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January 31, 1955

Frank A. LOWERY, Libellant,
THE Tug ELLEN S. BOUCHARD, THE Motor Tug ELLEN S. BOUCHARD, Inc. and Bouchard Transportation Company, Inc., Claimant-Respondents, and four other cases

The opinion of the court was delivered by: FOLEY

This array of admiralty suits arises from a collision in the Hudson River at a point adjacent to the south end of the City of Albany. Four of the suits involve the original collision and the sinking of two barges and damage to others; the fifth suit is based upon the aftermath of such collision resulting in the running upon one of the sunken barges by the tug, Clayton P. Kehoe. The cases were tried together by the court. Although it is not an easy task, I shall endeavor to discuss them together.

Complexity entered the trial, and now the disposition of the issues, because of the unusual position and theory of defenses, impleader and cross libels advanced by the Bouchard interests at the trial and in their briefs. Also, the ordinary divergence and contradiction in the testimony which seem to be the pattern in collision cases, whether on the highways or waters, is present to an extreme degree. Some of the unseemly conflict in eye-witness versions as to distances is treated in accord with the philosophical comment in The Detroiter, 2 Cir., 82 F.2d 234, 235: 'The thing happened at night when estimates of distance, proverbially unreliable at any time, are especially illusory.' Despite such difficulties, it is clear that the dominant issue for decision throughout is the responsibility for the first collision. Such issue marks the main course and the extent of the voyage into novel and uncertain channels shall depend greatly upon the disposition of this problem. This determination, as always, must be based upon the facts developed on the trial by testimony, depositions and exhibits, as I find they preponderate to one side or the other, and the definite law applicable, if such exists, to the particular factual situations involved.

To give some sense to the discussion and to limit the confusion engendered at least in my mind by the presence of an impleaded respondent, the Inland Survey Bureau, Inc., in the Cargill libel, and the voluminous cross libels by the Bouchard interests back against the libellants, Frank A. Lowery and Cargill, Inc., it may be well to summarize generally certain facts and events together with the circumstances surrounding the collision. Such recital should clarify to some extent the basis for the involved procedures and contentions that enter the picture.

 The Lowery flotilla, ordinarily made up as at the time of the collision, sailed the waters of the Hudson River and Barge Canal for a considerable number of years. It was old in the service of carrying cargo, well known to the trade and canal and river people, and on many occasions it carried scrap iron west from New York City to Buffalo, and grain east from the terminal at Buffalo to the City of Albany. The 'steamer', Motor/Vessel Frank A. Lowery, was a converted wooden barge itself, carried cargo and pulled its tow of wooden barges tandem-style behind by hawsers keeping the tow close up, each how to stern. It was an established custom and practice over the years for the protection of the charterers and the insurance underwriters of cargo, to inspect all the vessels of the Lowery flotilla at the beginning of each trip and after the discharge of cargo at the destination. Many of these detailed reports, described as on-hire and off-hire inspection reports, and particularly those made in reference to the carriage of scrap iron, are introduced by Bouchard to disclose such extraordinary weakness, infirmity, old age and disrepair as to warrant the inference and conclusion that such conditions caused, or contributed to the cause of the collision on September 25, 1953, in the river at Albany, or at least contributed to the sinking of the two barges and damage to the other barges and cargo.

 Specifically, Inland Survey Bureau, Inc. is on the scene as an impleaded respondent, brought in by Bouchard in the Cargill libel, because in early September it inspected the Lowery flotilla for its client, certain insurance writers, for the carriage of Cargill grain from Buffalo to its grain elevator in the Port of Albany. At first Inland disapproved the vessels as unfit for the carriage of grain, but after repairs were made by Lowery himself and crew to the inner lining of the barges, the vessels were approved, the grain was loaded and the Lowery fleet came through the canal and down the river to the place of its misfortune.

 The Lowery flotilla on the early morning of September 25, 1953, cleared the Dunn Memorial Bridge at Albany with six wooden barges in tow. The fifth barge was the Mae Lowery. The sixth barge was the Marion O'Heill. The river and channel at or near this point has substantial expanse, and the Dunn Memorial Bridge under which the tow passed is a main artery for automobile and truck traffic from the Albany side of the river to the Rensselaer or east side of the river. The destination of the flotilla, the Cargill grain elevators at the Port of Albany, is but a short distance beyond the bridge on the west bank of the Hudson River. Proceeding downriver behind the Lowery fleet came the tug Ellen S. Bouchard, pushing in tow the steel barge B-90. Its destination was an oil dock on the east side of the river on the Rensselaer side, in the near vicinity of the collision. At a point 800 to 1,100 feet beyond the Dunn Bridge, the Bouchard tow struck the stern of the barge Marion O'Neill, which sank almost immediately. The time was 2:20 a.m. Eastern Daylight Time. Within a range of ten to fifteen minutes, despite some effort on the part of her captain to pump her, the Mae Lowery also sank. At about 4:00 a.m. the tug Clayton P. Kehoe came down the river from a dock in the City of Albany and ran upon the wreck of the Mae Lowery.

 From this background came the five suits. First, Frank A. Lowery, the owner of the Lowery flotilla, sues the tug Bouchard and the Bouchard interests for the loss of the two barges, Marion O'Neill and Mae Lowery, and damage to other barges, as a result of the collision. Second, Cargill, Inc. sues both the Lowery and Bouchard interests for the loss of the grain carried in the sunken barges with an indefinite claim for damage to grain carried in the surviving barges. It is in this action that Bouchard impleads Inland Survey Bureau, Inc., on the alleged ground that Inland is liable to Cargill, Inc. (which did not sue Inland) for negligent inspection of the Lowery fleet and its approval of the fleet for transport when allegedly it was not fit and able to transport safely. It is their contentions that Inland acted as the agent for Cargill in making the inspection, that Cargill should be charged with the knowledge of the agent that the Lowery was unable to control her tow, and finally, for these reasons, Cargill, Inc. may be charged with fault for the collision. In its brief, Bouchard is gracious enough to state: 'it is of little moment to Bouchard, under the circumstances, whether Cargill collects from Inland or not.' The third suit is termed a protective cross libel by the Bouchard interests against the Lowery interests for indemnity and contribution in the event of any recovery by Cargill, Inc. against Bouchard. There is no claim of damage for the barge B-90 or the tug Ellen S. Bouchard. Then, to balance out things evenly, and possibly square away the entire situation, the fourth suit is another protective cross libel by Bouchard against Cargill, Inc. for indemnity and contribution in the event of recovery by Lowery against Bouchard. The fifth suit is a simple, understandable one by the owner of the tug Kehoe against the tugs Bouchard and Lowery, and Lowery personally, for the damage the tug sustained.

 The Collision Issue. *fn1"

 This issue is clearly the crucial one. I have little difficulty, from a review of the evidence, to place the responsibility for the collision upon the tug Ellen S. Bouchard. Despite the conflicting testimony, the credible evidence establishes to my judgment that the situation was plainly and simply an overtaking one with a complete lack of due care and caution in the navigation and maneuvering of the tug Bouchard and the push tow, Barge B-90.

 The excellent photographs in evidence (Bouchard Exhibits 22a-h, Lowery Exhibits 6, 7a-b, 8a-b) show that the place of the accident was at a substantial span of river and channel with an almost straight contour within the river banks. The size and apparent strength of the B-90 is shown in photographic Lowery Exhibits 10, 11 and 12, and the tidiness and outward maintenance of tug Lowery is shown in Lowery Exhibit 18. The night was described as a fine, clear, moonlit night by Kjolner, the mate of the Bouchard, with the admission by him that no wind or current affected the navigation of the Bouchard tow previous to the collision. (A-13). The Lowery tow was first sighted when the Lowery tow was clearing the Dunn Bridge and the Bouchard tow clearing the second railroad bridge, a distance of 2,500 to 2,600 feet (196). There was no other traffic in the river either southbound or northbound to interfere with a normal and cautious overtaking at the time of the collision or to distract attention from the Lowery flotilla ahead in the river. The Bouchard tow with its speed had complete control of the decision as to the closing and overtaking a tow which the mate knew was slow and had tendency to yaw. There was plenty of time and distance upon the approach to slow to a minimum speed, and even reverse, until he was sure of the speed, location and maneuvers of the Lowery fleet.

 The 'crossing under the stern' explanation does not impress me. The fancy language and interpretation of Kjolner to distinguish the situation from an overtaking is not plausible. (184, 202-4; 225). His attempts to grasp at straws cast doubt upon his testimony. As, for example, a current, eddy or ebbtide may have caused the Lowery to swing (235-6), and the fear of a yacht in the vicinity. (268). If one accepted his testimony from the deposition read at the trial: 'You forget, Sir, I am going from west to east. I am leaving him. I have gone by.' (204); 'I am going on the east bank from the west bank * * * going across and not north and south.' (206), it would be difficult to comprehend that an actual collision occurred.

 After much tugging and hauling, some admission as to the real situation of an overtaking comes from the statement of Kjolner that as they were proceeding previous to collision he probably would have reached his destination of the Gulf Oil Dock in Rensselaer before the Lowery tow came abreast of it, (208-10), and at last the guarded statement that it was his intention to get further downstream than the Lowery was (211). I accept his statement, although doubtful, that the two-whistle signal was sounded because I feel it gives further support to its meaning as an overtaking signal, as he testified at the Coast Guard hearing (229).

 As to the abrupt sheer by the Lowery tow across the entire navigable channel, there is nothing in the record but conjecture, speculation and assumption upon which to base such a finding. The most significant and silent answer to this contention is the location of the sunken Marion O'Neill about 150 feet westward from the east channel line, (46) and about 50 feet east of mid-channel line (60). Even more compelling is the location of the sunken Mae Lowery across the west channel line, the side upon which the Lowery fleet was proceeding downstream when first sighted by the Bouchard. As Cone said, who was on the scene first, the Marion O'Neill went down fact (522-525). The blow, although forceful, was an overriding one which went over the stern of the Marion O'Neill, and it is clear the Marion O'Neill sank immediately and did not move far from the point of contact. The force of the impact is supported by the diver inspection of the Marion O'Neill (78-81), and the derrick operator who baled out the wheat from the Marion. (316-321). Much of the evidence convinces me that the Lowery tow was in good line at or near mid-channel at the time of the collision. It would tax credulity to believe that the tail of the tow swung just prior to the collision to block the entire navigable channel.

 The collision, in my judgment, was a combination of error, mistake, confusion, faulty navigation and maneuver, and lack of reasonable care, alertness, foresight and judgment on the part of the mate and deckhand of the Bouchard that solely, proximately and efficiently caused the collision, the sinkings and the damage. The emergency was not created by the Lowery. The situation was an overtaking one and inasmuch as it is undisputed there was no exchange of signals, and no consent was obtained from Lowery for passage, the law is settled that the burden was on the ...

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