The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW
The claims in this case grow out of the capsizing of the Scow Steelweld on December 2, 1962 in Erie Basin, Brooklyn, New York.
On December 1, 1962, the Scow Steelweld, owned and operated by McAllister Lighterage Line, Inc. ("McAllister") and loaded with a cargo of copper shipped and owned by American Metal Climax, Inc. ("Amex"), was towed from Shed 3 in Erie Basin, Brooklyn, New York, by the Tug James T. Moran, owned by Kirkwood Curtis Bay Co. ("Kirkwood") and operated by Moran Towing & Transportation Co., Inc. ("Moran"), and moored alongside the starboard side of the S/S Steel Age, owned by Isthmian Lines, Inc. ("Isthmian"), which was then moored at Shed 4. The Scow Steelweld remained there overnight, abreast the No. 5 hatch of the Steel Age. On the morning of December 2, 1962, the Scow Steelweld was shifted by the Tug Elizabeth Moran, owned by Tug Agnes A. Moran, Inc. ("Agnes"), and others to various positions alongside the Steel Age in connection with cargo operations. While moored alongside the Steel Age and some time before noon on December 2, 1962, the Steelweld listed to starboard, and, although efforts were made to save the scow, shortly before 1:00 P.M. on that day she dumped her load of copper into the water. Much of this cargo was salvaged at considerable expense for reconditioning.
Upon a later survey of the Steel Age it was discovered that two blades of its propeller had been bent and one blade had been broken, and upon survey of the Steelweld it appeared that the Steelweld had been damaged on the bottom and side of its starboard bow. It is stipulated that these conditions were caused by contact between the Steelweld and the propeller blades of the Steel Age, and at issue here is the time, circumstances, and responsibility for such contact.
A number of actions in admiralty were instituted, and all were consolidated before trial and referred by a Rule 2 order to the undersigned. They were as follows:
1. McAllister, by libel and complaint filed December 14, 1962 (62 Ad. 1323), sued Isthmian for damages to McAllister's Scow Steelweld, alleged to be $10,000. In this action Isthmian impleaded Moran, Kirkwood, Agnes, the Tugs James T. Moran and Elizabeth Moran and Universal Terminal & Stevedoring Corporation ("Universal"), a stevedoring company employed in loading and unloading cargo from the Steelweld, for damages to Isthmian's S/S Steel Age. (McAllister brought no claim of any kind against the Moran defendants.)
2. Isthmian, by libel and complaint filed April 26, 1963 (63 Ad. 459), sued the two Moran tugs, the Scow Steelweld and Moran, Kirkwood, Agnes and Universal.
Isthmian seeks damages in the sum of approximately $80,000 for the cost of repairs, drydocking, value of loss of use of the vessel during repairs, survey fees and other incidental expenses allegedly resulting from damages to its ship, the S/S Steel Age. Recovery is also sought for the amounts Isthmian was required to contribute as its proportionate share in the general average resulting from the collision, and, as amended by pretrial order entered July 2, 1965, this includes a cause of action as bailee of such much of the cargo on board the Steel Age for which suit has not been brought by others, as well as indemnity for general average contributions which such portion of the cargo was required to make in general average.
3. The libel and complaint filed by Amex on May 16, 1963 (63 Ad. 556) proceeds against the S/S Steel Age and Isthmian asking for damages resulting from the loss and damage to cargo of certain copper ingot bars, wire bars and copper vertically cast cakes and other commodities which were lost through the capsizing of the Scow Steelweld on December 2, 1962. Isthmian impleaded Moran, the Tugs James T. Moran and Elizabeth Moran, Kirkwood, Agnes, McAllister and Universal.
4. The libel and complaint of Insurance Company of North America ("INA") and numerous other insurance companies was filed on September 18, 1963 (63 Ad. 965), and was directed against the Tugs James T. Moran and Elizabeth Moran, the Scow Steelweld, Moran, Kirkwood, Agnes, Universal and McAllister.
INA's suit seeks recovery of general average contribution. In general, INA has relied upon and adopted the evidence, testimony and contentions of Isthmian, including the proposed findings of fact 1 through 11 as against Moran, and proposed conclusions of law 1 through 5 as against Moran, submitted by Isthmian.
BASIC CLAIMS OF THE PARTIES
The respective claims set forth in the aforesaid actions may be briefly summarized as follows:
1. McAllister asks recovery against Isthmian for damages to the Steelweld;
2. Isthmian sues McAllister and Universal for damage to Steel Age;
3. Amex sues Isthmian to recover for the loss of copper and the expense of reconditioning that which was salvaged;
4. INA and other insurance companies sue McAllister and Universal for general average contributions made upon behalf of cargo on the Steel Age.
CONTENTIONS OF THE PARTIES
Simply stated, the contentions of the parties are as follows:
(1) Amex and McAllister claim that the Steelweld and its cargo were delivered to and accepted by Isthmian and were in Isthmian's possession, custody and control when all losses and damages were sustained. Therefore, Amex and McAllister allege that Isthmian is liable to them as consignee or bailee of the Steelweld and as a common carrier of the cargo.
(2) Isthmian denies that the Steelweld and its cargo had been delivered and, therefore, Isthmian maintains that it is in no way responsible to Amex or McAllister. Alternatively, Isthmian avers that even if the scow and cargo had been delivered, nevertheless, all negligence which proximately caused the accident was attributable solely to the Tug James T. Moran, and Isthmian is still free from all liability.
(3) Moran, in turn, denies that it was negligent in any manner whatever and, further, it denies that it is liable to any other party.
The resulting issues are:
1. Is McAllister entitled to a judgment against Isthmian for damages to the scow Steelweld?
2. If so, is Isthmian entitled to a claim over against the Moran defendants?
3. Is Isthmian obligated to Amex for loss of cargo?
4. If so, does Isthmian have any claim over against the Moran defendants for such loss of cargo?
The case was tried before the court without a jury.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the ...