| S.D.N.Y. | Jun 18, 1901
(after stating the facts as above). Upon careful consideration of the evidence and circumstances, I am satisfied that the lighter capsized in consequence of improper loading, that is, from putting the entire cargo of over 200 tons upon deck, with none in the hold, so that the lighter had not ordinary or reasonable steadiness. Only about 10 tons in all had been removed when the lighter capsized. It was unloaded over the port side. A short time before, a list to starboard was observed, and as it increased the stevedore’s .men set to work rolling the bags of rice from the starboard side to the port side, but before a sufficient change could be made the lighter capsized.
The loading of the lighter was under the immediate supervision of the lighterman Harrigden, who was in the employ of the Commercial Lighterage Company, the owner of the scow and was paid by that company; and the letting of the scow to the Export Lighterage Company included the services of Harrigden, who was in charge of it. On arrival of the scow he was directed by-Mr. Bird, who was the general agent and manager of James E. Ward & Co., and was also the president of the Export Lighterage Company to proceed to pier 50 North river, where the Teutonic discharged, and take the rice and bring it (about two miles) to the New York & Cuba Mail Steamship Company’s pier near the foot of Wall street. Under this order the lighterman proceeded to the Teutonic’s pier, engaging stevedores, who were paid by the lighterage company, and superintended and directed .the loading of the rice, upon the lighter in the
It is suggested that as the lighter leaked somewhat, so as to require some pumping every few hours, the leak might have increased from some pounding or accident in changes of position during the several days that the lighter was waiting in the slip, so that when the list to starboard began it was rapidly increased by the flow of water to the starboard side. The evidence shows, however, that the lighter was pumped out until the pump sucked at 4 a. m., less than three hours before the accident. The suggestion of further injury to the boat and consequent heavier leaks have no foundation in the evidence; and as a bare possibility, it cannot be regarded, considering that a sufficient cause of the accident appears in evidence, namely, in the loading of the lighter to her full capacity, or as would appear from the evidence of Mr. Briggs, a former owner, somewhat above her proper capacity, and placing the entire load on deck without anything below to steady her-. The lighter, moreover, was eompletely housed over, excepting a few feet at the stern and the bow. All the rice was inside the house, which was filled nearly to the top, so that when the lighter commenced to list to starboard, the side of the house prevented any of the bags from rolling off, which but for the house might have relieved the lighter and have prevented capsizing.
Some claim is made that the stevedores of the steamship were to blame for not unloading the rice more carefully so as to preserve the lighter’s equilibrium. The lighterman told the stevedores that the lighter was tender, and asked that the unloading be in the inverse order of the loading, beginning forward. It not being convenient for the Avala to begin discharging through the forward gate or doorway of the house on the lighter, the discharge was commenced from the aft gateway, and in this Mr. Harrigden, whose business it was to keep tally of the bags as they were delivered on board of the steamer, seems to have concurred. In other respects the stevedores testified that they did unload in the manner requested by Mr. Harrigden and in a manner different from usual; and without going into further details, I find that there was no such substantial disregard of Harrigden’s request, or of any notice given by him to the stevedores as to charge them with blame or negligence.
From the above finding as to the cause of the loss, the liability of all the defendants follows as a legal consequence; that of the defendant Booth, as the sole representative of James E. Ward & Co., upon his contract to transship the goods and his failure to do so; that of the Export Eighterage Company, which having as carrier undertaken to lighter the goods and make proper delivery to the Avala was bound as carrier (Carv. Car. by Sea, §§ 5, 462) to do so, and was answerable to the owner for any negligence causing damage; and that of the Commercial Lighterage Company for the negligence of Harrigden, its employé, in the management of the
. The liability of the Export Lighterage Company, as charterer of the lighter, does not seem to be within the provision of section 4286; inasmuch as the charterer did not in this case “man, victual and navigate the lighter at its own expense,” and the defendant Booth is clearly not within this provision. If it be unequal, and in that sense inequitable, that the owner of the vessel should be relieved by the statute from a large part of the damage resulting from the negligence of its own employé, while the charterer who suffers from the same negligence, is not relieved, it can only be said that this relief is a statutory and arbitrary one, and can extend no further than the statute prescribes, and that the charterer in this case is not within it; while it would be equally inequitable, as between the • charterer and the defendant Booth, that the charterer should be relieved to the prejudice of Booth, who is in no personal fault and is clearly entitled to indemnity from the charterer who undertook to do the lighterage and transshipment.
It is contended in behalf of the defendant Booth that he is entitled to the benefit of various stipulations in the Ward Line’s bill of lading, which would have been issued had the rice been shipped upon the Avala in pursuance of the agreement in the original bill of lading, whereby it was provided that the goods were to be transshipped by James E. Ward & Co. and forwarded by them from New York “by one of the steamers of James E. Ward & Co. at shipowner’s expense, conveying the goods on terms, tenor and conditions of bill of lading of the aforesaid company at risk of shippers and consignees, and deliver the same at the port of Havana.” Although James É. Ward & Company had no steamers, it may be conceded that the carriage of the goods from New York to Havana would be subject to the usual terms of.the bill of lading in use by the Ward Line; but no such bill of lading could come into operation until the rice was either put on board the Ward Line steamer, or else properly delivered into the possession and control of the steamship company for that purpose. Neither was done. At the time when the lighter capsized no such transshipment or delivery of this rice had been made. It was still in the possession of Booth or of the Export Lighterage Company as lighterman. The stevedores of the steamship company were engaged in transshipping the rice from alongside. But in consequence of .the improper loading of the lighter, there was no proper delivery, and thé stevedores were not able to secure the goods or to take possession or control of them
Decree for libelant against the defendants with costs, except as against the Merritt & Chapman Derrick & Wrecking Company, as to which this libel is dismissed with $20 costs.