310 F. Supp. 471 | S.D.N.Y. | 1970
Plaintiff sues in admiralty to recover for damage to its scow “Mona” allegedly caused by the defendant. The court finds that plaintiff has failed to prove by a fair preponderance of the evidence the liability of the defendant. Judgment is rendered for the defendant, and the complaint is dismissed.
The facts in this case are not essentially in dispute.
Defendant Consolidated Iron & Metal Company, Inc. engages in the business of processing and selling scrap, much of which is first pressed into bales varying somewhat in size but generally two feet square by five feet long and weighing about 1200 pounds.
The defendant has used plaintiff’s scows for a number of years to transport scrap to various destinations within the Port of New York. As a result of these dealings, the parties had an established procedure for the hiring of a scow. The defendant would inform plaintiff by telephone of the readiness for shipment of a certain quantity of scrap, its destination and the time when the scow was desired. The plaintiff would then choose and arrange for the scow and contact a towing company to deliver it to the defendant's bulkhead at Newburgh. After loading was complete, defendant, would notify plaintiff who would again arrange for towage to the desired destination. No written argeement or memorandum of this arrangement was kept except a logbook entitled “Record of Charters and Freight, No. 5, B. W. King”
In accordance with past practice, defendant notified plaintiff on May 29, 1963 that it had a cargo of No. 2 baled scrap for transportation to Pier 7, Jersey City, New Jersey. Plaintiff arranged for the Mona to be towed to Newburgh. Upon arriving at the defendant’s bulkhead, the barge captain, Axel Fredenlund, secured the scow adjacent to the bulkhead and thereafter tended the lines as necessary. He testified that he inspected the Mona prior to any loading and that he observed no damage.
The bales were loaded on the Mona by a crane operated by one Leroy Williams, an employee of the defendant, who had another employee of defendant spotting the bales for him on the scow until it was loaded high enough for him to see the work.
After the Mona had been loaded, the barge captain testified that he inspected the scow and found broken internals — the stringers which support the deck.
Miss King referred to the arrangement entered into with the defendant as a “standard New York oral [harbor] charter”.
To create a demise [charter] the owner of the vessel must completely and exclusively relinquish ‘possession, command, and navigation’ thereof to the demisee. [citations omitted] It is therefore tantamount to, though just short of, an outright transfer of ownership. However, anything short of such a complete transfer is a time or voyage charter party or not a charter party at all. 369 U.S. at 699-700, 82 S.Ct. at 1096.
The plaintiff has not proven any such relinquishment of all control here.
The cases cited above
Since the arrangement between the parties was not a demise charter, plaintiff cannot rely upon the presumption that the damage was occasioned by the negligence of the charterer, See In re Rice’s Petition, 294 F.2d 272 (2d Cir. 1961); The Etta, 37 F.2d 952 (E.D.N.Y.1930). Rather, the plaintiff must prove negligence on the part of the defendant and that this negligence was the proximate cause of the damage. Rogers v. Moran Towing & Transp. Co., 20 F.2d 558, 560 (2d Cir. 1927); O’Donnell v. Schiavone-Bonomo Corp., 1958 A.M.C. 2196 (S.D.N.Y.1958) (not officially reported); Woodward & Dickerson, Inc. v. I. P. Thomas & Son, Co., supra. The plaintiff has failed to prove negligence on the part of the defendant. The court, after weighing all the evidence and the credibility of the witnesses, finds that plaintiff has failed to prove that the defendant was negligent in his loading process
Even if this court had found that there was a demise charter between the parties herein, defendant has produced sufficient evidence to rebut the presumption that the damage to the Mona was the result of any negligence on his parf. See, e. g., In re Rice’s Petition, supra; Seaboard Sand & Gravel Corp. v. American Stevedores, 151 F.2d 846 (2d Cir. 1946) .
In addition, the plaintiff has failed to establish the prior condition of the Mona through any evidence which is binding upon the defendant. To prove prior condition, plaintiff must do more than merely prove that the barge captain thought it was in good condition. Furthermore, the barge captain should have stopped any improper loading by the defendant, if such had occurred, and failure to do so would be negligence chargeable to the plaintiff. See O’Donnell Transp. Co. v. Tidewater Iron & Steel Co., 90 F.Supp. 953 (D.N.J.1950); The Daly No. 40, 76 F.Supp. 700 (E.D.N.Y. 1947) . Thus, even if a demise charter existed between the parties, plaintiff has failed to sustain his burden of proof.
All motions upon which decision was reserved at trial are denied.
The foregoing shall constitute the court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
It is ordered that the complaint filed herein is dismissed, with costs to the defendant.
So ordered.
. See generally Pre-Trial Order, dated Xov. 23, 1966.
. Subsequent to the damage, repairs were not deemed practicable, and the scow was disposed of by the plaintiff.
. See Trial Minutes, p. 201.
. Plaintiff's Exhibit 1.
. See Plaintiff’s Exhibits 1, 2 & 6.
. See Trial Minutes, pp. 10, 26.
. See Trial Minutes, p. 11.
. See Trial Minutes, p. 68.
. See Trial Minutes, pp. 166-167. However, this examination was cursory in nature, and it is not clear that anyone examined the internals of the scow prior to loading.
. See Defendant’s Exhibit S. The survey does not indicate any major damage; however, it does indicate numerous minor items which would have required attention.
. See, e. g., Defendant’s Exhibits O, P, Q & R.
. See, e. g., Defendant’s Exhibits A-F.
. The question of age and condition are material to this case in as much as the defendant contends that the Mona’s damage could liave been the result of old age and improper maintenance.
. See Trial Minutes, pp. 253-254, 266-267.
. See Trial Minutes, pp. 66, 206-14.
. See Trial Minutes, pp. 97-100, 102-06.
. See Trial Minutes, pp. 263-68, 205-08.
. See Trial Minutes, p. 104.
. See Trial Minutes, pp. 14-15.
. It must be remembered that the barge captain lived aboard the scow and that be would be on board when the “damaged” scow was towed elsewhere. Thus, not only the vessel’s, but his own, safety was at stake.
. See Trial Minutes, pp. 68-69.
. See Trial Minutes, pp. 158-161. Once he was the only surveyor, and, another time, a Mr. Lally was present.
. See Plaintiff’s Exhibit 5. This formal survey is some 2% months after the alleged damage and after the scow made at least one more trip. See Trial Minutes, pp. 19-20.
. The insurance carrier subsequently disclaimed all liability.
. Compare Plaintiff’s Exhibit 5 with Defendant’s Exhibit S.
. Trial Minutes, p. 10. See Pennsylvania R. R. Co. v. McAllister Bros. Inc., 137 F.Supp. 788 (S.D.N.Y.1956).
. See McGeeney v. Moran Towing Corp., 149 F.2d 791 (2d Cir. 1945); Edward G. Murray Lighterage & Transp. Co. v. Pennsylvania R. R., 130 F.2d 199 (2d Cir. 1942); Ira S. Busliey & Sons v. W. E. Hedger & Co., 40 F.2d 417 (2d Cir. 1930); Rogers v. Moran Towing & Transp. Co., 20 F.2d 558 (2d Cir. 1927); R. D. Wood Co. v. Phoenix Steel Corp., 211 F.Supp. 924 (E.D.Pa.1962); Pennsylvania R. R. Co. v. McAllister Bros. Inc., supra, note 26; Tanker Hygrade No. 2, Inc. v. Barge Lines, Inc., 148 F. Supp. 177 (S.D.N.Y.1956).
But see dictum in Cory & Son v. Dorman Long & Co., [1936] 41 Com.Cas. 224, that it is doubtful if a true demise charter can be entered into except in writing. See also Gilmore & Black, The Law of Admiralty § 4-20 (1957); Scrutton, Charter parties and Bills of Lading 4-8 (17tli ed. 1964).
. 369 U.S. 698, 82 S.Ct. 1095, 8 L.Ed. 2d 205 (1962). See United States v. Shea, 152 U.S. 178, 14 S.Ct. 519, 38 L. Ed. 403 (1894); Baumvoll v. Gilchrest & Co., [1892] 1 Q.B. 253, 259; Gilmore & Black, Law of Admiralty 215-217 (1957); Scrutton, Charter parties and Bills of Lading 4-8 (17th ed. 1964).
. Footnote 27. See also In re Rice’s petition, 294 F.2d 272 (2d Cir. 1961) (S.D.N.Y. opinion in 1960 A.M.C. 419); New York Central R. R. v. New York, N. H. & H. R. R., 1959 A.M.C. 1213 (S.D.N.Y.1959); O’Donnell v. Schiavone-Bonomo Corp., 1958 A.M.C. 2196 (S.D. N.Y.1958).
. Even the plaintiff’s barge captain admits that the scows were generally loaded in the same manner as here and that no damage was usually occasioned by such loadings. See Trial Minutes, pp. 106-108.
. The court will not speculate on how the damage to the scow actually occurred. The basis of its holding is solely the failure of proof by the plaintiff. However, defendant’s contentions that the damage could have been caused by old age, improper maintenance, prior existing conditions, post event loading, or the unloading of this shipment have not been refuted by the proof of the plaintiff.