The opinion of the court was delivered by: CONGER
The two above-entitled actions were tried together. Both arose out of an accident occurring on October 15, 1943 while the tug Michael Dalzell was tied up at a pier adjacent to Dry Dock No. 2 in the repair yards of Todd Shipyards Corporation at Hoboken, New Jersey, when the mast and boom on the St. Nicholas, a derrick lighter, fell over and upon the tug.
In the first action the libel is against the St. Nicholas, in rem and against Lee & Simmons, Inc., as owners of the St. Nicholas in personam to recover for the damage to the tug Dalzell.
Respondent Lee & Simmons, Inc. filed a petition impleading Todd Shipyards Corporation, claiming that the damage to the tug was caused solely by the negligent operation of the St. Nicholas by Todd which had the lighter under charter at the time.
On the trial, libellant Dalzell made out a prima facie case and rested. Both respondents agree that libellant is entitled to a judgment for the damage sustained by the tug.
In the second suit, a libel was filed in the United States District Court for the Eastern District of New York by Todd Shipyards Corporation against Lee & Simmons, Inc. to recover for the cost of the repairs to the St. Nicholas. In this libel it is alleged that libellant Todd chartered the St. Nicholas from respondent and that while operating under the said charter the boom and derrick of the lighter collapsed resulting in serious damage to the lighter; that said damage was solely caused by the unseaworthy condition of the lighter; that Todd repaired the damage and is entitled to the cost of these repairs.
This second action was removed to this District and consolidated with the Dalzell action for purposes of trial.
On or about April, 1943 Todd chartered the St. Nicholas and the charter lasted until about September 12, 1943 when the St. Nicholas was laid up for repairs. It was again, on or about October 2, 1943, chartered by Todd for a period of six months and was still under charter when this accident occurred.
Each of these charters were made orally but each was in due time confirmed by a written 'charter confirmation' sent by Lee to Todd. It is claimed by Todd that while they received this confirmation it was never accepted by them and, therefore, should have no effect nor weight in this case. I cannot agree with this contention. I feel that having received the confirmation and retained it and continued to operate the lighter, without objection as to the terms of the confirmation, they are bound by it. However, whether the lighter was operated under the claimed terms of the oral charter or under the charter as confirmed makes no difference, it seems to me, in arriving at the solution here.
The St. Nicholas is a derrick lighter with no propelling power, about 109 feet long with a breadth of about 35 feet. It had a single mast of about 72 feet in height and 2 feet in diameter at the base and boom of 85.6 feet long. The lifting power was supplied by a steam engine.
There were two methods of using the boom. It could be attached to a deck step or it could be stepped to what is known as an upper step, which is 12 feet above the deck. By stepping the boom to the deck the lifting power is increased and the strain on the mast reduced.
On the morning of October 15, 1943, in the course of work at the Todd yards, it was necessary to have a certain rudder moved from Pier B to the apron of Dry Dock No. 2 on the south side of and adjacent to Pier B. It was generally understood that this rudder weighed about 5 tons. Later it was weighed and found to weigh 11,600 pounds. Todd's superintendent gave the orders for the work to be performed.
The rudder had been rigged by Todd's men with slings for hoisting the night before and was resting on a dolly on the deck of Pier B. Todd's superintendent ordered the St. Nicholas towed to the same side of Pier B for the purpose of making the hoist.
On arrival it was found that the Michael Dalzell was tied alongside of Pier B. so that it was impossible to place the St. Nicholas alongside the pier and the St. Nicholas was, therefore, moored outside the Dalzell, and made fast with her aft corner tied to the portside midships of the Dalzell and her forward corner to the apron of the Floating Dry Dock No. 2. This left the St. Nicholas not against the flush with Pier B but with her forward end further away from the pier than her aft end, and with the Dalzell between her and Pier B.
There were two men on the St. Nicholas; the captain and the engineer. When the St. Nicholas was in the position as above stated her boom was let down and over the rudder. One of Todd's men was standing on the rudder. He made the line from the boom fast and gave a signal with his hand to those on the lighter to go ahead with the lift. This was done and one corner of the rudder went up when a crash was heard. The mast fell over and backward and hit the house of the tug. The boom also fell over and upon the tug.
An examination of the derrick's gear just after the accident showed that a chain link securing the forward port stay to the chain shackle had opened. This allowed the stay which had been supporting the mast to swing loose. It was noticed also that a second link on the aft port stay had parted.
The St. Nicholas was repaired by Todd but the bill has not been paid by Lee & Simmons, Inc. who now contest it here.
Todd sued Lee & Simmons, Inc. in the Eastern District for the cost of these repairs on the theory that Lee & Simmons had requested Todd to make such repairs and that, therefore, Todd had a maritime lien on the vessel for the cost of the repairs.
Judge Inch after a trial dismissed the libel holding that 'Lee and Simmons did not order the repairs nor was there any agreement on the part of Lee & Simmons, Inc. to pay for said repairs.' See Findings of Fact and Conclusions of Law by Judge Inch.
A second suit was then commenced by Todd in the Eastern District to recover for the repairs on the ground that the damage was the result of an unseaworthy condition of the St. Nicholas and of her hear. That is the second suit that was tried before me.
It is contented by Lee & Simmons, Inc. that this second action may not be sustained because the same cause of action had been tried and decided against Todd in the action tried before Judge Inch. I cannot sustain this plea of res judicata because it has already been passed on adversely to the ...