Tygert-Allen Fertilizer Co. v. Hagan
| Decision Date | 20 August 1900 |
| Docket Number | 67. |
| Citation | 103 F. 663 |
| Parties | TYGERT-ALLEN FERTILIZER CO. v. HAGAN. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Horace L. Cheyney and John F. Lewis, for libelant.
John A Toomey, for respondent.
Early in July, 1898, the steamship Scotia brought to the port of Philadelphia a cargo of kainit,-- a mineral used in the manufacture of fertilizers,-- consigned to the libelant, and deliverable from the ship's side. The ship was moored at pier 43, and in order to move the cargo to the libelant's factory it was necessary to employ barges, and among these the Samuel F. Houseman, a barge belonging to the respondent, was hired by the libelant on July 3d. Loading was begun on the afternoon of that day, and finished about 10 o'clock at night. The following day was the 4th, and the barge remained alongside the ship until late in the evening,-- perhaps 10 or 11 o'clock,-- when she sank in her berth, thus causing a total loss of the mineral. The libelant avers that the barge was unseaworthy, and brings the action upon this ground.
The first defense is that the barge was not hired to the libelant, but to the Philadelphia Lighterage Company, from whom the libelant had hired two or three other barges to carry a part of the cargo. I do not think that the testimony establishes this defense. It is true that Mr. Brown, with whom the contract of hiring was made by the respondent, was an employe of the lighterage company, but he did not make the contract in this capacity. On the contrary, he was acting for the libelant at the express request of its shipping clerk and, in my opinion, he disclosed his agency to the respondent, and hired the barge, not for the lighterage company, but for the libelant. Upon this point-- the disclosure of his agency-- the testimony is in conflict, but I find the fact to be as just stated.
A second defense is that the libelant expressly agreed to take the barge at its own risk. This position is based upon a misunderstanding of the testimony. The libelant did agree with Mr. Brown that, if he would hire the barge from the respondent, the libelant would take the boat at its own risk but this agreement was only intended to relieve, and only did relieve, the lighterage company from liability. It was not made with the respondent, nor intended to affect him, and therefore has no bearing on the present controversy.
The third and principal defense is that the...
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Wessel Duval & Co. v. Charleston Lighterage & Transfer Co., 929.
...171 F. 449, affirmed (C. C. A.) 179 F. 1021; The Willie (D. C.) 134 F. 759; Dupont v. Vance, 19 How. 162, 15 L. Ed. 584; Tygert, etc., Co. v. Hagan (D. C.) 103 F. 663. The record shows a sharp contention on the question of seaworthiness of the lighter. There is clear evidence that she had b......
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