The opinion of the court was delivered by: BYERS
Here the owner of the wooden barge Supreme seeks to recover damages claimed to have been sustained by it as the result of improper loading of not less than six hundred tons (according to respondent -- the libelant says seven hundred tons plus) of wet sand and loam into the barge from the S. S. Robert Fulton at Pier 80 N.R., Manhattan.
The discharge proceeded on August 27, 28 and 29, 1946. The libel was filed October 25, 1946 and the answer on February 27, 1947.
Why the cause did not proceed to trial until over six years thereafter has not been adequately explained.
The facts are so little in dispute that they invite no discussion beyond a citation to the testimony of the witnesses in connection with the respective findings presently to be stated.
The defense comes down to the contention that the vessel was so old and structurally infirm that she could not withstand the inevitable stresses and strains to which her calling rendered her subject, and hence that the clearly established disregard by the respondent's stevedore of the requirement to distribute this considerable cargo evenly, both fore and aft and athwartship, into the bays of the barge should be ignored.
That argument must be rejected in view of the uncontradicted testimony for the libelant that even a newly built barge improperly loaded as the Supreme was, would have been damaged if the same methods had been employed as are disclosed in this record. The Supreme had served many years as a canal boat carrying wheat and similar cargoes, which explains the absence of bulkheads between the bays of the vessel, which the witnesses called hatches.
Moreover it is uncontradicted that less than a month prior to this occurrence the Supreme had received and carried without sustaining any damage a like cargo of 750 tons which had been properly loaded and discharged. The capacity of this barge to function for such a purpose is more important in the disposition of this cause than the age of the craft and such infirmities as are to be attributed thereto.
The bargee Anderson was a convincing witness by reason of his experience and his manner of testifying; he stated that during the 27th and 28th of August he repeatedly complained to the boss stevedore of overloading in certain bays, piling in the center, and the failure to level off the cargo once it had been placed on his barge, and that only partially corrective measures were adopted; more than once his remonstrances were answered by the foreman stevedore with the statement, 'I am loading the boat.'
It is true that he was, and it is equally true, in the light of the testimony, that he was functioning improperly, for which reason his employer must be held responsible for the necessary results of his lack of understanding.
1. On August 26, 1946 the libelant, Ernest Thurston, was the owner of the wooden barge Supreme, the dimensions of which were 116 X 29 with 14 foot sides, having a cargo capacity of about 1,000 tons. The barge was built in 1917 and was therefore then twenty-nine years old.
2. The libelant purchased this barge from the New York Port Authority on July 9, 1946 at the New York State Barge Terminal, Columbia Street, Brooklyn, where it had lain idle for a period of not less than two years, and had accumulated storage charges which caused the sale by the New York Port Authority. The purchase price of $ 450 was sufficient to cancel those charges, but is not indicative of the true value of the vessel.
3. The libelant testified that he had expended about $ 2,400 in labor and materials in order to put the vessel into condition for carrying coal and similar cargoes in and around the Port of New York.
4. On August 26, 1946 the barge had been chartered to Hedger or one of the enterprises bearing his name, but the failure of the charterer to return this vessel in the ordinary good condition, etc., did not result in ...