The opinion of the court was delivered by: RE
In this action, the libelant, Martin Marietta Corporation, (Martin), seeks to recover $54,289.02 representing damages sustained by its scows or barges, FEENY 20 and HB 130, when they broke adrift from their place of mooring at Rockaway, New York on April 2, 1970. The scows broke adrift while they were in the possession and control of the defendants, who, as a joint venture, were engaged in performing certain work on the Cross Bay Parkway Bridge being constructed in Jamaica Bay, Rockaway, New York.
Martin contends that the damage to the scows resulted from defendants' negligence, and therefore seeks to hold the defendants jointly and severally liable for the loss sustained. Simply stated, the question presented is whether Martin has succeeded in proving that the loss sustained was caused by the negligence of the defendants.
Martin sells crushed stone and transports it in scows to destinations designated by its customers. For this purpose, the scows are both transported and retrieved by tugboats hired by Martin. On the occasion in question, Martin was unable to proceed in its customary manner because various tugboat unions were on strike. Instead, since the defendants owned a tugboat whose crew were not members of a union on strike, Martin agreed to permit the defendants to transport the loaded scows to their construction site.
On February 6 and February 23, 1970 the scows, FEENY 20 and HB 130, were towed by defendants' tugboat to their construction site in Jamaica Bay. Defendants unloaded the scows and moored them at a wharf they leased from the New York City Park Department.
During the period when the scows were moored, Martin had one of its employees visit the construction site at least twice a week, and this employee had the opportunity to observe the condition of the scows and the manner in which they were moored.
On February 17 and March 6, 1970, Martin was notified that the scows had been unloaded, and were ready to be retrieved. On April 2, 1970, as a result of a severe storm, the scows broke away from their moorings, went adrift, and were damaged.
At the trial Martin's witness testified that the wind velocity, at the time in question, was approximately 26-30 knots with gusts of 33-40 knots. Although the defendants' evidence conflicted, and showed a wind velocity in excess of 50 knots, it is clear that the storm was of sufficient severity to wrench two mooring bits or cleats completely out of their concrete mountings.
At the outset, Martin seeks to establish the defendants' liability by asserting that the scows were improperly moored. Additionally, it asserts that "by virtue of the bailment . . . plaintiff is entitled to a presumption of the defendants' negligence upon proof of delivery in sound condition and the return of the scows in damaged condition." Consequently, Martin contends that, unless the presumption is rebutted by the defendant, it is unnecessary for Martin to offer any additional proof of negligence. Mid-America Transportation Co. v. St. Louis Barge Fleeting Service, Inc., 229 F. Supp. 409 (E.D. Mo. 1964), aff'd 348 F.2d 920 (8th Cir. 1965).
The defendants do not seem to deny that a bailment arose initially, but they argue that it was terminated before April 2, 1970, when the damage was sustained by the scows. They emphasize that Martin was notified to retrieve the scows prior to the accident. Since the defendants were unmistakably bailees, they were not absolved from liability merely because they notified Martin that it could recover the scows. This point was treated in the case of Mid-America Transportation Co. v. St. Louis Barge Fleeting Service, Inc. supra, where the court stated:
"Respondent contends that since the libelant was free, at any time, to take possession of its barge and remove it, that respondent never assumed control or custody of libelant's barge (a necessary requirement to establish a bailment). Such a contention is clearly erroneous". 229 F. Supp. at 411.
Moreover, in view of the tugboat strike it could hardly be said that the plaintiffs were free to retrieve their scows. Hence, the defendants' duty of care as a bailee continued until Martin had a reasonable opportunity to retrieve the scows.
The defendants also stress that Martin had its employee inspect the scows at frequent intervals after they were moored. This latter fact, the defendants contend, negates the element of exclusive control that is required to establish a bailment.
The fact that Martin's employee visited the construction site is not of itself determinative of either the existence of the bailment or the bailees' duty and liability. In Kenny v. City of New York, 108 F.2d 958, 959 (2d Cir. 1940), the City of New York interposed a similar defense. In the Kenny case the owner of a damaged scow ...