DISTRICT COURT, E.D. NEW YORK
January 2, 1936
THE NORTHERN NO. 29; FLAT-TOP FUEL CO., Inc.,
The opinion of the court was delivered by: INCH
INCH, District Judge.
Libelant owned a cargo of coal, consisting of approximately 2,000 tons, which was being transported by the barge Northern No. 29 when the said barge, owned by the respondent, Martin, sank at sea off the Jersey coast. Both the barge and the coal were a total loss.
The libel contains two causes of action, both in personam. One is based on a contract based on failure to perform an alleged contract for carriage of the coal by respondent from Norfolk to Connecticut in consideration of agreed freight. The other cause of action is apparently in tort whereby the loss of the barge is claimed to be due to the negligence of the respondent in that the barge was unseaworthy and her equipment defective.
It is necessary to briefly set forth the undisputed facts surrounding the use of this boat and her unfortunate and uncompleted voyage.
The barge Northern No. 29 was about sixteen years old. She belonged to the respondent. She had originally belonged to the Northern Barge Corporation of which L. B. Tucker was president and was a witness at the trial. This corporation owned and operated her from the time she was built until November, 1932. She was then sold to respondent. In June, 1933, she was chartered by respondent to the Marine Fuel Corporation, and it subchartered the barge to libelant for the freighting of 35,000 gross tons of coal by sea during the period from June 5, 1933, to April 1, 1934.
Pursuant to this subcharter with the Marine Fuel Corporation, the barge had already made several voyages, loaded with coal, from Virginia to Connecticut and elsewhere. Freight for these prior shipments had been paid by libelant to the Marine Fuel Corporation at 70 cents per ton. The Marine Corporation in due course had paid respondent 67 1/2 cents per ton pursuant to its contract.
The contract between libelant and the Marine Company contained a provision that the owner should be exonerated from loss or damage to cargo occasioned by defects, etc., provided all reasonable means had been taken by the owner to make the barge seaworthy. The original charter also contained such clause. The barge was a private carrier, and so provisions of the Harter Act, 46 U.S.C.A. §§ 190-195, are not applicable. The G. R. Crowe (C.C.A.) 294 F. 506.
Respondent was not a party to the contract between libelant and the Marine Company. The Banes (C.C.A.) 221 F. 416; Dampskibs Aktieselskabet Thor v. Tropical Fruit Co. (C.C.A.) 281 F. 740. Phosphate Mining Co. v. Unione, etc. (C.C.A.) 3 F.2d 239; Murphy v. Paine (D.C.) 15 F.2d 570. The suit is in personam.
When the coal was loaded upon the barge at the beginning of the voyage, a bill of lading prepared by libelant was signed by a representative of respondent. This made no reference to the contract between libelant and the Marine Company. It was properly admitted in evidence as part of the proof by libelant as to the circumstances surrounding the shipment, but, as libelant was the shipper as well as a charterer, this bill of lading unnegotiated was merely a receipt. The Fri (C.C.A.) 154 F. 333; The G. R. Crowe (C.C.A.) 294 F. 506; The William I. McIlroy (D.C.) 37 F.2d 909, affirmed Burns Bros. v. The William I. McIlroy (C.C.A.) 45 F.2d 1023.
There can be no recovery here on contract under such circumstances.
However, the respondent owed a duty to have the barge a seaworthy one when she broke ground, and there was a presumption of a breach of this duty by respondent as shown by the facts surrounding the sinking of this barge and the failure to deliver the coal. The William I. McIlroy, supra. These facts are as follows: She was loaded on or about December 5 with less than a capacity load of coal. Nevertheless she soon leaked to some extent, and, when she started on her voyage December 7, in tow with several other barges, on her way to Connecticut, she had only reached a point off the Jersey shore when it was found by her captain that she was leaking so badly as to require her being cut out from the tow and brought into quieter waters, where she soon sank and was a complete loss.
The respondent does not plead peril of the sea, but insists that the barge was seaworthy when she started, as shown by a certificate issued by the hull inspector on December 4, and by the testimony of the president of her former owner, and from the various times she had been in dry dock for repairs, coupled with the testimony of her master. That the sea encountered shortly before her unfortunate ending was quite rough and a wind was blowing.
Nevertheless, what this barge did speaks louder than this testimony on the question of her seaworthiness. There was nothing unusual about the sea which an ordinarily staunch and seaworthy barge would not be expected to meet. Apparently the other barges met such conditions. Her master showed the necessity for frequent pumping, and the inspector did not examine her when she was loaded with coal but was empty.
In my opinion, the warranty of seaworthiness which rested on the respondent has been sufficiently shown by libelant to have been broken.
In other words, this barge was unseaworthy when she broke ground, as there is no sufficient proof that any other cause for her sinking arose between that time and her sinking.
Under such circumstances libelant is entitled to recover from respondent. Work v. Leathers, 97 U.S. 379, 24 L. Ed. 1012; The Turret Crown (C.C.A.) 297 F. 766; Benner Line v. Pendleton (C.C.A.) 217 F. 497, affirmed 246 U.S. 353, 38 S. Ct. 330, 62 L. Ed. 770. This is so whether the carrier is a common or a private carrier, The Framlington Court (C.C.A.) 69 F.2d 300, the Caledonia, 157 U.S. 124, 15 S. Ct. 537, 39 L. Ed. 644, in the absence of an express contract between the parties.
Respondent further claims that, in case libelant succeeds, it is entitled to limit liability which in this case relates to the total loss of the barge.
But, as I find the barge was unseaworthy when she broke ground, respondent is not entitled to such limitation. Cullen Fuel Co. v. Hedger, 290 U.S. 82, 54 S. Ct. 10, 78 L. Ed. 189, affirming The Cullen No. 32 (C.C.A.) 62 F.2d 68.
Decree for libelant.
If this opinion is not considered a sufficient compliance with the rule 46 1/2 of the Rules in Admiralty (28 U.S.C.A. following section 723), findings of fact and conclusions of law in accordance herewith may be submitted.
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