1, 1944, an answer was filed, which alleged that the Atwood shifted the scow on the afternoon in question to the south side of Pier 34 in a safe and proper manner, and that no damage was occasioned thereby, although there was a small quantity of floating ice in the river.

 Over two years elapsed without further action, and then on April 15, 1946, an amended libel was filed against the tug and Agwilines, Inc., owner respondent, setting forth that the scow on the date in question was moved alongside the Comrade for transfer of cargo to the Abiqua, and that the former's starboard side was 'close to the north side of Pier 35' (sic); that the scowman protested against such placing, and that the Comrade proceeded to transfer the cargo of airplanes from the scow to the ship, 'and in doing so squeezed the 'Seaboard No. 20". Thereafter the tug towed the scow to the south side of Pier 34, through ice.

 That the Atwood was the bailee of the scow for the purpose of transferring her cargo and removing her 'from alongside the S.S. 'Abaque' (sic) thereafter'.

 The charges of negligence are that the tug caused and allowed the scow to be placed in a position alongside the Comrade where she became damaged, and that she caused the scow to be towed through ice in such a manner that she became damaged.

 Thus after an opportunity to ascertain the facts during a period of over two years, the libellant still seemed to believe that the Comrade did the squeezing, and that the tug was responsible for the damage for placing the scow alongside, and also caused the damage by towing through ice, which seems to mean that the libellant was not even then satisfied in her own mind as to how the damage was caused.

 In March of the following year an answer to the amended libel was filed, denying the bailment, the negligence, and the making of protest by the scowman. Fault, if any, is attributed to the scow, the Comrade, and the Abiqua, in permitting the scow to become wedged between the Comrade and Pier 36. An impleading petition under Rule 56 was filed against the Comrade and the United States of America as owner of the Abiqua, under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., in rem and in personam.

 The faults alleged as to the Comrade were: Failure properly to handle her lines; failure to maintain fenders between her hull and the scow; permitting the scow to become wedged and squeezed as stated.

 The faults attributed to the Abiqua were: Failure properly to handle the lines, in that she was caused or permitted to breast off from the Pier (37) and squeezed the scow as stated.

 Answers to the impleading petition were filed, and as to the Comrade laches was the main defense, namely, a delay of more than three years after the alleged damage before the claimant of the Comrade had knowledge of the claim. The Government's answer denied all material allegations of the impleading petition, particularly the breasting off of the Abiqua as alleged; lack of jurisdiction was asserted by reason of the lapse of more than two years after the alleged damage of the scow (Suits in Admiralty Act) and also because neither the respondent nor the Abiqua was within the jurisdiction of this Court; also that the operation of the derrick Comrade and the shifting of vessels delivering cargo were under the supervision, direction and control of the respondent Agwilines, Inc.; also laches on the part of both libellant and respondent.

 The respondent's pleadings were amended later to assert laches on the part of libellant, and at the trial to plead the berth agency agreement under which the Atwood was functioning at this time and place. The motion to amend in that respect was opposed and decision was reserved at the trial, but the motion is now deemed to have been granted in order that all issues may be disposed of on the merits.

 It will be convenient to take up the questions in this order:

 Libellant's proof as to cause of damage:

 The scowman (Axinger) was called and proved to be less than satisfactory as a witness, since he was being examined after the lapse of nearly five years from the sinking. He was 71 years of age at the time of trial, and said he had made a statement to his owner within a very few days after the sinking, but it was not shown to him to refresh his memory.

 That statement would have been helpful to the Court for obvious reasons.

 His testimony is clearly to the effect that the Comrade in tilting had no room; 'he drives all the way on my side and he loosened my bottom planks'; although he talked to no one while the planes were being transferred except to Totland (harbor master for Agwilines) which apparently was later. This version is changed when still later he said that he talked to the Chapman ...

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