242 F. 888 | 2d Cir. | 1917
Sulzberger & Sons Company, a corporation of the state of New York, exclusively engaged in the packing business, found itself in need of refrigerating space on a steamer to bring a large quantity of fresh beef from Buenos Aires to New York. To accomplish this it took a refrigerating steamer named the Suriname on time charter for a period of 60 days. As the company needed only the refrigerating space northbound, and had no cargo southbound and knew nothing about the shipping business, it arranged with Barber & Co. to get freight both ways for the open spaces and to. operate the steamer as if it were one of their own line. This Barber & Co. did, Sulzberger & Sons Company taking absolutely no part in the transaction.
Barber & Co. had a standing arrangement with the Hamburg-Amer-i'can Dine for berths for1 its steamers on the south side of that company’s pier at the foot of Thirty-Third street, Brooklyn. The charge was $75 a day while the vessel was at the pier, $60 a day from the time she left until the cargo was removed, and $25 for cleaning up the pier and removing the sweepings before discharge began.
There are four berths on the south side of the pier, numbered 1 to 4, beginning at the river end. Between March 24 and 27, 1915, the steamer George F. Warren, also operated by Barber & Co., discharged a quantity of aniline dye stuffs in kegs, much of which, in the form of a powder, got scattered over the pier, owing to the insufficiency of the kegs. The Suriname arrived April 1st at 6:30 p. m. and left April 5th at 8:45 a. m., occupying berth No. 3, just west of the berth at which the Warren had laid.
The .Hamburg-American Dine flushed the surface of the pier at these berths with hose and swept it with brooms before the Suriname began to discharge, which both the Hamburg-American Dine and Barber & Co. thought a sufficient washing down to clean the pier. The steamer laid bow in to the eastward, and three large consignments of green salted hides, which are more or less wet, were discharged from hold No. 2, beginning the night of April 2d, which was Good Friday, and ending at 7 a. m. Saturday, April 3d. The representatives of the Hamburg-American Dine were not at the pier on Friday,, and did not return until after the hides had been landed. They were laid in piles four feet high, flesh side down, on the asphalt surface of the pier, without any dunnage whatever. It was afterwards discovered that many of them were badly damaged by coming in contact with the dry aniline powder. The three shippers filed libels to recover for this damage, the respondents being Sulzberger & Sons Company, the Hamburg-American Dine, and Barber & Co.
The District Judge found that Sulzberger & Sons Company was a common carrier, and liable at least as warehousemen to the shippers for the damage in question; that the Hamburg-American Dine was liable as wharfinger for lack of ordinary care in not cleaning away all the aniline powder and that Barber & Co. were liable to Sulzberger & Company for lack of ordinary care in discharging the hides on the pier before all the aniline powder had been removed. He found that, although the Hamburg-American Dine and Barber & Co. believed that the pier was entirely clean, they ought by the exercise of due diligence
The libel should have been dismissed as to it, and, so modified, the decree is affirmed, with interest, and costs of this court to the Hamburg-American Line against Barber & Co., Inc., with costs to Sulzberger & Sons Company against Barber & Co., Inc., and to the Toxaway Tanning Company against Barber & Co., Inc., and Sulzberger & Sons Company, to be paid primarily by Barber & Co., Inc.