Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The Astoria Light, Heat & Power Company made a contract with Moran Towing & Transportation Company, Inc., under which the Moran Company agreed to deliver a dump scow at the Luyster Creek Dock of the Astoria Company to be loaded with approximately eight hundred cubic yards of spent oxide and to tow the scow out to sea where the oxide was to be dumped. The Moran Company did deliver a scow at the dock for this purpose, but it was rejected by Astoria. Thereupon Moran chartered from the libelant, P. Sanford Ross, Inc., its scow S-40 and delivered that scow to the dock in seaworthy condition, where it was accepted and loaded with more than 800 yards of oxide, but not with more than the capacity of the scow. Loading was begun November 17, 1927, and completed November 19th. While at the dock, the scow took the ground at low water. A little before 4 o'clock in the afternoon of November 19th, the Moran Company's tug Eugenia N. Moran arrived at the dock to tow the scow according to the contract. It went aground, but floated in about an hour on the rising tide. During this time the scow was also aground with a slight list offshore. It had fourteen-foot sides and about three feet of freeboard when afloat and loaded as it was. When both tug and scow were afloat, the tug made fast and towed the scow to the O'Brien stake boat, where another scow was picked up and the two taken in tow, tandem, on a hawser of from 75 to 80 fathoms. The bargee examined the scow before it left the dock and made no complaint about its leaking. About 2:00 o'clock the following morning the tug and tow arrived at the Eatons Neck dumping ground and signaled to the S-40 to dump. When it saw that the scow was not dumping, the tug rounded to and went alongside to find the bargee asleep and the scow with a bad and increasing list to starboard. Although all the pawls were knocked out, it would not dump. The scow was then towed to Hempstead Harbor and grounded on the flats. After unsuccessful attempts to pump her out, a third party was engaged to raise her, and she was delivered to the libelant, her owner. When suit for damage to the scow was brought against the Moran Company, the Astoria Company was impleaded and held liable for providing a foul berth.
The evidence concerning the berth disclosed that it had a mud bottom with some cinders intermixed that made it medium firm. There were no rocks or other obstructions. As the S-40 lay at the dock, the bottom from her port stern corner rose gradually at mean low water from 6.1 to 9.6 about 60 feet from the bow and then fell gradually to 7.7. A few feet offshore it rose gradually from 9.0 at the stern to 10.3 about 60 feet from the bow and fell gradually to 9.5.It was 9.8 at about the center of the scow at the stern, rose gradually to 10.6 about 50 feet from the bow and fell gradually to 8.8. At the offshore stern corner it was 13.6, fell gradually to 9.9 about amidships and to 8.8 at the bow starboard corner. The scow was 140 feet long and 40 feet wide.It is true as the above discloses that the bottom was somewhat uneven, but it was free of rocks, and, though there were cinders in the mud to make it medium firm, whatever that may mean, there was no evidence to show twisting that would necessarily open her seams or to show that the seams were in fact opened. The slope of the bottom caused the slight list offshore when aground. The tug took her and towed her about ten hours before trouble was discovered. She had been at the dock three days and two nights, during nearly all of which she was at least partially loaded without taking enough water to be noticed by any one before the tug took her in tow. From the fact that she was in damaged condition ten hours later, it is necessary, in order to hold the Astoria Company, to infer that she must have been damaged when she left the dock, because the evidence of the tug was to the effect that nothing was known to have damaged the scow while being towed, and upon that inference to base the conclusion that the Astoria Company was negligent in furnishing a berth it should have known would cause the damage which has not even yet been shown to have actually occurred there. It is elementary that, unless it could be proved that the Astoria Company was negligent, and that its negligence caused the damage, it was not legally to be held liable. Shamrock Towing Co. v. City of New York (C.C.A.) 32 F.2d 684. We think such a method of reasoning to a finding of actionable negligence too far removed from a solid foundation of proved fact to be reliable.
The liability of the Moran Company, however, does not depend upon proof of its negligence. It chartered the scow, received it in good condition, and it failed to redeliver in like condition. It has admitted in answer to an interrogatory that the scow was "in apparent good order and condition at the time she was taken in tow by the tug" at the Astoria Company's dock, and under the charter, which was oral and confirmed by letter, it was "understood you will be responsible for the scow and return in same condition as when taken." The "you" in the above quotation refers to the Moran Company. It is guilty of a breach of its contract, and its liability is clear. Schoonmaker Conners Co., Inc., v. Lambert Transportation Co. et al. (C.C.A.) 268 F. 102, 104.
Decree modified to hold the Moran Towing & Transportation Company, Inc., solely liable.