Sanbern v. Wright & Cobb Lighterage Co.

• Decision Date: 28 May 1909
• Docket Number: 2.,1
• Citation: 171 F. 449
• Parties: SANBERN v. WRIGHT & COBB LIGHTERAGE CO. (two cases).
• Court: U.S. District Court — Southern District of New York

171 F. 449

SANBERN v. WRIGHT & COBB LIGHTERAGE CO. (two cases).

Nos. 1, 2.

United States District Court, S.D. New York.

May 28, 1909

Syllabus by the Judge

Where a loss of cargo occurred through the sinking of the carrying boats and it was found that no adequate cause appeared for the sinking, held that the boats should be deemed to have been unseaworthy and that their owner was liable to the shipper of cargo.

The contract provided that the respondent company should furnish 'good, sound, insurable' boats and look to one of the libellant companies for the loss in case of a marine disaster. Held, that where unseaworthy boats were supplied the respondent company was not entitled to resort to the agreement.

A contention on the part of the respondent company that its liability should be limited to the value of the boats, not sustained because the responsible agent of the company neglected to avail himself of an opportunity to ascertain the condition of the boats.

A claim by the respondent company that the libellant Trading Company was not entitled to recover because it was not the owner of the goods rejected, it being held that the Trading Company having obtained possession of them, with the right to sell and collect the proceeds, was entitled to bring the action here.

Kneeland & Harison, for libellant.

Wray & Callaghan, for respondent.

ADAMS District Judge.

The first of the above entitled actions was brought by Albert W. Sanbern, the assignee of the New York Glucose Company, and of the General Trading Company, to recover the damages caused by the loss of 250 barrels of glucose and of 380 bags, 400 boxes and 50 barrels of starch, the result of the capsizing of the lighter Star, owned by the respondent, on the 12th day of September, 1905, while being towed from Edgewater, New Jersey, to Pier 21, North River. The fault alleged by the libellant was the defective and unseaworthy condition of the lighter. The losses were said to have amounted respectively to $3,387.38 and $1,667.49, amounting altogether to $5,054.87. After various admissions and denials, the respondent alleged:

'Further answering said libel, respondent alleges:

Seventh: That on September 12th, 1905, at about 2 o'clock A.M., the steam lighter 'Leonard J. Busby' took said lighter 'Star' in tow at Edgewater, N.J., as aforesaid, alongside on her starboard side, and, at the same time, took another barge in tow alongside on the port side. The tide was highwater slack at the time and rain was falling, with little or no wind. After leaving Edgewater, N.J., the wind blew from the southeast and when said steam-lighter, with her tow, reached a point about off Pier 50, North River, the wind increased to a gale and the sea became rough. About in this neighborhood said tug and tow ran into floating debris in the river, consisting of logs, spiles and other timber. The said steam-lighter slackened her speed more than once in order to prevent damage to her said tow, and proceeded cautiously for her destination. Shortly afterward it was discovered that said lighter 'Star' was making water very fast. Her pump was set to work and was worked continuously but the water continued to gain. The said lighter's pump was worked continuously and said steam-lighter continued with said tow. When said steam-lighter and tow reached a point about abreast of Pier 23 and were preparing to land said barge 'Star' at Pier 21, said barge, without any warning, or premonition, listed over to port, dumped her cargo and then turned bottom side up. Those on said steam-lighter cut loose from said lighter 'Star' and landed the remainder of her tow and returned to get the 'Star,' but it was found that she had drifted into Pier 21, North River. She was thereafter righted and towed to a dry dock.

That at the time said lighter 'Star' left Edgewater, N.J., she was tight, staunch and strong and seaworthy, properly manned, fitted and equipped and that said disaster was not caused through any fault or negligence on the part of the respondent, its servants or employes.

Further answering said libel, and as a separate defense, respondent alleges:

Eighth: That on or about the 5th day of February, 1903, your respondent and the New York Glucose Company, above mentioned, entered into a contract in writing whereby it was, among other things, agreed that the respondent should lighter the output of the factory of said New York Glucose Company at Shadyside, N.J., upon the terms and conditions in said agreement named. That said agreement was in full force and effect at all the times mentioned in the libel herein and thereafter. That said cargo so taken aboard said lighter 'Star,' as aforesaid, was shipped by said New York Glucose Company and received by respondent for lighterage pursuant to, and in compliance with the terms and conditions of said agreement, and not otherwise. That said agreement contained the following clause:

'It is further understood that we are to give and take receipts at both points of loading and unloading, and any discrepancies in quantities, in case of shortage as taken on board and as delivered, to be paid for by us, except in the event of a loss or damage by fire or marine disaster, in which case your company would look for compensation to the underwriters who might have insured the cargo; it being understood that your company will effect the insurance on all cargoes lightered, yourselves, and that the lighterage company shall not be held responsible in any way should such an accident chance to occur.'

Ninth: That all of said cargo was delivered to respondent and shipped by said New York Glucose Company, and by no other person. That the damage to said cargo, set forth in the libel herein, was caused by a marine disaster, and that said loss and damage came within the terms of said agreement between said New York Glucose Company and respondent; that by reason of the premises, respondent was not liable for any loss of or damage to said cargo.

Respondent further answering the libel herein, and for a further and separate defense, alleges:

Tenth: That respondent is the owner of said lighter 'Star'; that said lighter was tight, staunch and strong and seaworthy, properly manned, tackled, apparelled and equipped at the time she started upon said voyage; that said damage, sinking and loss occurred without the privity or knowledge of respondent, and if respondent shall be held responsible for said damage, sinking and loss, or any part thereof, by reason of the acts or things done or omitted by those in charge of its said property, respondent prays leave to limit its liability herein to the value of said lighter 'Star,' her tackle, etc., at the time of said sinking, as she then lay, and her pending freight, which value and pending freight amounted to nothing whatever.

Respondent therefore claims the benefit of sections 4283 and 4284 of the Revised Statutes of the United States, and the acts amendatory thereof and supplemental thereto and of all other acts limiting the liability of shipowners.'

The second of the actions was also brought by Sanbern, as assignee of the same companies, to recover the damages, caused to his assignors, by the sinking of the lighter Eagle, owned by the respondent, at Pier 49, North River, on the 31st of December, 1905, and the consequent injury to 7 barrels of glucose and 16 barrels of grape sugar, a part of 100 barrels of the former and of 70 barrels of the latter, the property of the Glucose Company, and a part of 14 barrels and 50 bags of starch, and of 150 bags of dextrine, the property of the Trading Company and for injury to the remainder of the shipment. The losses were said to have amounted respectively to $1,287.14 and $1,213.58, altogether to $2,500.72. The fault alleged by the libellant was the defective and unseaworthy condition of the said lighter.

After various admissions and denials, the respondent alleged:

'Further answering said libel, respondent alleges:

Seventh: That said barge 'Eagle' was made fast to the South side of the pier at 49th Street, on the last of the flood tide, lying with her starboard side next to the dock; that when she was so made fast, said lighter was tight, staunch and strong and seaworthy, and that she rested properly and floated easily, and her cargo was so placed on board thereof as to properly trim said lighter; that as the tide receded said lighter settled upon some sunken object in such manner as to break in one of her planks near the bottom of said lighter, and she immediately filled and sank before anything could be done to prevent it.

That said disaster was not caused through any fault or neglect on the part of the respondent, its servants or employes, but happened through some cause unknown to respondent, other than as above set forth.

Further answering said libel, and as a separate defense, respondent alleges:'

Eighth and Ninth: These are as pleaded in eighth and ninth paragraphs of the separate defense of the...