265 F. 465 | 3rd Cir. | 1920
The Schoonmaker-Connors Company, Incorporated, which for the purposes of this case, may be considered as the owner of the deck scow P. J. Kane No. 2, filed a libel against the
The preliminary negotiations were verbal, but were confirmed within two days thereafter by a letter written to the respondent by the libelant. Both boats were without any motive power of their own, and although the master, or, more properly speaking, the caretaker, who was bn board, was paid by the owner of the vessels, so far as appears, he had nothing to do with the real navigation or direction of the movements of boats or the manipulation of their cargoes. Nor ivas the libelant to have any part in loading or unloading them. The boats were to be .towed to and from Haverstraw by an independent towing company engaged by the libelant, as a matter of convenience, for the respondent. So far as appears in the evidence, from the time ■the boats left their moorings in New York, they were under the exclusive command and control of the respondent, in the sense that he alone had the power to direct their movements and use, although the actual navigation was, of course, attended to by those in charge of the tugs and in a certain and limited degree by the caretaker. Under these circumstances, we have no difficulty in reaching the conclusion that the learned judge of the court below was correct in holding that the scows were demised to the respondent, so that he became pro hac vice the owner thereof. In re Johnson Lighterage Co. No. 24 (D. C. N. J.) 240 Fed. 435, 438, affirmed 248 Fed. 74, 160 C. C. A. 214 (C. C. A. 3d Cir.); The Daniel Burns (D. C. S. D. N. Y.) 52 Fed. 159; Monk v. Cornell Steamboat Co., 198 Fed. 472, 117 C. C. A. 232 (C. C. A. 2d Cir.); Hastorf v. Long, 239 Fed. 852, 152 C. C. A. 638 (C. C. A. 2d Cir.); White v. Upper Hudson Stone Co., 248 Fed. 893, 160 C. C. A. 651 (C. C. A. 2d Cir.).
The only evidence .from which negligence in loading could be predicated is that given by the captain of the scow, who had never seen a deck scow loaded with clay, to the effect that, in his judgment, it was not properly loaded. While admitting that he thought the proper way to load it was to deposit the clay in the center of the scow — along a line drawn from the bow to the stern midway between the sides — so that it would run over to either side, as was done in this case, he seems to advance two variant criticisms of the precise manner in which this scow was loaded: (1) That the clay was piled too high in the center, which caused it to take a sudden slide to one side; and (2) that more wa.s placed on one side than on the other, which caused the boat to list in that direction. It is quite difficult to ascertain from his testimony exactly wherein he thought that the fault in loading, if any, lay. If it was in the first respect mentioned by him, we are confronted by the fact that it was admittedly proper to first deposit the clay in the center, so as to permit it to slide to the sides; that the scow was not then loaded to over three-fourths of its guaranteed capacity, although the clay was then almost, if not entirely, up to the rail on both sides, and that there is no evidence as to how it could have been further properly loaded, except by placing the clay where it was placed. If it had been placed on either side after the clay had been piled too high, as the witness says, in the center, it would have caused the scow to list, and, doubtless, brought about just such an accident as eventually happened. If the fault was in the second of the above respects then his testimony as to too much being placed on one side is nullified by his other- testimony that it was piled too high in the center, as it is also contradicted by the testimony of the captain of the dredge, who testified that he placed all of the clay in the center, and permitted it to slide to the sides and level itself, a peak thus being formed in the center. Moreover, the list was complete and damage done within-two to five minutes after'the vessel began to list.
Much stress has been laid bv counsel for the libelant on the following excerpt from the testimony of the captain of the barge: “O. And you knew she would take a slide, of course? A. Sure, I knew she would take a slide.” But this extract must be read in connection with his other testimony. He was testifying as to what would happen when the clay was deposited in the center of the scow.
Upon the whole, therefore, we. think that the only legitimaté con
We think that the fair inference from the evidence is that both parties contracted without having in mind the exact character of clay which the scows were to carry. Hence, as it was demonstrated that the injury to the vessel was not due to any fault of the respondent, or those for whose acts he is responsible, and as he was not under an absolute obligation to return it in as good condition as when received, reasonable wear and tear excepted, but was required to exercise only ordinary care in his use of it, he is not liable for the damage which it received.
The decree of the court below will therefore be reversed, with costs.