The opinion of the court was delivered by: INCH
These actions arise from the Army Barge BC-654 having been struck by the propeller of the S/S Robin Tuxford (hereinafter called the Tuxford).
The first action is by the United States of America, as owner of this Army barge BC-654 against the Tuxford, her owner the Seas Shipping Company, Inc. (hereinafter called 'Seas Shipping'), and Turner & Blanchard (hereinafter called the 'Stevedoring Co.'), for damage to the barge. The second action is by Seas Shipping against the Stevedoring Co. for damage to the Tuxford's propeller. Both actions were consolidated for the purposes of trial only.
On May 1, 1944, the Tuxford was occupying the inner berth on the south side of Pier 2, Staten Island, bow in toward the bulkhead, with her starboard side to the pier. The Army barge BC-654 was moored by means of a bow and stern line to the port side of the ship, bow in to the slip, opposite the No. 5 hatch, which is the hatch nearest the stern of the Tuxford. Immediately ahead of the BC-654, and similarly moored to the Tuxford, was the barge CG-126, from which the Stevedoring Co. was unloading cement ballast blocks into the Tuxford. At about this time, in connection with some repairs or lubrication in the engine room, the propeller of the Tuxford had been slowly turning over since 9 or 9:30 that morning. It was turning clockwise at about one revolution every six minutes and with only two feet of the tip of the propeller blades being visible above the water. The Chief Officer on deck of the Tuxford admitted that he had not been notified by the ship's Engineer that the propeller was turning over, and although he testified that 'warning boards' were painted on the ship in conspicuous places, there is no proof where they were posted or what they stated. On the other hand, all the witnesses for the other parties denied that they received any notice that the propeller was in motion. I find, therefore, that adequate notice of the turning propeller was not given either to the Stevedoring Co. or to the bargee of the BC-654.
At about 10:30 A.M. that morning the Stevedoring Co. in order to better unload the CG-126, moved the BC-654, without the permission of its Captain, back toward the stern of the Tuxford. This action by the stevedores in thus moving the barge back so close to the propeller with slack lines, might in and of itself have indicated an unsafe place for the barge. However, this became a fact when the barge was later struck about midship by the moving propeller, thus causing the damage claimed.
The Stevedoring Co. was thus at fault in making no effort to determine whether the shipS propeller was turning before moving the barge from its safe berth, where it was properly moored, to that dangerous place near the ship's stern, and in leaving the barge's lines in such a condition that it was able to swing under the ship's counter and come in contact with the propeller.
The Tuxford was equally at fault in turning its propeller without adequate notice to the Stevedoring Co. and the bargee of the BC-654. It should have anticipated that the slowly moving propeller, with only a small part being visible above the water, might cause damage to a barge which the Stevedoring Co. might be shifting or unloading in the course of its work. The damage to the BC-654 was, therefore, caused by the concurring negligent acts of the Stevedoring Co. and the Tuxford's crew.
I do not find that the barge Captain of the BC-654 was in any way at fault. His testimony at the trial impressed me as being honest and straightforward. He said that while he was in his cabin he heard a thud and came out on deck to investigate, thinking that something had dropped onto the deck of his barge. Except for the fact that his barge had been moved aft about thirty to thirty-five feet, everything appeared to be in order. About fifteen minutes later he heard a second thump, and on coming out on deck again, was notified by another barge captain that the Tuxford's propeller was turning and striking against the BC-654. After attempting to hold his barge away from the ship with a pole, and shouting to three sailors aboard the ship, and to some stevedores working aboard the CG-126 to have the propeller stopped, he finally went aboard the Tuxford and notified the Engineer, who thereupon immediately stopped the engine. The statement of the bargee to the Marine Casualty Investigating Officer, dated May 1, 1944 is not inconsistent with his testimony at the trial. The statement was dictated by the investigating officer, and the events stated therein are not necessarily set forth in chronological order or in complete detail, and the bargee's testimony at the trial may be reasonably considered as supplementing rather than contradicting this statement.
Finally, there is no proof to support the contention of the Stevedoring Co. that some other vessel operating in the slip caused the BC-654 to come in contact with the Tuxford's propeller.
The United States of America, as owner of the BC-654, is entitled to a decree against Seas Shipping and the Stevedoring Co. for damage to its barge, with interest and costs, and the libel of Seas Shipping against the Stevedoring Co. should be dismissed with costs.
Findings of Fact and Conclusions of Law are filed herewith.
Settle decrees on notice.
1. The BC-654 is a deck type scow whose dimensions are: 110' length, 32' beam, 8' depth, owned by the ...