The opinion of the court was delivered by: BYERS
The libelant sues to recover for damages sustained by its cargo of wheat while laden on the barge or harbor box Frank A. Smith. The loading was done at the grain elevator of the New York Barge Canal terminal at Columbia Street, in this district, on October 14, 1931.
The cargo, consisting of 33,500 bushels, remained on the barge until November 24, 1931, a period of 41 days, and at discharge some 2,900 bushels were found to be wet, and 500 additional bushels had become heated by contact therewith.
The damaged portion of the cargo was on the port side amidships.
When the cargo had been discharged, the barge was taken to a repair yard, and inspection disclosed that a piece of hard pine driftwood, 2 to 3 inches wide, had become wedged in the seam of the seventh plank on the port side, about amidships on the outside of the hull, sufficiently (i.e., 2 or 3 inches) to open the seam and admit the water that did the damage.
This opening was about 6 feet above the light water line, and about 4 feet below the loaded water line, and therefore probably was not made when the vessel was completely laden, on the assumption that the driftwood was afloat when it became imbedded.
The barge was shifted from her position at the elevator, to another place in the slip, and there remained until discharged. In other words, the vessel was used as a floating werehouse, and was subject to such handling as the libelant might direct. If delivery of the grain so required, the barge would have been towed to the place thereof, and this would have been at the cost of the libelant.
It is idle to speculate upon the exact happening that caused the seam to open, for there is no evidence on the subject. If the barge did not roll at all during the period of lying in the slip, as an incident of which the driftwood was driven into her hull by another vessel in close contact, then the damage must have been done while the loading was going forward.
In any event, the barge was seaworthy when she was delivered at the elevator. The evidence is clear and undisputed, on this point.
The libelant urges that the contract between the parties was that of private carriage, and that the claimant owner, or his agent Ryan, the respondent, failed to meet the requirements of that relation.
The hiring of course was oral, and in accord with long standing custom between the Norris company and Ryan, who is engaged in harbor lighterage and transportation. He was asked by telephone for a light barge, and procured the Frank A. Smith from her owner Derby, and the agreed price as between Norris and Ryan was $12.00 per day, which Ryan remitted to Derby, less 5% retained as commission.
A bargee accompanied the vessel.
If towage was needed, Ryan provided his own tug, and charged separately for the service.
The decision as to this was of course with Norris, and that would amount to an exercise of dominion, i.e., an ...