281 F. 315 | 3rd Cir. | 1922
This appeal is from a decree in admiralty finding a charterer at fault in overloading a chartered barge and holding the charterer liable in damages for her sinking. 272 Fed. 495.
The Dredging Company, engaged in dredging in the Delaware River with the dredge “National,” had chartered the barge “Emma” from the libelant. When loading sand upon the barge, she sank. Each craft was in charge of her own master. The court found that the barge master had protested against further loading and that the dredge master ignoring his protest had continued loading, and that, in consequence,
Coming to the testimony, the only undisputed fact in the case is that the barge sank. By whose fault she sank, whether that of the dredge master or the barge master, depends upon a finding as to why she sank, and this in turn upon another finding as to when she sanie. Out of the confusion of testimony we find this to be the true story:
The barge was being loaded with sand delivered in a continuous stream from a stationary chute on the dredge. In distributing her load, the barge, by means of a steam winch on the dredge, was moved aft in order to be loaded forward and was moved forward in order to be loaded aft. She had been loaded very heavily in the stern, or, as •the barge master himself said, she was already “overloaded” in the stem. Frank, the chute tender of the dredge, ordered the barge aft to load her at the bow, when Sam, the master of the dredge, directed him to put more sand on the stern. The barge master said to Sam: “I think we have got enough on her.” Nevertheless, the crew of the dredge pulled the barge forward, the barge master helping with the lines, and loaded more sand on the stern. They then stopped loading the stem and, with the sand running aboard all the while, pulled the barge aft and began loading amidship when she lurched and sank. We are aware that this finding of time and place of sinking is against testimony that the barge sank when being loaded at the stern. There is, however, little dispute that the time at which she sank was about one-half hour after the quoted conversation between the barge master and dredge master, and that throughout this period the barge master allowed sand to run aboard without protest.
We direct that the decree below be modified to conform with this opinion.
33 Sup. Ct. 113, 219, 57 L. Ed. 380, 381.