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THE OLD RELIABLE et al.

(District Court, N. D. West Virginia.

March 6, 1919.)

No. 880.

Towage <§=>11(10) — Damage to Tow — Negligence of Tug — Abandoning Tow.

A steamer, which contracted to tow two harges up the Ohio river, held liable for damage to barges and cargo, caused by their being left at an intermediate point, where, after nine days, they were broken loose by a rise in the river and carried down stream.

In Admiralty. Suit by the Dittle Kanawha Dog & 'Tie Company against the steamer Old Reliable. Decree for libelant.

Dorr Casto and Reese Blizzard, both of Parkersburg, W. Va., for libelant. •

Dowrie C. Barton, of Pittsburg, Pa., and George W. Johnson, of Parkersburg, W. Va., for claimants.

DAYTON, District Judge.

The controversy here grows out of a verbal towing contract. As frequently occurs touching such contracts, distinct disagreements exist as to what the terms of the contract were. The cause was referred to John F. Daird, appointed a commissioner for the purpose, to take the evidence and report with all convenient speed thereon. He has fulfilled this duty and made a report, to which both sides have filed exceptions, I have very carefully read and studied the voluminous volume of testimony returned by him, upon which he has based his findings of fact. I am fully in accord with his findings, and convinced that the exceptions of both sides should be overruled. As to the law governing, fully recognizing the principle that a tug is not an insurer of the tow in its charge, but only required to exercise reasonable care, and only liable for negligence in such exercise, yet it is enough to say here that, establishing the contract to have been to deliver the two barges to McKeesport, Pa., and not to Sisters-ville, W. Va., as claimed by claimants, which the evidence in my judgment demands should be done, the negligence of the tug in substantial*113ly abandoning these barges and leaving them at Sistersville for days, with no proper care and indifferently moored and tied up, becomes very apparent and fully proven. I adopt the report of the commissioner and direct it to be made a part hereof, and decree will be entered in accord therewith.

Commissioner Laird’s Report.

I find the facts as follows:

About October 1, 1917, the steamer Old Reliable, by its officers and agents, made a contract with libelant to tow four barges loaded with railroad ties up the Ohio river to McKeesport, Pa. One was to be towed from New Mar-tinsville, W. Va., and the other three, numbered 68, 131, and 111, respectively, wore to be towed from Parkersburg, W. Va., to said city of McKeesport, Pa. That the said steamer, shortly after October 1, 1917, towed said barge from New Martinsville, W. Va., to said city of McKeesport, Pa., and delivered it as per contract, for which said service libelant paid said steamer.

On October 20,1917, said steamer Old Reliable came to Parkersburg, W. Va., and after obtaining a check for $81 on account in order to purchase coal, received from libelant said two loaded barges, 68 and 131, which said barges said steamer proceeded to tow up said Ohio river, leaving Parkersburg, W. Va.. October 21, 1917, about 7 o’clock a. m. On October 22, 1917, about 3 o’clock a. m., said steamer arrived at Sistersville, W. Va., where its officers and agents undertook to land the said two barges and moor them to the river bank. This was done, and said two loaded barges remained at said landing at Sisters-ville, W. Va., until October 30, 1917, when a rise in the Ohio river caused them to break from their moorings and drift down the river with the current. Barge 131 was caught at Raven Rock, W. Va., where libelant, after notice to said steamer, the owners and claimants thereof, caused same to be unloaded and placed the ties contained therein on board of railroad cars and thus shipped them to their destination. That said barge 131, however, was beached and totally wrecked near Raven Rock, W. Va.

Barge 68 floated down the Ohio river until it reached Parkersburg, W. Va., where it collided with one of the piers of the Baltimore & Ohio Railroad bridge and was wrecked; the cargo of ties with which it had been loaded being thrown into the river and almost all of them were lost A few were salvaged. At the time of its loss, said Barge 68 contained 2,335 No. 1 cross-ties and 290 No. 2 cross-ties, and said No. 1 ties were worth at their point of destination, as per contract, 93 cents each, and said No. 2 ties were worth 83 cents each at said point.

Barge 111 was never received by said steamboat Old Reliable, its officers, agents and claimants, hut remained at libelant’s landing at the port of Park-ersburg, W. Va., from October 20,1917, to February, 1918, where it was frozen up in the ice of the Little Kanawha river, and then by reason of a rise in the river the said barge was carried down stream to the mouth of the Little Kanawha river, where it remained for a time in an ice gorge, and at which place libelant unloaded the ties therefrom and shipped them by rail to McKees-port, Pa. That said barge was afterwards carried out in the Ohio river with the ice and floated down the river to Ptuneroy, Ohio, where it was caught.

Prior to its departure from. Parkersburg, W. Va., with said barges 131 and 68, libelant loaned to said steamer some barge chains, two ratchets, two joints of siphon pipe, one three-piece swing, one 2%-ineh siphon, also two 150-foot lines to be used in tying said barges at. thoir point of destination. Said steamer Old Reliable returned all of said borrowed property (except said two lines) to the Parkersburg wharf boat May 22, 1918.

The steamer Old Reliable, claimants and defendants, offered testimony tending to prove that the contract was that they were to tow said barges to “pool water” at Sistersville, W. Va., and that they did so, and tied said barges at. said port, as per an agreement with one G. W. Justice; that said barges were received there by libelant’s agent, 10. B. Frazier, and that their responsibility for said barges ceased at that time; that said barges were unseaworthy and said tie lines loaned to them by libelant were in poor condition; that said *114barges could not have been safely towed at that time (October 22, 1917), on account of the strong current in the Ohio river; that dam 17 in said river is situated near Raven Rock, W. Va., and it, together with several other dams between Parkersburg, W. Va., and Pittsburgh, Pa., were down, causing a strong current in the river; and, further, that said steamer Old Reliable did not have power sufficient to propel both of said loaded barges up said river against said current.

It was further shown by the records of the United States engineer’s office at Wheeling, W. Va., that dam No. 18 in the Ohio river,' near Parkersburg, W. Va., was down from October 21, 1917, to November 5, 1917, and that the stages of water in the river were as follows:

October 21 .12.0 feet

“ 22 11.9

“ 23 11.3

“ 24 10.5

“ 25 11.0

“ 26 14.7

“ 27 18.3

Dam No. 17 was also down, and the stages of water were as follows:

October 21 .11.3 feet.

“ 22 .11.1

“ 23 10.5

“ 24 9.8

“ 25 10.1

“ 26 13.4

“ 27 16.6

Dam No. 16, near Raven Rock, W. Va., was also down, and the stages of water were as follows:

October 21 12.8 feet.

“ 22 12.8“

“ 23 12.3 “

“ 24 11.1 "

“ 25 11.6 “

26 16.3 “

27 20.0 “

28 .20.1 "

29 19.5 "

30 20.8 “

Claimants and defendants further showed that said steamer Old Reliable left the landing at Sistersville W. Va., October 22, 1917, at 3:30 a. m., with a gasoline barge in tow, and arrived at Pittsburgh, Pa., October 24, 1917, at 1 p. m., and after doing some work on the river in that vicinity came back down the Ohio river, arriving at Sistersville, W. Va., October 27, 1917, at 12:30 a. m., and went on down the river from that point to Catlettsburg, Ky.

The proctors for libelant claim under the said contract that, as a part of said property was lost in transitu, the steamer Old Reliable is liable for the value of said property, the cross-ties, at the port of destination, and the undersigned, after a careful examination of the evidence, finds that the foregoing is the correct view; that said steamer, the claimants and defendants, are liable for the loss of said ties and said barge 68, also for the value of said barge 68, and also the value of the barge 131; that they are also liable for salvage or said barge 131, also 249 ties out of barge 68, also the cost of unloading and loading said ties out of barge 131, also for the value of said two tie lines, and also for the sum of $81, cash advanced by libelant to said steamer, claimants and defendants, to purchase coal at Parkersburg, W. Va.

The undersigned ascertains and fixes the value of said two barges, 68 and 131, at the time of their loss in October, 1917, at $400 each, and finds that said barge 68 contained 2,335 No. 1 railroad ties of the value of 93 cents each, also 290 No. 2 ties of the value of 83 cents each at the point of destination. McKeesport, Pa.; that 249 of said ties, worth 93 cents each, were salvaged ; that the cost of salvage was 25 cents per tie.

I find that the salvage of barge 131, loaded with ties, was $50; that the *115cost of unloading and reloading said ties from said barge was $312.48 and $191.14, respectively: that said steamer Old Reliable, claimants and defendants, are liable for said two tie lines not returned, amounting to $50, also for said sum of $81 advanced by libelant to enable said steamer Old Reliable to purchase coal at Parkersburg, W, Va.; that therefore the following is a correct statement of the account between the libelant and said steamer Old Reliable, claimants and defendants:

The Steamboat Old Reliable to Little Kanawha Log & Tie Co., Dr. 1917.

Oct. 30. To 2,335 #1 ties @ 93«S each..$2,171.55

To 290 #2 ties @ 83^ each. 240.70

$2,412.25

Less 249 ties salvaged, of the value of 93 cents each $231.57

Cost of salvage, 25 cents each. 62.25 369.32

$2,242.83

Value of barge 68 . 400.00

$2,642.83

To salvage of barge No. 331.$ 50.00

To cost of unloading ties from same. 332.48

To cost reloading. 391.14

953.62 To value of barge 131. 400.00

$3,596.45

To 2 250-foot lines.$ 50.00

131.00 Cash advanced for coal. 81.00

Total due libelant from Old Reliable, claimants.$3,727.45

The undersigned disallows all items and charges in libelant’s account relative to barge 131, the unloading and reloading of same, and other expenses connected therewith; also disallows all other charges made by said libelant against the steamboat Old Reliable in libelant’s supplemental and amendatory libel, filed April 29, 1918.

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