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July 9, 1936


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

The barge William B. Diggs owned by the respondent sank and was lost off the New Jersey coast on September 3, 1934, having taken a cargo of 1510 tons, 1800 lbs. of pig iron on August 23, 1934, from the libelant at Albany, N.Y. for delivery at Roebling, N.J.

In this cause recovery is sought by the libelant as assignee of the consignee for the loss of the cargo, namely, $38,757.00.

 The questions raised by the pleadings are:

 1. Whether the barge was seaworthy and yielded only to the perils of heavy cross seas which caused her to leak and founder.

 2. Whether the respondent is entitled to the protection of the Harter Act (46 U.S.C.A. § 190 et seq.).

 3. Whether the respondent was an insurer.

 4. Whether the libelant has been reimbursed by insurance for the loss, which insurance was paid for by respondent and the benefit of which extends to the respondent, whereby the underwriters "on whose behalf this action is being maintained are barred from maintaining this suit against respondent" (Answer, art. twenty-second).

 As to the latter, there is before the court a document reciting a loan without interest by The Universal Insurance Company to the libelant dated March 15, 1935, of $34,000.00 repayable only out of any recovery by the libelant in connection with the said pig iron shipped as stated. Assignment of the cause of action and control of litigation, etc., to the insurance company are set forth.

 As to the question of seaworthiness, it should be said that the barge was owned by the respondent, and chartered from it by libelant; there are no unusual clauses in the charter party; there is of course a clause requiring the owner to exercise due diligence to make the barge tight, staunch, strong and seaworthy, and relieving it of liability for any loss or damage to cargo occasioned by any defects whatsoever in hull, machinery or equipment, whether existing before the commencement of or arising or developing during the voyage provided all reasonable means have been taken to make the barge seaworthy.

 In these circumstances the respondent was a private carrier, a bailee, and is to be held answerable for negligence. The Joseph J. Hock (C.C.A.) 70 F.2d 259, at page 260.

 This voyage started in Albany, where the cargo was taken. Before that was done, repairs were made to the boiler that furnished steam for the pumps, the whistle, and the winch; namely, two "spots were welded around the mud ring or what is known as the leg of the boiler." That was on August 19, 1934. The boiler was then tested and one or two more leaks developed, and were repaired the next day. The boiler was again tested, and was found to be in good repair.

 The barge was towed down the Hudson to the anchorage grounds on Red Hook flats, and lay there for seven or eight days, until departure was had on September 2d at about 1:00 p.m.

 During that interval 12 to 14 inches of water or so were made each day, and the pumps cleared this without difficulty. The weather was fair during that entire time, so that an intake of 8 to 10 inches daily may be regarded as normal on this barge, since the pumps began sucking at 4 inches. There is uncontradicted testimony that this is a custoinary leakage of such barges.

 The tanks supplying fresh water to the boiler, and for the use of those on board, were filled at Albany. So much as had been consumed of the contents by September 1st was replaced by the tug Baldrock on that day. It does not appear how much water was so required but the testimony is that the tanks carried an adequate supply for fourteen days when the barge was operating.

 The Diggs was a wooden barge, built in 1918, 203 feet long, and 36 feet in beam, having 14-foot sides. Her carrying capacity was around 1800 tons and her prior service had been constant, as will be seen. When loaded on this voyage she had a freeboard fore and aft of from 6 to 7 feet and 3 1/2 to 4 feet amidships. Her cargoes and voyages during the year preceding her foundering included:

 August, 1933 -- 1500 tons of pig iron, Albany to Roebling, N.J. (Del.River)

 February, 1934 -- 1575.71 tons of coal, Newport News to Boston

 March, 1934 -- 1020.876 tons scrapiron, Boston to Sparrows Point

 April, 1934 -- 1103.5 tons steel rails, Sparrows Pt., Md., to Portsmouth, Va.

 May, 1934 -- 12730 railroad ties, Fredricksburg to Weehawken

 June, 1934 -- 1197 gr. tons steel skelp, Sparrows ...

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