64 F.2d 11 | 2d Cir. | 1933
The .covered barge Castleton was chartered to the United States Gypsum Transportation Company under an oral charter, later confirmed by' letter, which provided in the usual manner in New York Harbor that the owner would provide and pay the bargee who accompanied the boat. Payment at a stipulated rate per day was agreed to with the provision that, if overtime pay for the bar-gee became necessary, the owner would be reimbursed for that by the charterer. There’ was no payment for overtime, however. ’ The charterer was a subsidiary of the libelant.
The libelant loaded a cargo of 390 tons of plaster on the Castleton at its plant on Staten Island for which the bargee signed, a bill of lading for transportation to the pier at 135th street and East River.
The barge was seaworthjf and the load was within its capacity and well' trimmed to give the boat an even keel. She was towed to destination and berthed at the pier about 1:30 a. m. November 6,1928. As loaded, she drew from seven to eight feet of water. The tide was then too low to permit her going alongside the- bulkhead. About 6' o’clock in the morning, the tide having risen sufficiently, the bargee hauled her up to the bulkhead and-made her fast. As that was’-feleotion day, no work was done but the bargee remained aboard and tended his lines. The boat rode the -low tide with slack lines that afternoon without incident by merely going aground with a slight list offshore. The bottom was black river mud, and this boat as well as the Balsam, a barge a few feet longer and a few inches narrower, had within the two months just previous often lain safely at this berth With similar loads through changes in the tide. There was some evidence that bags of plaster thrown overboard from previous loads had made this a foul berth, but the District Court found that such plaster, even if it had hardened before being thrown into the water, would there soon become soft, and that no dumping of plaster as claimed had made the berth foul.
At about 6 p. m., November 6th the wife and two children of the bargee went ashore to spend the night. He remained bn board until about 11 p. m. when he also went ashore to get the election returns and to get something to eat. At that time the barge was made fast with two breast lines, one to each of the offshore comers; and two spring lines, one to each of the inshore corners.. This was the customary method, and the lines were all slack. The tide was then falling. About midnight, the bargee returned and found that the boat had taken the ground some-five or six feet from the bulkhead. He could neither pull it in nor get on board with the ladder he had used to go ashore. His lines were still slack enough to -hang in the water, and he could slack them no more without going aboard. He then left and returned early in the morning to find that the barge had overturned and dumped its cargo. Three of the lines were broken. Her stem breast line alone still held. Sh.e then lay with her bow-some thirty feet out from the bulkhead and her stem farther offshore. The tide at this place has a normal fall of about six feet, and on this night the fall was greater than it had been since the previous May. It was 22.8 inches below mean low water according to the tidal gauge at "Ward’s Islánd, and such a fall is somewhat unusual. Upon this state of facts, the District Court reached' the conclusion that the bargee’s negligence in failing to
The responsibility for this negligence is that of the barge, since the bargee was furnished and paid by the barge owner. It was his duty to the caigo to tend his lines without being negligent. Dailey v. Carroll (C. C. A.) 248 F. 466; C. F. Harms Co. v. Turner Const. Co. (C. C. A.) 3 F(2d) 591. See, also, Id. (D. C.) 290 F. 612. As no negligence on the part of the charterer was shown and the owner was not privy to the contract of carriage, they were not liable in personam, and the libel as to them was properly dismissed.
Decree affirmed.