The opinion of the court was delivered by: INCH
These two actions arise out of the sinking of the barge William T. Rouse (hereinafter called 'The rOuse'), with its cargo of pulverized coal, while moored at the 58th Street pier in the North River, at about 11 A.M. on August 6, 1946. One suit is by Sargent Barge Line, Inc. (hereinafter called 'Sargent'), as owner of The Rouse, against the tugs Overbrook and Trenton, for damage to the barge caused by the sinking, the salvage expense in raising her, and for loss of the barge master's personal effects. The other suit is by Refined Syrups & Sugars, Inc. (hereinafter called the 'Sugar Company') as owner of the cargo of coal against Sargent, the barge Rouse and the tugs Overbrook and Trenton, for loss and damage to the coal cargo. By stipulation both actions were tried together.
On August 5, 1946 The Rouse, having a capacity of 1,000 tons, was loaded at South Amboy, N.J., with 985 tons of soft, dust coal consigned to the Sugar Company in Yonkers, N.Y. After the loading was completed the bargee sounded and found that the barge had ten inches of water, all of which he pumped out except two inches which his pumps could not reach. The barge had a freeboard of about twelve inches amidships and about eighteen inches at bow and stern. It was then placed in the Pennsylvania Railroad Company's big tow of loaded barges and proceeded toward New York. Upon arrival off Bayonne, N.J., the next morning, August 6, at about 4:30 A.M., The Rouse was taken out of the main tow, together with the loaded barge Liberty Bell, by the tug Overbrook. The Overbrook proceeded toward New York ahead of the main tow, with The Liberty Bell on her port side and The Rouse on her starboard side, the bows of all three heading in the same direction. Coming out of the Kills the bargee ran his pumps for about an hour and got a little water 'here and there'. The weather was clear and calm, and from 6:45 A.M. to 9:30 A.M. the tide was ebb in the North River from the Battery to 58th Street. At about 6:45 A.M. in the vicinity of Pier D, Jersey City, the tug Trenton joined the tow making fast to the starboard side of The Rouse. A little further up, in the vicinity of Pier 9, Jersey City, the tug J. P. McAllister joined the tow making fast to the port side of The Liberty Bell. The three tugs, with the two loaded barges between them, then proceeded up the North River against the ebb tide at about one and one-half miles per hour until they reached 54th Street, Manhattan, where The J. P. McAllister left the tow. The Trenton dropped off at 58th Street at about 9:30 A.M., then The Overbrook placed The Rouse, with The Liberty Bell outside her, on the north side of the 58th Street pier, bow in toward the bulkhead and starboard side next to the pier.
The bargee of The Rouse sounded his barge and found only four inches of water which he did not consider enough to require pumping at that time. The barge appeared to be on an even keel and apparently safe, and the bargee went ashore to telephone his owner that he was ready to be towed to Yonkers. On returning to the barge, a half hour later, he found it listing to starboard at an angle of about 15 degrees. He immediately started his starboard pump, but got no water because, it is claimed, the water had been absorbed by the cargo of dust coal. At about 11 A.M. The Rouse rolled over on its starboard side and sank.
A few days later the barge was raised by means of a derrick with slings. It was taken to New Jersey and inspected and then without repairs, proceeded to Yonkers where it delivered what remained of its coal cargo.
A survey of The Rouse held on September 10, 1946, showed that on the starboard side a covering board was broken at the edge and that the top log seam, which is about sixteen inches below the surface of the deck, was open from the stern to amidships. The open seam was caused, as one of the surveyors described it, by the top log having been 'lifted or tilted'.
In its libel Sargent alleged that this damage to The Rouse was caused by the negligence of the tugs Overbrook and Trenton in towing the barge up the North River. In my judgment Sargent has sustained the burden of proof on that issue.
There is ample evidence that The Rouse was seaworthy immediately prior to the towage. In September and October of 1944, the barge was completely overhauled at a cost in excess of $ 12,500. Then in November of 1945, nine months prior to the sinking, $ 236 was spent on work on the barge, including the caulking of the three seams from the cover board down for the entire length of the barge on both sides. The superintendent of the company which did the work testified that the life of the oakum used would be two or three years, and that its condition in August 1946 would be 'fairly good'. Finally, in January and February of 1946, certain bow damage was repaired on The Rouse at a cost of more than $ 3,000, and the superintendent of that company testified that the barge was in a seaworthy condition and required no other repairs. Thus for a period of less than two years prior to the sinking more than $ 16,000 was spent of The Rouse. Further, all the witness who supervised work on the boat, or surveyed it, both before and after the sinking, were unanimous in their opinion that the barge was in good condition.
The proof shows that The Trenton made fast to The Rouse opposite the barge's starboard after quarter cleat, when the open seam was later found. At this point of contact The Trenton had a freeboard of five to six feet, whereas the heavily loaded barge had a freeboard of only eighteen inches, so that the strap from the portside bitts of The Trenton came down at a considerable angle to the starboard after quarter cleat of The Rouse. Now The Trenton was equipped with heavy iron steel guards or ribs along her sides, and the evidence supports a finding that The Trenton was not equipped with fenders of sufficient length and thickness to have prevented her from pounding against the barge and damaging it in the three-hour tow up the North River against the ebb tide. It is admitted that all during that time, which The Rouse was wedged between The Overbrook and The Trenton, the tugs kept their engines full ahead. Moreover, The Trenton carried no stern line to the tow so that it was necessary for her wheel to be held to the right, exerting additional pressure on The Rouse. I am, therefore, inclined to believe the testimony of the barge captain to the effect that in going up the river, where the water was somewhat rough because of ferry boats and other boats, that The Trenton, with its heavy steel ribs and without adequate fenders, rolled and pounded against The Rouse which was held in on the opposite side by The Overbrook, thus causing the damage claimed.
I cannot find that the sinking of The Rouse resulted from any of the causes suggested by the tug interests. First, it is claimed that the barge was overloaded and that the oakum in its seams was old and dried out. As already stated, the proof shows the barge was entirely seaworthy. It had a capacity of 1,000 tons, and there is evidence that on several occasions it had carried more than 985 tons. Had the condition of The Rouse been such as is claimed by the tug owners, I do not believe it could have been towed all through the night from South Amboy, N.J. and arrived in Manhattan on an even keel and with no change in its low freeboard.
Nor do I find that the damage was caused either by the barge striking the pier when it capsized, or in the salvage operations of raising her with slings. The only damage found which could have caused the sinking was the open log seam, so that the damage must have existed prior to the sinking. Moreover, there is no direct evidence that the barge struck the pier and there is no showing of opened seams at any other place on the barge other than at the point where The Trenton made fast.
The bargee cannot be said to have been negligent. The damage was not readily discoverable and the barge appeared to be in good and undamaged condition to all concerned when it arrived at 58th Street. Finding only four inches of water in his boat at that time, the bargee was justified in going ashore for a short time to notify his employer of his safe arrival.
I find The Overbrook equally at fault with The Trenton in view of the fact that she was in charge of the tow and should not have permitted The Trenton to make up on the opposite side of The Rouse and continue there equipped as she was under the circumstances here presented.
Libellants Sargent and the Sugar Company are each entitled to a decree against the tugs Overbrood and Trenton for their respective damages, with interest and costs, and the Sugar Company's libel against ...