The opinion of the court was delivered by: MISHLER
The above actions brought in admiralty, arising out of the same set of facts, were tried together by this Court without a jury. The Court tried only the issue of liability.
The claim stated in the first libel is by the owner and operator of a fuel dock and tank farm, located at Newtown Creek in Brooklyn. Libellant states that the Tank Barge Hygrade No. 26, carrying a cargo of No. 6 bunker fuel arrived in Newtown Creek on January 21, 1958, at approximately 7:30 P.M., at libellant's dock. At about 7:30 P.M., the pumps of the tank barge commenced discharging fuel into tanks A-1 and A-2 of libellant. After approximately one and one-half hours of pumping, an elbow on top of tank D-1, owned and maintained by libellant, fractured, causing the oil to spill all about the libellant's tank farm area, causing the damage set forth. Libellant states that the negligence of the respondent was that respondent's employees were incompetent, inefficient and inattentive to their duties, in failing to observe the fracture and failing to take the necessary action to shut off the barge's pump; libellant further states that there was a duty on the respondent's employees imposed by Coast Guard Regulations, which will hereinafter be referred to.
The second libel asks for damages to the vessel by reason of the negligence alleged, in that the respondent failed to properly maintain and inspect the shore pipe line.
The parties are in substantial agreement on most of the material facts. The parties agree that pumping of the oil by the tank barge did not cause the fracture. When the tanker docked at the tank farm, the fuel line of the barge was connected to the installation provided by Great Eastern. Mr. Georges, an employee of Great Eastern, checked the quantity of fuel in the barge's tanks and then opened the valves for delivery of the fuel oil to tanks A-1 and A-2. The valve to tank D-1 was between the subject elbow and the tank. In the pumping operation, while the fuel was being delivered to tanks A-1 and A-2, pressure was being exerted in the fuel line into tank D-1 and against the elbow of tank D-1. The elbow should have been able to withstand a pressure produced at the pumps of the tank barge of up to one hundred pounds; at the time of the occurrence made the subject of these actions and during the pumping operations, at no time was the pressure produced in excess of fifty pounds. Pumping operations were commenced at the signal of Mr. Georges and after he had opened the valves which were on Great Eastern's installation. All the installations, except the pump on the tank barge and the fuel pipe to the shore installation, was owned, operated and controlled by Great Eastern.
The only point of factual difference between the parties is the time difference between the occurrence and shutting off of the tank barge's pump. Great Eastern offered testimony that the spray of oil through the fracture continued for approximately 15 minutes. Mr. Georges testified that he made various efforts by whistling, calling and throwing stones at the tanker to attract attention to the defect; finding it difficult to approach the barge directly because of the flow of oil, he had to take a circuitous route to the captain's quarters on board the vessel; and the captain finally shut off the pumps. Libellant, in the second action, Tanker Hygrade No. 26, Inc., hereinafter referred to as Hygrade No. 26, offered the testimony of Mr. Dahl who was mate on board the evening of the occurrence. He testified that it was his duty to supervise the functioning of the pump; he noticed a sudden drop in pressure; he immediately went on board and noticed the spray and thereafter descended to the pump room where he met the captain who already was on his way down to the engine room to shut off the pump. The entire lapse of time, Mr. Dahl testified, was approximately three minutes from the time he saw the drop in pressure to the time the pump was turned off. In a statement made on August 3, 1960, Mr. Georges estimated the lapse of time, from the first time he noticed the spray of oil until the time the pumps were shut off, to be '* * * anywhere from three to eight minutes.' Exhibit D.
Great Eastern urges that Tanker No. 26 was negligent in failing to observe Section 35.35-1 of the Rules and Regulations for Tank Vessels, promulgated by the United States Coast Guard. The Section reads in part as follows:
'35.35-1 Men on Duty -- T.B./All. A sufficient number of the crew shall be on duty to perform transfer operations.'
The Court finds that, upon all the evidence, Tanker No. 26 did not violate the Regulation aforementioned.
The Court finds that Great Eastern has failed to sustain its burden of proof to support the claim stated in its libel in first action.
In determining whether Tanker No. 26 has sustained its burden in the second action, the question of the applicability of the doctrine of res ipsa loquitur, or the propriety of any other inference of negligence that may properly be drawn from the established facts arises.
The Doctrine of Res Ipsa Loquitur
There is little question that the doctrine of res ipsa loquitur is applied in admiralty. Johnson v. United States, 333 U.S. 46, 49, 68 S. Ct. 391, 92 L. Ed. 468; Mississippi Valley Barge Line Co. v. Cooper Terminal Co., 7 Cir., 1954, 217 F.2d 321, 323; Geotechnical Corp. of Delaware v. Pure Oil Co., 5 Cir., 196 F.2d 199, 205. The applicability of the doctrine becomes quite evident when we understand that the doctrine is a rule of evidence. It has been called a 'commonsense appraisal of the probative value of circumstantial evidence'. See Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455, 460, 153 A.L.R. 1122. In Foltis, Inc. v. City of New York, supra, the Court said 287 N.Y. at page 116, 38 N.E.2d at page 460:
'The doctrine merely means that certain occurrences contain within themselves a sufficient basis for an inference of negligence, and it does not differ from ordinary cases of circumstantial evidence except in the respect that the facts and circumstances from which the inference of negligence is drawn are immediately attendant on the occurrence.'
In this case, all the elements from which the inference of negligence may properly be drawn are present. Great Eastern urges that since the tank barge pump was in the control of Tanker No. 26, that the inference should not be drawn. The Court disagrees with this premise. The damage claimed is based upon the failure of Great Eastern to properly maintain the installation, including the pipes and the elbow in question. The negligence that the Court infers from the facts was the failure to properly maintain the lines, including the fractured elbow. The omission occurred at a time prior to the pumping ...