269 F. 586 | 4th Cir. | 1920
The dredge Sandwich owned by libelant, Roper Dumber Company, sank on November 2, 1917, while in the possession of respondent, Portsmouth Fisheries Company. The District Court entered a decree in favor of libelant for $6,000, the value of the vessel and interest from date of the loss. Two questions are involved: What was the undertaking of the respondent with respect to the boat? Was the loss due to the negligence of the respondent’s agents ?
In answer to a written application of respondent to hire the dredge,. libelant wrote that respondent would have to go to Bellhaven, where the boat was, and find out if it would suit; that, if it did suit respondent, the charges would be $25 a day; that respondent must insure for $6,-000 against both fire and marine risk; that the boat would have to be accepted and returned in first-class condition, wear and tear excepted. On October 24th respondent replied it had sent a man to look at the dredge, and, upon his report, thought it would do the work. As to insurance respondent wrote:
“We do not believe that we can get insurance on the boat, but, if we take it, we will assume the responsibility to the amount of $6,000. However, if you have any connection that will insure it, and you will place it, we will pay the premium. We presume you can get term insurance, and in our case 30 days will more than cover the time it will be in our possession.”
Libelant’s answer of October 29th states that it understands respondent to accept'all the conditions and—
*588 “if insurance of §6,000 cannot be obtained your proposition of assumption of liability of §6,000 will be substituted. Your representative to deliver your order and to sign receipt for boat being in satisfactory condition when taken.”
Respondent’s agent gave the following receipt:
“Received of the John L. Roper -Lumber Company the suction dredge Sandwich for account of the Portsmouth Fisheries Company on their contract with the Lumber Company. Said boat being accepted as being in a satisfactory condition to us.”
When Piner, respondent’s agent, received the dredge it was lying on a mud bank. He made an examination of so much of the boat as was visible, including the engine and pumps, but did not examine the portion of the hull that was under water. This could have been done by hauling the boat out on the ways. Fosken, master ot one of the towing tugs, warned Piner it was not safe to take her out without such examination. Piner himself testified that ordinary care required such an examination, but he did not make it because he was in a hurry. He also testified:
“You can take a leaky boat and put it on a mud bottom; it will tighten the seams, still will have no lasting power to it. It is liable to drop out any time, especially in moving the boat. Towing a boat would have a tendency to hold the seams together and hold what was in them together. After the towing stopped and the boat was anchored, it would have a tendency to open the wood.”
Piner and his crew left Bellhaven with the dredge in tow at ■ 12 o’clock m. They proceeded about 25 miles down the river and anchored at Judith’s Point for the night. The stop was made because it was regarded unsafe to cross Pamlico sound at night. The dredge was examined about 7 o’clock in the evening and no evidence of a leak was discovered. No one was left on the dredge and no watch was kept. During the night the dredge sank. The pumps were in order and there is no dispute that the loss could have been prevented by their use. The deck of the vessel was in a few inches of the water line, and the wind may have driven the waves in. . On the other hand, the evidence clearly shows that leaks were to be expected. The peril of the vessel from wind and leaks was obvious.
Affirmed.