The opinion of the court was delivered by: BYERS
The libellant's scow Seaboard #9 was in good condition on November 22, 1946, when she passed under the usual harbor charter to respondent O'Boyle, and she was returned in damaged condition on December 16, 1946. So much is not in dispute.
During that interval she was taken into custody and control by The Barrett Company, Inc., the impleaded-respondent, pursuant to arrangements made by it with O'Boyle, and the real controversy is as to her legal status for that period of time, and whether that party deemed to be the actual charterer has gone forward with proof sufficient to meet the requirements of libellant's prima facie case, the establishment of which was stipulated.
It should be said that the damage consisted of broken deck stringers, planks and rails about two-thirds of the length of the scow aft of the bow. There was a depression in the deck about three feet in diameter and about one and a half inches deep; there was no mark, fracture, or abrasion on the deck such as is customarily present when the damage is due to striking by a bucket or other heavy object.
A survey was held on December 20, 1946, of which no notice was given to Barrett, and naturally the latter was not represented.
The libel was filed March 18, 1947, the answer of respondent on August 13, 1947, and on the same day also the impleading petition. That apparently was the first notice to Barrett of the damage. At least there is nothing to show prior notice of claim against that company.
Barrett, among other things, operated a plant in Edgewater, N.J., at which pitch is produced, and transported via rail to a loading device called a coal tipple, on a dock also in Edgewater; the cars are there raised some 25 feet to the level of a pan, into which the pitch is turned as is done with coal. That load moves by gravity through a telescopic chute attached to the pan, into a ship, scow or other vessel for haulage by water.
The pitch is not thus handled until it has hardened into cakes and slabs, which on occasion are of such dimensions that they have to be broken into smaller bulk for manipulation.
It was to transfer some 491 long tons of such pitch from the said coal tipple, to the S.S. Caen lying at General Chemical dock, also at Edgewater, that Barrett obtained the use of the Seaboard #9. The arrangement was made by telephone call from Milton Prendeville, employed by and acting for Barrett, to Craig acting for O'Boyle. Thus the former:
'I called O'Boyle * * * , Mr. Craig, and told him I would need a certain amount of barges on a certain date, and he would take it from there.
'Q. That is the entire conversation that you had with Mr. Craig of O'Boyle with respect to these barges, is that correct? A. That is right.
'Q. What, if anything, did you do with respect to obtaining labor? A. I did nothing whatsoever.
'Q. You had nothing to do with that? A. No, sir.'
The foregoing being Barrett testimony is sufficient to demonstrate, in my opinion, that several scows, including Seaboard #8, were hired by Barrett from O'Boyle (Zeller Marine was the broker), in a separate contract from that referred to in O'Boyle Ex. D, which had to do with labor and equipment for loading the pitch from lighters into the S.S. Caen. A finding to that effect is hereby made.
Also, in default of evidence of a different understanding, what was contemplated by the parties and what went into effect as to Seaboard #9 was the customary harbor charter of a scow having her own scowmaster aboard. It is found that such was the relationship between O'Boyle and ...