281 F. 279 | 2d Cir. | 1922
(after stating the facts as above). The possible liability of the parties sued in personam does not require discussion nor opinion, because it must be admitted that, if the barge is not
“No carrier shall be liable for any loss or damage resulting from * * »• unseaworthiness, or from collision * * * or other accidents of navigation.”
, It is also not necessary to consider whether the exception against unseaworthiness ever can be valid, especially in respect of a common «carrier. In the court below the Claimant-accepted the burden of affirmatively proving seaworthiness, and we consider the case as if no attempt had been made to lessen or avoid the usual liability of a marine carrier in respect of that quality. Admitting then that the unexplained sinking of a vessel in her berth raises a presumption of unseaworthiness (The K. B. Guinan, 176 Fed. 301, 99 C. C. A. 639, and cases cited), and that unseaworthiness would impose liability, we are of opinion-that it was clearly shown that the No. 3 was entirely seaworthy when she started on the voyage in question.
As for the exception against collision, the libelant can ask no more generous construction than was accorded in the court below, viz. that it was worthless, if loss was caused or brought about by shipowners^' negligence. Carver (6th Ed.) § 93. The question debated in both courts is whether the sinking was in fact due to collision, and whether there ever was any collision. , '
We have noted that there is no direct evidence of collision, and the one man who constituted No. 3’s crew went to bed and slept through the night, while his boat lay between Haverstraw and No. 11. He was awakened by a clock falling from a shelf and on his head, and such-fall was occasioned by the heavy list of his vessel. Subsequent investigation showed a V-shaped hole in sound timbers forming a well-caulked side, and the No. 11 also (a boat proved sound the day before) showed broken timbers and had the appearance of having been squeezed. The hole in No. 3 was just at the load water line, so that the inflow of water might and probably would have been slight at first, growing-rapidly as the boat sank lower.
In our opinion, the evidence, though circumstantial, is credible and’ persuasive that the injuries to both Nos. 11 and 3 were caused by extraneous pressure on No. 11, and such pressure could only have been inflicted by another vessel entering or leaving the slip during the-night.
We have merely outlined the evidence; it is satisfactorily discussed in detail in the opinion of L. Hand, D. J. Result is that we consider all causes other than collision excluded by the evidence, .and that the carrying vessel has borne the burden of proof defined in The Rosalia, (C. C. A.) 264 Fed. 285, 288.
Loss having resulted from a collision, injuring a seaworthy vessel, and without negligence on the carrier’s part, the matter falls within the exception, and the decree below is affirmed, with costs.