#### LOTZ v. THE ELSIE M et al.

A. D. No. 806.

United States District Court S. D. Texas, Houston Division.

June 2, 1950.

DeLange & Hudspeth and Clarence S. Eastham, all of Houston, Tex., for libellant.

T. G. Schirmeyer, of Houston, Tex., for respondents.

KENNERLY, Chief Judge.

This is a Libel by the Libellant E.- G. Lotz against the Tug Elsie M and her owner, L. C. Mosher, doing business as the Mosher Marine Service. Libellant was the owner on or about March 21, 1947 of Barge ABL-11, used in transporting shell, and contracted with L. C. Mosher, the owner of the Tug Elsie M, to tow such Barge, loaded with shell, from the dredge which was the loading point in Galveston Bay to Houston. While the Barge ABL-11, loaded with shell, was being so towed by the Elsie M, she sank in the Houston Ship Channel. This is a *247suit by Libellant against the Elsie M and L. C. Mosher, her owner, claiming they were negligent, for the cost of raising her out of the water, damages, etc.

The facts are as follows:

(a) The Contract between Libellant and Mosher was that the Tug Elsie M, owned by Mosher, should tow the Barge ABL-11, loaded with shell, from the dredge in Galveston Bay, the loading point, to Houston. Mosher’s pay was to be so much per thousand cubic feet for the shell loaded on the Barge. Libellant to be the judge of the quantity of the shell to be loaded.

(b) The Barge ABL-11 was loaded with shell at the dredge on or about March 21, 1947, and left the dredge in tow of the Elsie M to pass through Galveston Bay to the Houston Ship Channel, thence up the Ship Channel to Houston. The Elsie M was in good seaworthy condition. The Barge was -overloaded, with shell piled up to a dangerous height and in a dangerous way, and was listing to its port when she left the •dredge. The Captain of the Tug Elsie M protested that the Barge was overloaded, but was told by a representative of Libel-lant that the loading of the Barge was the business of Libellant and none of Respondents’ business.

I find that neither the Elsie M, nor those in charge of her, nor her owner, were in any way negligent in connection with the loading of the Barge, nor in the way the Elsie M was hooked up to the Barge.

(c) About 11:30 P.M., March 21, 1947, while in the Houston Ship Channel, such Barge began to badly list to the port, dumped her shell into the water, and turned up,side down. She was taken by the Tug to the North bank of the Ship Channel and tied up. There she remained until about 6:30 A.M. the next morning, when she righted herself and sank.

1: — I have carefully listened to and considered the evidence of all the witnesses brought forward by both parties, and have reached the conclusion and find that neither the Tug Elsie M, nor her owner, nor those in charge of her, were in any way whatsoever negligent in handling the Barge either before or after the Barge sank. The capsizing and the sinking of the Barge was proximately caused wholly by the fact that she was overloaded and the negligence of Libellant in overloading her. The conduct of the Elsie M, and those in charge of her, and her owner, was in all respects correct and proper.

Judgment for Respondent has heretofore been noted and upon the filing of these Findings and Conclusions, Decree should be drawn and presented.