The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a suit by the libellants to recover from the respondent for the damages sustained by a cargo of small arms ammunition while laden on board covered barge New Haven No. 122, when it became submerged, while tied between two barges on the south side of Pier 36, North River. Libellants, as carrier, have paid the shipper, Winchester Repeating Arms Company, for the damage to the cargo, and seek reimbursement of the amount paid, claiming that at the time of the damage, the cargo of small arms ammunition had been delivered by libellants to respondent for on-carriage as a connecting common carrier. Libellants contend in addition, and in the alternative, that respondent was bailee of the cargo on board lighter New Haven No. 122, and negligently and carelessly permitted the cargo to become damaged while in its possession.
On October 31st, 1938, at New Haven, Connecticut, Winchester Repeating Arms Company delivered to the libellants, in good order and condition, 575 cases of small arms ammunition, consigned to M.N. McLaren Company, Tampa, Florida, to be carried by the libellants to New York City, and by the respondent from New York City to destination on board steamship sailing from respondent's piers in this port, on or about November 3rd, 1938. A through bill of lading was issued by libellants.
The said ammunition was carried by the libellants in good order and condition, and safely to New York City; and, on or about November 1st, 1938, this ammunition, together with a car of ammunition belonging to the Remington Arms Corp., was placed on board the covered barge New Haven No. 122, which was owned by libellants.
On November 2nd, 1938, the lighter New Haven No. 122, with the two carloads of small ammunition on board, the car of Remington Arms Corp. ammunition, being loaded on deck in the house forward of amidships, and the car of Winchester Repeating Arms Company being loaded on deck in the house aft of amidships, was brought to the north side of Pier 34 by the tug Transfer No. 19, and made fast at approximately 11:30 A.M., about two-thirds of the way out from the bulkhead.
Upon arrival, Charles S. Birs, the Captain of the New Haven No. 122, delivered to respondent's receiving clerk, on Pier 34, transfer papers covering the car of Remington Arms Corp. ammunition. He also handed to respondent's receiving clerk on Pier 36, three copies of certain transfer papers covering the car of the said Winchester Repeating Arms Company small ammunition, consigned to Tampa, Florida, and subsequently damaged.
During the afternoon of November 2nd, 1938, the carload of Remington Arms Corp. ammunition was unloaded by respondent's stevedores, the unloading being completed about 5:50 P.M., and the Captain of the No. 122, having been told by respondent's pier superintendent that he was not going to take the remaining cargo off that night, left for home between 5:50 and 6 o'clock P.M.
At about 6 o'clock P.M. the respondent's tug President shifted No. 122 and Erie barge No. 333 (which had been made fast outside the No. 122 about 3 P.M. on November 2nd, 1938), across the slip from the north side of Pier 34 to the south side of Pier 36, making them fast outside of barge Belton, the No. 122 being the center barge of the three after the manoeuvre.
The employees of the respondent working on Pier 36 left for the day around 6 o'clock P.M.
During the night of November 2nd, or the morning of November 3rd (the time never having been determined), the lighter New Haven No. 122 commenced to take in water, which was first discovered around 2:35 A.M., November 3rd, by Captain Pascale of the Erie tug Chicago, when she came into the slip to remove Erie barge No. 333 tied up outside the No. 122. The deckhand of the Chicago advised the pier watchman of the barge's condition, and the watchman advised Dunne, the roundsman, who immediately telephoned the New Haven Lighterage Department advising them that the barge was sinking.
On the morning of November 3rd, at about 7 o'clock A.M., Captain Birs of the New Haven No. 122 returned to Pier 36, and found his barge in a sinking condition. He telephoned the New Haven Railroad to advise them of this fact, and they told him they knew all about it. During the course of the morning various unsuccessful steps were taken, by libellants, preparatory to removing the cargo from the No. 122. At the request of Captain Birs slings were furnished by respondent to be strung under the No. 122 as it lay between the No. 333 and the Belton. Stevedores, and the Marine Superintendent of the New Haven Railroad, came to Pier 36 to undertake the removal of the cargo, and respondent chartered its lighter Belton to the libellants, so that the cargo on the No. 122 might be unloaded onto it.
The Merrit Chapman's derrick, Century, arrived at 3:15 o'clock P.M., put a sling under the No. 122, raised her and pumped her out, at which time a piece of wood was discovered to have pierced the No. 122 between the second and third planks above the bilge log, port side forward. The hole was patched, and the barge towed to dry-dock where a survey was held on November 4th, 1938. A survey had also been held on November 3rd, 1938, at Pier 36, while the No. 122 was submerged. The respondent was not given notice of either survey, and did not attend thereon.
A Uniform Straight Bill of Lading on the Winchester Repeating Arms Company form covering the damaged shipment was issued by libellants at New Haven.
As a result of the sinking and submerging of the barge No. 122 the Winchester Repeating Arms Company shipment was damaged, and a claim for damage was filed with the libellants, the initial carriers, under the through bill of lading, in the amount of $6,606.21 by the then owner, the shipper Winchester Repeating Arms Company. The libellants, the initial carriers, paid ...