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August 17, 1971

CONSOLIDATED IRON & METAL COMPANY, Inc., Defendant and Third-Party Plaintiff, v. ZELLER MARINE CORPORATION and Red Star Towing & Transportation Company, Third-Party Defendants

Cannella, District Judge.

The opinion of the court was delivered by: CANNELLA

CANNELLA, District Judge.

This is yet another admiralty action involving the use of scows by the Consolidated Iron & Metal Company, Inc. [hereinafter "Consolidated"] for the transportation of its scrap. In this particular case, Consolidated had contacted the Zeller Marine Corporation [hereinafter "Zeller"] on November 29, 1965 and asked that an empty scow be delivered the next day to the Consolidated bulkhead on the Hudson River at Newburgh, New York. Zeller then arranged with Gallagher Bros. Sand & Gravel Corporation for the charter of plaintiff's welded steel deck scow, the Bilkay No. 4, *fn1" and with the Red Star Towing & Transportation Company [hereinafter "Red Star"] for a tugboat to tow the unmanned and non-self-propelled Bilkay to Newburgh.

 Subsequent to the scow's arrival on November 30th, *fn2" Consolidated began loading it by means of an electromagnet equipped crane with no. 2 bales of scrap iron approximately two feet square by five feet long and weighing between 1700 and 2000 pounds. *fn3" When the loading neared completion on December 6, 1965, Consolidated contacted Zeller and asked it to arrange to have the Bilkay towed to Port Elizabeth, New Jersey the next day.

 Red Star's tug Rockland County arrived at Consolidated's dock at approximately 1400 hours on December 7th and was informed by Gallagher's "runner", *fn4" one James Hines, that the scow was not yet ready for towing. The court finds that the reason for the delay was that Hines had ordered the crane operator to move a number of bales scattered at random on top of the completed fifth tier *fn5" inward toward the port side of the vessel. *fn6" After this process was completed about an hour and a half later, the Rockland County made up, pushboat fashion, to the Bilkay, with the tug's bow pushing knees drawn fast to the scow's stern by means of winch-tightened "face wires" or cables attached to corner cleats on the barge. The tug and scow then backed out into the Hudson through an arc of about 180 degrees and headed down the river. First Mate McCullough, who was at the controls of the Rockland County during this maneuver, testified, and the court so finds, that after the Bilkay had been pulled away from Consolidated's bulkhead, her slight list to starboard became a slight list to port, *fn7" with freeboard of approximately six to eight inches. *fn8"

 The Bilkay arrived in calm water off Tomkins Cove, New York at about 6 p.m. on December 7th, and its starboard side was eased along the port side of the outermost scow of a number of others moored there. After one line had been put out at the bow, first the port face wire from the tug, then the starboard face wire, were released whereupon the Bilkay began taking a steadily increasing list to port to the extent that a number of bales fell off into the water. The scow then careened to starboard, dumping more bales into the water (and onto the barge alongside) and dragging that scow down. The taut bow line was cut immediately, and the Bilkay then settled somewhat to a starboard list of approximately 45 degrees with part of the bottom out of the water and the cargo box partially submerged. At this point, the Rockland County maneuvered around and tied on to the bow of the scow and slowly pulled it out into the river, then gently pushed it partially onto a nearby sandy beach. This maneuver put the Bilkay on an even keel (with the inshore end higher) whereupon the water in the cargo box gushed through cutouts in the cargo rails. After this water had run out, the tug pulled the scow off the sand, made fast with the face wires and pushed the Bilkay, which was listing again, across the river to a pier at Verplanck where the hull was sounded for water and pumped out. The next day, December 8th, the scow continued its voyage down the Hudson with the remaining bales.

 On December 16, 1965, the Bilkay was examined in drydock at Jersey City, New Jersey. Two marine surveyors, one representing the plaintiff and the other the cargo interests, found damage to bottom plates on the port side and to the various longitudinals attached to those plates. See generally plaintiff's Exhibit 6, Consolidated Exhibit D. A soaping of the seams and filling of the compartments with compressed air failed to divulge any leaks in the hull.

 * * *

 The plaintiff filed its libel against Consolidated on April 6, 1966; it was subsequently amended to include not only the claim for the damage to the scow, but also a claim for the charter hire, which has never been paid by Consolidated to anyone. In the meantime, Consolidated had impleaded Zeller and Red Star on June 30, 1966, the last effective day of Rule 56 of the Admiralty Rules, *fn9" alleging, inter alia, that if it -- Consolidated -- is liable, "then any and all such liability was caused by the * * * negligence and breach of the obligations and duties of * * * Zeller for its failure to provide a seaworthy vessel * * * and/or the * * * negligence and breach of the obligations and duties of * * * Red Star in the towing and/or maneuvering of [the] Bilkay * * * [and] Red Star and Zeller should be proceeded against directly in this Court by the [plaintiff]." *fn10"

 This Court has jurisdiction pursuant to 28 U.S.C. ยง 1333(1).

 To deal first with the plaintiff's claim for the charter hire, the court finds that Zeller's role in the transaction giving rise to the claim was nothing more than what its letter -- and billheads indicate, to wit, "marine transportation agents " *fn11" -- acting on behalf of the plaintiff barge owner. The fact that the plaintiff was an undisclosed principal does not sustain Consolidated's defense of lack of privity of contract here where the contract or so-called "New York harbor oral charter" was nothing more than a brief telephone call to Zeller on November 29, 1965 and where, as a matter of practice, "it did not matter to Consolidated what scows were used." *fn12" Consolidated, as charterer, is therefore liable to the plaintiff owner for the unpaid charter hire.

 The court does not doubt for a moment that it often "can be very confusing to try to pinpoint the origin or the cause" of structural damage. *fn13" However, the evidence in this case (1) that scows were frequently aground at Consolidated's dock and that they could only be moved away at or near high tide; *fn14" (2) that the water level was approaching low tide at the time the Rockland County made fast to the Bilkay; *fn15" (3) that the estimated depth of the water at the Consolidated bulkhead at low tide was ten and one half to eleven feet; *fn16" (4) that approximately eleven feet of water were required to keep the loaded scow fully afloat; *fn17" (5) that the shifting of the top bales inward to port did not appreciably change the list to starboard; (6) that the damage to the bottom plates was found to be relatively new, probably not older than two weeks, by both surveyors who examined the Bilkay in drydock on December 16th; *fn18" (7) that the scraped barnacles *fn19" indicated that the scow was pivoting *fn20" and underway *fn21" at the time the damage occurred; and (8) that the list to starboard became a severe port list once the scow was freed in open water from the centerline equilibrium provided by the tug clearly indicates, and the court so finds, that the port side of the bottom of the Bilkay was aground at Consolidated's dock at 3:40 p.m. on December 7, 1965 and that the damage thereto was caused when the Rockland County pulled the scow away from the bulkhead to begin the voyage down river.

 This court has held that the type of charter involved herein is not a demise charter and that a plaintiff must prove negligence and that the negligence was the proximate cause of the damage. See B.W. King, Inc. v. Consolidated Iron & Metal Co., 310 F. Supp. 471 (S.D.N.Y. 1970).

 In this case, Consolidated had the duty of using reasonable care to provide a safe berth. Smith Scow Corp. v. Consolidated Iron & Metal Co., 275 F.2d 367 (2d Cir. 1960). At trial, Consolidated's president, Laskin, testified that so far as he knew the river bottom at the bulkhead was silt and clay; that the depth of the water was checked periodically; that the crane operator had standing instructions to pick out of the water any scrap which fell overboard; and that the berth had been dredged in July, 1964. Trial Minutes, pp. 432-35. But grounding cases are as changing as the tide. Thus, while there was no showing, for example, that the river bottom at Consolidated's dock was hard or irregular between August 23 and 26, 1957 in Smith Scow, supra, the evidence adduced in this case clearly shows that the plates of the Bilkay were damaged by hard and/or irregular objects embedded in or sitting on the bottom on December 7, 1965. The court finds that these objects made the berth unsafe.

 The Court of Appeals for the Second Circuit has pointed out that a wharfinger is not an insurer, but that the duty of exercising reasonable care requires the taking of reasonable precautions to remove underwater obstructions that might otherwise endanger vessels moored to his pier. Berwind-White Coal Mining Co. v. City of New York, 135 F.2d 443, 445 (2d Cir. 1943). In a later case before the same Court, the appellant pier owner argued that there was no showing at trial of knowledge on its part of the existence of a hard ridge shoal at the point where the grounding in question occurred. The Court affirmed, however, the trial court's finding that appellant should have ascertained the existence of the hard ridge. Red Star Barge Line, Inc. v. Lizza Asphalt Construction Co., 264 F.2d 467 (2d Cir. 1959) (Burger, J.). See Smith v. Burnett, 173 U.S. 430, 19 S. Ct. 442, 43 L. Ed. 756 (1899); Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 354 F.2d 476, 480 (4th Cir. 1966). In the case at bar, there was no adequate refutation of the testimony of both the master and first mate of the Rockland County that scows were frequently aground at Consolidated's bulkhead. If this then was the case, *fn22" Consolidated had, in effect, continuing notice of the necessity to exercise ...

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