In pursuance of an order from the libel-ant, the respondent the Chesapeake Lighterage and Towing Company, hereinafter called the Chesapeake, sent its scow 424 for а lot of kainit, belonging to the libelant, and then on the recently arrived steamship Victorious. The Atlantic Transport Company was doing the ship’s stevedoring, and it loaded the scow with 285 tons of libеlant’s merchandise. Witnesses differ as to the exact way in which the loading was done, but there is nothing to show or to suggest that any lack of care and skill on the stevedore’s part contributеd to the subsequent disaster. The libel against the Atlantic Transport Company is therefore dismissed.
The scow was put alongside the ship on the 19th of August, 1920, and by the afternoon of the next day her loading was complete. Thereupon she was moved across the slip and placed against a pier in such position that there was room to have put a scow between hеr and the water end of the pier, while there was considerable distance between her and the shore line. Between 8 and 9 in the evening her master left her and went home for the night. He says that, just before his departure, he went over her and found her dry and in good condition in other respects. A tug of the Chesapeake claims to have passed the mouth of the slip shоrtly before 11:50, and she then appeared to be upon an even keel, so far as could be determined, without a closer inspection. Less than three hours later, and in the neighbоrhood of 2:3Q a. m., the same tug found her floating bottom up, with a considerable portion of her hull above the water. Her cargo was a total loss. According to the story of the tug’s mastеr, some railroad workmen on one of the piers hounding the slip told him that the scow had turned over a few minutes before.
The Chesapeake offers testimony that the scow was seaworthy, and there Is, nothing to the contrary, except that on a quiet summer’s night, in a sheltered slip, she turned turtle. It produces witnesses who made a survey of her after she had been righted and gottеn, upon a marine railway. They testify that they found injuries to one of her corners extending well below the water line, and which they do not think could have resulted from her upsetting, but which could havе been caused by some heavy moving object striking her, and in their judgment were.
Affirmative testimony there ends. If the account of the tug’s master be accepted as to what was told him, it is probаble that there were eyewitnesses to her capsizing. None of them have been produced. Not a single person of the several who were on the pier that night has been put upon the stand. The Chesapeake’s defense rests upon what it claims the survey reveals, and yet it never gave the libelant
One who, like the Chesapeake, has charge of another’s gear, does not insure its safety; but it is bound to do all that it reasonably can to throw light on the reasоn why it is not able to return that which was committed to its keeping. In other words, in the language of the authorities, it is bound to explain why it does not give back that which it had received, nor is it going too far to insist that it shall have made a real attempt to find out what had happened when it, rather than its bailor, was in a position to do so. It is true that, after all the discoverable facts are in evidence, the burden rests upon the bailor to show by a fair preponderance of the evidence that the loss was the result of a lack of due care upon the part of the bailee.
The Chesapeake says that the instant case is on all fours with that of The Jay St. Terminal No. 3,
Upon the facts of the case, I must reject the collision theory. If the scow did not sink in consequence of being struck by some other boat after her master left her, she must have turned over because of some defect in her; that is to say, in consеquence of her unseaworthi
On the other hand, the Chesapeake insists that it was under no obligаtion .to keep any one upon the scow, and that the custom of the port did not require it when loading or unloading was not going on, and when the scow was safely tied to a wharf. Two of the cases upon which it relies, The Banner (D. C.)
There is much to be said for and аgainst either the rule prevailing in the Birst circuit or that which is followed in the Second. The question involved is more one of business policy than of law. In the Birst circuit, those chiefly concernеd seem to be of opinion that some one should always be on board these barges, and the barge owners pay at least lip service to the locally accepted judgment by making rules forbidding the leaving of the barges, although one of them at least habitually winked at their violation. In New York it seems to be thought that such requirement would in the long run cost more than it would bе worth. There was not much testimony in this case as to what was the Baltimore practice, but there was no contradiction of what there was, and it was to the effect that scows when lоaded were habitually left unattended. Upon this state of the record I am not prepared to hold that the mere fact that the Chesapeake allowed its scow-men to gо home at night was negligence.
There is nothing in the evidence to show that the Chesapeake had any reason to suspect the barge was unseaworthy, and while it cannot escáрe liability for the consequences of the unseawoythiness in fact, there is no reason why it may not limit its liability to the value of the scow and her pending freight; it being the rule in this district at least, that the owner may, under proper circumstances, limit its liability for the consequences of the breach of an implied, although not of an express, warranty of seaworthiness.
A decree in accordance with these views may be presented for signature.-