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GMC v. PENNSYLVANIA R.R. CO.

April 12, 1973

GENERAL MOTORS CORPORATION, Plaintiff,
v.
PENNSYLVANIA RAILROAD COMPANY, Defendant and Third-Party Plaintiff, v. LLOYD BRASILEIRO (PATRIMONIO NACIONAL) et al., Third-Party Defendants. GENERAL MOTORS CORPORATION, Plaintiff, v. LLOYD BRASILEIRO (PATRIMONIO NACIONAL) and John W. McGrath Corp., Defendants


Gurfein, District Judge.


The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

In the small hours of a Saturday morning, March 5, 1966, the lighter 212 was left by a Pennsylvania Railroad ("Penn") tug at the slip on the North side of the pier at 30th Street, Brooklyn. The tug Captain selected the berth, seeing "not a soul" on the pier (TM 140), *fn1" and moored the scow leaving her unattended. She was laden with eight tractors. General Motors ("GM") had shipped the tractors and forty other items from its Hudson, Ohio plant to New York to be delivered at the order of GM to an ocean carrier for export to Brazil. The lighter was observed by a passing tug as late as 3:30 p.m. on Sunday. At some time before 8 a.m. on Monday, March 7, the lighter sank. Three days later she was located about 100 feet from the pier by a diver. Some of the cargo recovered was sold in salvage.

 GM sues the rail carrier, Penn, and also Lloyd Brasileiro ("Lloyd"), the steamship line which was the lessee of the pier as well as the connecting carrier; it also sues John W. McGrath Corp. ("McGrath"), the stevedore on the pier.

 Penn in turn sues Lloyd, McGrath and McRoberts Protective Agency, Inc. ("McRoberts"), a watchman service. Lloyd sues McGrath; and McGrath sues McRoberts and Lloyd in separate cross-claims. GM claims damages of over $335,000.

 The actions were consolidated and a five day trial to the Court without a jury was had on the issue of liability only. The issue of damages was reserved for later disposition.

 HOW AND WHY LIGHTER 212 WAS LEFT AT THE PIER

 Penn issued uniform domestic straight bills of lading for the shipments. Upon the arrival of the tractors and parts in New Jersey written orders were given by GM to deliver the shipment to Lloyd at the 30th Street pier, Brooklyn. That pier was leased by Lloyd. McGrath had a contract with Lloyd to render certain services at the pier. The eight tractors and boxes of spare parts were transferred by Penn to its lighter 212 which was then towed by Penn tug from Greenville, New Jersey and moored alongside the Brooklyn pier as described.

 The S/S Laide Colombia, owned and operated by Lloyd, was scheduled for departure on March 9. GM and Lloyd had on February 17, 1966 entered into a freight contract for the carriage of six tractors on the S/S Laide Colombia which was extended on February 23, 1969 to cover two more tractors. GM issued written delivery orders to Penn to deliver the tractors on March 1 and 3, 1966. Copies of the delivery orders were sent to Lloyd. The tractors were actually towed to the Lloyd pier on Saturday morning, March 5.

 There is no evidence of why the tractors were towed to the pier on Saturday morning. The Captain of the Penn tug was told to do so by his dispatcher who was not called as a witness. No one in the hierarchy of Penn's ocean cargo department has explained the reason for the order. Lloyd did not ask that the tractors be brought to the pier that day. "Permit dates" of March 1 and March 3 had been orally fixed by Penn and Lloyd for the delivery of the tractors to the vessel, which generally meant that they could be delivered at any time thereafter and before the ship sailed.

 Since the tractors were large and heavy equipment, (over 45,000 lbs. each) special arrangements had to be made for their loading and stowage. The evidence indicates that, in dealing with that type of cargo, the ship would normally give rather precise instructions on when delivery was to be made to insure coordination for the orderly loading of the vessel according to plan (TM 77).

 T. Ruggieri, the Lloyd loading superintendent, testified that he did not expect the tractors to arrive until Lloyd called for them according to the custom with respect to heavy lifts (TM 461). DeSantis, Lloyd's head loading clerk, gave similar testimony: "[We] try to mesh it in when we have our vessel to coordinate the cargo coming that is heavy and has to go alongside the vessel." (DeSantis, 89).

 When the Penn tug Captain, Bryson, left the lighter at the pier he did not deliver his shipping documents to anyone nor did he notify anyone on the pier or Lloyd of the arrival of the cargo. Though Captain Bryson saw "not a soul" on the pier, the lighter was, in fact, soon noticed by Cornelius Williams, the harbormaster at the pier who was employed by McGrath. He saw lighter 212 in her berth between 8 a.m. and 9:40 a.m. when he observed her to be riding normally (Williams, 13, 67). Williams was on the pier that Saturday morning, not in his capacity as harbormaster, but as part of a gang to "handle lines" for the sailing of S/S Laide Colombia (Williams, 13, 50, 52, 60). His observation of the 212 was casual. He did not know whether its arrival had been notified to anyone (Williams, 43, 60).

 There is a general custom in the Port of New York permitting tugs to tie up lighters at steamship piers over the weekend. There was no convincing proof that this custom included heavy lift equipment (cf. TM 414-16; 425). It was also established that dock receipts are generally not given by the ocean carrier until it has inspected the merchandise delivered.

 It was stipulated by Lloyd and GM that the space booking (Pltf. Ex. 6) was made with the understanding that any cargo delivered to Lloyd was to be carried by Lloyd as a common carrier under Lloyd's standard bill of lading. *fn2"

 HOW LIGHTER 212 CAME TO SINK

 There is practically no solid evidence on why lighter 212 sank. There is a good deal of speculation and some expert testimony on the subject. It is likely that she sank because she had become impinged on some part of the pier during a rising tide which caused her to list to port with a consequent shifting of cargo that ultimately made the manholes on the deck come under water and fill with water. The parties disagree on what made her become impinged on a part of the pier.

 She was moored with her portside parallel to the pier, her bow facing the river and her stern facing the shore. She was fastened with two lines. There were no independent fenders. *fn3" After she sank, the diver determined that she was lying on the river bottom about 100 feet from the pier and that the tractors were near the portside of the lighter and next to the pier.

 Penn's expert Sheridan is a marine surveyor. He examined the 212 shortly after the accident and found that there was no structural cause of the sinking (PRR Ex. E); the underwater section of the hull and all six compartments were found to be watertight (TM 271), indicating that enough water to sink her must have come in through the manholes on the deck. He also found that a bitt located about 21 feet from the bow and the forward section of the port guard rail from about 12 feet from the bow aft for 75 feet were missing (TM 299, 649-50, 665; PRR Ex. E).

 Sheridan concluded that, in his opinion, the port side of the 212 had become entrapped under some protruding portion of the pier during a rising tide. This in turn caused the tractors to slide over to port, pushing the port side down further and permitting water to enter the manholes. As the hull quickly flooded, the lines to the pier snapped under the great weight and the tractors tumbled over the port side, coming to rest on the bottom next to the pier (TM 276-78).

 There was no evidence that there actually was a protrusion from the pier at the time of the accident. Nor did examination after the accident establish the existence of such a condition. Captain Axiotes, a marine surveyor retained by Lloyd after the accident, made an examination of the pier in April 1966. He examined the pier at low tide and found nothing protruding into the slip (TM 391-92). Mr. Rockey, Penn's assistant superintendent for marine operations, was on the pier shortly after the loss (TM 346, 348). Also F.J. Gerace of Penn and K.P. Felsberg, Jr., representing Penn, were in the company of Captain Axiotes when he examined the pier. None of these was called to testify on whether or not there was a projection from the pier. Sheridan himself did not examine the pier (TM 279, 310). Captain Bryson testified that the ...


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