
    SHAMROCK TOWING CO., Inc., as owner of THE scows SHAMROCK NO. 75 and THE THOMAS J. GANTLEY, Li-belant, v. HUGHES BROTHERS, INC., Merritt-Chapman & Scott Corp. and Concrete Conduit Corporation, Respondents.
    United States District Court S. D. New York.
    May 4, 1961.
    
      Alexander, Ash & Schwartz, New York City, for libelant; Edward Ash, New York City, of counsel.
    Hill, Rivkin, Middleton, Louis & War-burton, New York City, for respondent Hughes Brothers, Inc.; Henry C. Eiden-bach, New York City, of counsel.
    Foley & Martin, New York City, for respondent Merritt-Chapman & Scott Corp.; John H. Hanrahan, Jr., New York City, of counsel.
    ■ Macklin, Speer, Hanan & McKernan, New York City, for respondent Concrete Conduit Corp.; Gerald J. McKernan, New York City, of counsel.
   DIMOCK, District Judge.

In this admiralty suit, libelant, Shamrock Towing Co., Inc., hereinafter “Shamrock”, seeks to recover compensation for damage to its two deck scows, Shamrock Ño. 75, hereinafter “the No. 75”, and Thomas J. Gantley, hereinafter “the Gantley”. Shamrock alleges that the damage was caused by the negligence of respondents Concrete Conduit Corporation, hereinafter “Concrete Conduit”, and/or Merritt-Chapman & Scott Corp., hereinafter “Merritt-Chapman”, in loading the scows. Shamrock further alleges that respondents Hughes Brothers, Inc., hereinafter “Hughes”, and Merritt-Chapman were respectively charterer and sub-charterer of the scows. Shamrock seeks to hold all three liable for compensation for the damage.

I shall consider first the question of the liability of Concrete Conduit for the damage to the No. 75, then the liability of Hughes and Merritt-Chapman for that damage. Then I shall consider the liability of the respective respondents for the damage to the Gantley in the same order.

At the root of the trouble is the loading of heavy concrete girders with pieces of dunnage between them and the decks of the scows instead of directly upon the decks. The result of the use of the dunnage was that the weight of the girders, instead of being distributed, was concentrated at two points and broke the members supporting the decks. In opposition to Shamrock’s position it is claimed, among other things, that the girders were what is known as pre-stressed and could not be laid flat on the deck since they would not stand contact except at the two points where they rested on the pieces of dunnage and that Shamrock consented to the manner in which they were loaded.

Precrete Inc., a corporation under the same control as Concrete Conduit, gave an order to Merritt-Chapman to transport by scow 32 concrete beams from Flushing Creek to the foot of West 39th Street, North River, the scow to be loaded by Precrete.

Shamrock demised the No. 75 to Hughes under the customary New York Harbor oral charter. It is conceded that she was represented as capable of carrying 400 tons. Hughes made an agreement with Merritt-Chapman to rent the No. 75, from July 13, 1954 in the afternoon through July 15, 1954 in the afternoon, for carriage of 32 concrete beams 21 inches by 32 inches by 64 feet, weighing 12 tons each; to tow the scow light to the Tully & Di Napoli dock in Flushing Creek; to tow her loaded to the foot of West 39th Street, North River, on the afternoon of July 14 and to tow her light to her owner on the afternoon of July 15. Demurrage was to accrue at $30 a day after a five day period.

The No. 75 was towed on orders by Hughes from Weehawken to the Tully & Di Napoli dock on July 13. On the morning of July 14 a representative of Concrete Conduit looked over the No. 75. He testified that he saw broken deck planks, signs of hard usage and dryness and that these led him to doubt the fitness of the scow. The scow captain had discovered that one or more seams needed caulking and telephoned to Shamrock to send a caulker. The caulker arrived and went to work but a controversy continued as to whether the No. 75 would carry the approximately 400 tons that the 32 girders weighed. There was much telephoning to the offices of all parties concerned while loading was held up. Final-]y, at some time past mid morning, Concrete Conduit’s crew began loading the No. 75. They laid two pieces of dunnage athwartship. These were 33 feet long and were of thickness and breadth variously described all the way from 3 x 8 to 4 x 14. The barge captain and a runner for Shamrock protested that the dunnage would go through the deck planking with such a load as was planned but the loading continued.

About 2:30 p. m. Shamrock’s president arrived because of the continued claims that the No. 75 could not carry all the girders. At that time a bottom tier of about 13 girders was in place and a second tier was either being or was about to be loaded. Some time during the afternoon the president told Concrete Conduit’s foreman that it was all right to put 400 tons on the scow. The president says that it was not until later, some time after four o’clock, that he learned from Shamrock’s runner that all the load was being put on two pieces of dunnage. The runner went below deck to inspect and while he was there a cracking noise was heard. He testifies that he saw the stringers break and retreated to the deck. The president testifies that, when the runner came up and told him that all the load was resting on two pieces of dun-nage, he then told Concrete Conduit’s foreman that he had better hold up and said “Let’s start taking them off.” He says that he told the foreman that the damage had been done so that there was no reason to take all of the girders off.

The Shamrock president’s visit to the place where the scow was being loaded was with the intention of making sure that the controversy over the fitness of the scow had been taken care of. The president admits that his runner told him that the whole load was being put on two pieces of dunnage. The runner says that he told the president this as soon as he got to the scow about half past two. If so the president had knowledge of what was going on and made no protest until an hour and a half later. The president, however, says that he was not told that the girders were being loaded on dunnage until just before his protest. It is incredible that in this atmosphere of doubt as to the scow’s capacity the runner withheld this information from his boss while the danger of damage was increasing with the addition of each girder. I find that Shamrock’s president knew of the manner of loading at half past two and made no protest until four o’clock.

He makes no pretense that he thought the dunnage was being so placed that the concentrated load would not injure the scow.

We have then the case of the president of a corporation who made no protest although he knew that the scow that it had demised was being abused in a way which would in the natural course result in injury to the scow. Nevertheless his knowledge and inaction did not affect his corporation’s right to damages. It is not enough that one who has demised a vessel knows that the stevedore employed by the charterer is treating his ship in a way likely to injure it and yet fails to protest. The stevedore assumes the responsibility for proper loading of the vessel. The owner who has demised the vessel has no control over the stevedore’s actions. Doubtless the stevedore could obtain absolution by disclosing the fact that there was a substantial risk of damage and by getting an advance release from the owner. Mere silence of the owner when he happens to see the improper loading in progress does not, however, absolve the stevedore from liability. See United States v. The Bull Steamship Line, 2 Cir., 274 F.2d 877; McGeeney v. Moran Towing Corp., 2 Cir., 149 F.2d 791.

After the damage had been done, three of the top tier of six girders were removed and the No. 75 was towed to the North River destination without "further incident.

Since there was no effective consent by Shamrock to the loading method adopted, there is no substance to the position taken by one or more of respondents that, though there was no way of loading the girders on the scow without injuring the scow, Shamrock consented to the method adopted.

This position is also defective in that there were at least two ways in which the girders could have been loaded on the No. 75 without injury to the scow or the girders.

First, the girders could have been loaded on the No. 75 so that their permissible bearing points were supported by two of the transverse trusses in the scow’s frame. There was testimony, unexplained but uncontradicted, that the pre-stressed concrete girders could not withstand contact with support except within one foot of each of two bearing points 43 feet apart, one 7% feet from one and the other 11% feet from the other end. This was the ostensible reason for raising the girders on dunnage at these two points. The No. 75, however, had a series of transverse trusses of longleaf pine as part of her frame separated on 8-foot> 4-inch, centers.

Each of these trusses was amply strong to support one half of the load of approximately 264 tons made up of the 22 girders that were loaded. Two of these trusses, five' spaces apart, could be selected, giving a span of 41 feet 8 inches between centers. The trusses were 10 inches wide, however, so that the outside edges of the bearing surfaces were apart by 42 feet 6 inches while the inside edges of the bearing surfaces of the girders could be as close together as 41 feet, giving a lap of a total of 1 foot 6 inches or 8 inches at each end. This would have permitted the use of 8 x 8 dunnage which would be much stronger than the 3x8 which was the minimum estimate of the size of the dunnage actually used and even stronger than the maximum 4 x 14.

Another method of loading the girders without injury to themselves or to the scow would be to use heavy pieces of timber, say 12 x 12, as bridges between a pair of transverse trusses near one end of the scow and a pair of transverse trusses at the other end of the scow selected so that when transverse dunnage was placed across them it would support girders by contact at the permissible points of support 43 feet apart on each.

In opposition to Shamrock’s suit the claim of unseaworthiness of the No. 75 is made, based upon the fact that she needed caulking, upon the above summarized testimony as to the condition of her deck and upon expert testimony as to the inferences to be drawn from the appearance of the damaged timbers in photographs in evidence. I find that the No. 75 was seaworthy. I accept the testimony of libelant’s expert that the girders, loaded as they were in this case, would have caused the damage to a seaworthy scow.

Concrete Conduit is thus liable to the owner, Shamrock, for the damage to the scow on general principles of negligence.

Neither Hughes nor Merritt-Chapman were in any degree negligent. No employee of either directed the loading. Were either or both liable for the damage by virtue of their relationship to the scow?

Hughes is clearly liable. Even though the damage is not the result of its negligence, a charterer is liable for damage to a vessel caused by the negligence of a third party during the charter period. Roah Hook Brick Co. v. Erie Railroad Co., 2 Cir., 179 F.2d 601; O’Donnell Transp. Co., Inc. v. M. & J. Tracy, Inc., 2 Cir., 150 F.2d 735.

The question is more difficult in the case of Merritt-Chapman. I find that Merritt-Chapman’s relation to the scow was that of a sub-charterer. Hughes agreed to supply the scow and to furnish the necessary towing. Merritt-Chapman argues that such an arrangement is a mere contract for transportation like a railroad’s agreement to carry a carload of steel. The cases are different however. Here Hughes did more than agree to obtain transportation. It made an agreement to turn over a specific scow to Merritt-Chapman. A sub-charterer assumes a non delegable duty to the owner to care for the vessel. Seaboard Sand & Gravel Corp. v. Moran Towing Corp., 2 Cir., 154 F.2d 399, 402.

I now pass to the question of liability for damage to the Gantley. The day after the damage to the No. 75 a representative of Hughes telephoned Shamrock’s president and said that the No. 75 had not taken the full load and asked that Shamrock have another boat at the Tully & Di Napoli dock in the morning. Shamrock accordingly sent the Gantley. She differed from the No. 75 in that she had three interior bulkheads instead of the transverse trusses. Again the boat was loaded with the girders resting on athwartship dunnage. This time the improper method resulted in cracking one of the athwartship beams in the second bay from the port side, a 12 x 12. The crack was a fresh break and went about half through and was about half an inch wide at the largest end.

I find that the damage resulted from an improper method of loading.

Again the claim is made that the method of loading was acquiesced in by Shamrock since Shamrock’s presideiit knew of Concrete Conduit’s way of loading the girders before the loading of the Gantley was started. Shamrock’s president testified, however, that, after the injury to the No. 75 which resulted from the placing of the girders on dunnage, he made suggestions to representatives of Concrete Conduit with respect to other methods of loading and that he thought some heed would be taken of those suggestions.

I find that there was no acquiescence.

So far as the liability of the various respondents is concerned, the problem of damage to the Gantley does not differ from the problem of damage to the No. 75. The evidence is almost entirely circumstantial but it is sufficient, in ,the absence of any indication to the contrary, to establish the finding that Hughes was charterer and Merritt-Chapman sub-charterer of the Gantley under the same terms as they had been charterer and sub-charterer of the No. 75. Their liability follows from the same reasoning as was applied in the case of the No. 75.

Concrete Conduit, Hughes and Merritt-Chapman are liable to Shamrock for the damage to the No. 75 and the Gantley described in this opinion. The suit will be referred to a commissioner to fix the amounts of the damages.

This opinion is intended to embody findings of fact and conclusions of law. If additional ones are required requests may be submitted.

Settle order on notice. 
      
      . Shamrock made no representation that the No. 75 ■would earr-y 32 girders with critical bearing points. The reason that the number 22 is important is that it was when 22 were improperly loaded that the damage occurred. It would not have occurred if the 22 had been properly loaded. ning the conduct of a public banking business while First Bank Stock Corporation continues to own stock in Valley State Bank will constitute a violation by First Bank Stock Corporation of Section - 3 of the Bank Holding Company Act."
     