Wessel Duval & Co. v. Charleston Lighterage & Transfer Co., 929.

• Decision Date: 31 March 1928
• Docket Number: No. 929.,929.
• Citation: 25 F.2d 126
• Court: U.S. District Court — District of South Carolina
• Parties: WESSEL, DUVAL & CO. v. CHARLESTON LIGHTERAGE & TRANSFER CO.

25 F.2d 126 (1928)

WESSEL, DUVAL & CO. v. CHARLESTON LIGHTERAGE & TRANSFER CO.

No. 929.

District Court, E. D. South Carolina.

March 31, 1928.

Huger, Wilbur, Miller & Mouzon, of Charleston, S. C., for petitioner.

Middleton & Middleton, of Charleston, S. C., for claimants.

Before HALE, District Judge, sitting in this district under designation of the Chief Justice.

HALE, District Judge.

The petitioner seeks to exonerate itself from all liability by reason of the sinking of the lighter No. 25 on October 22, 1925, and the consequent loss of her cargo, and, failing in that, to limit its liability.

The libel in rem is against the tug Courier and lighter No. 25, and in personam against the Charleston Lighterage & Transfer Company, by Wessel, Duval & Co., alleging damages as cargo owners of the cargo on the lighter. A claim has also been filed by the cargo owners on lighter No. 25, seeking to recover from the petitioner the value of the cargo by reason of the sinking of the lighter.

It appears that Frederick Richards, lessee of the Seaboard Air Line wharf, at which the lighter sank, arranged by telephone with the petitioner for certain lighters to be used in expediting the unloading of a cargo of nitrate from the steamship Tilthorn. Thereafter the petitioner delivered to Mr. Richards the lighters in question. The tug Courier brought the lighters to the slip by the Seaboard wharf, and placed No. 25 opposite No. 1 hatch of the steamer, which overlapped the head of the wharf. Afterwards lighter No. 25 was loaded with 1,965 bags of nitrate, of the average weight of 164 pounds each. The lighter was afterwards shifted by the Courier from the side of the steamer and placed along the wharf near the head; No. 28 was put by the Courier in the position alongside the steamer which had been occupied by No. 25. Shortly after 7 o'clock that evening, lighter No. 25 sank, causing the total loss of the nitrate loaded upon her.

It is contended by the claimant: First, that lighter No. 25 was unseaworthy, and that the petitioner breached its implied warranty of seaworthiness; second, that the tug Courier was at fault for not standing by No. 25, when the petitioner had agreed to have her do so, and when the Courier knew, or had reason to know, that the lighter was leaking; third, that the petitioner is not entitled to limit its liability because of its privity and knowledge.

At the threshhold of the proceedings there is a sharp conflict between the parties on the question of the character of the contract made by Richards with the petitioner — the petitioner contending that the contract was merely of rental of the lighter, to act as a part of the wharf for unloading the cargo of nitrate, and that the contract did not include the services of the tug in placing the nitrate, or for any other purpose; the claimant contending that the contract was a contract of carriage, and included the services of the tug in shifting the lighter from the side of the ship to the western end of the wharf. I do not think it necessary to decide as to the exact character of the contract, as I am of the opinion that, even if the contract were one of rental, the hiring of the lighter for unloading the cargo carried with it the implied warranty of seaworthiness; for it cannot be presumed that the petitioner could hire out an incompetent vessel for the purpose of unloading cargo; and the courts have held that the hiring of a vessel merely as a warehouse is "for carriage," in the sense that sustaining on the water may be held to be "carriage." The Jungshoved (C. C. A.) 290 F. 733.

The petitioner contends that, if the contract were one of carriage or affreightment, then, under the Harter Act (46 USCA §§ 190-195; Comp. St. §§ 8029-8035), the petitioner is not liable for the loss of the cargo; but, even if this is so, it is necessary to consider the testimony bearing upon the question whether or not the petitioner has, by a preponderance of the evidence, shown the seaworthiness of the lighter. The lighter, in fact, sank while in the dock. The burden is upon the petitioner to show seaworthiness. The courts have invariably held that any doubt as to the seaworthiness of a ship must be resolved in favor of the shipper, and that seaworthiness must be shown by a fair preponderance of the evidence. Arundel, etc., Co. v. Naylor & Co. (C. C. A. 4) 242 F. 494; Oregon Round Lumber Co. v. Portland, etc., Co. (D. C.) 162 F. 912; The Rosalie McLoughlin (D. C.) 186 F. 255; The Kathryn B. Guinan (C. C. A.) 176 F. 301; Sanbern v. Wright (D. C.) 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 been inspected with care many times by the employees of the petitioner; that H. J. Graham, the petitioner's superintendent, a man of large experience, had carefully inspected her on the day before she was delivered; that the inspection was done with the assistance of one Gillam, a negro ship carpenter, with oakum, mallet, and caulking irons, going over each seam; that Graham had reported he considered her in good condition; that he did not take Gillam's word in the matter, but followed him to the lighter and examined it; that after he heard she was leaking, he told Gillam to get oakum and caulking iron and go to the Seaboard wharf; that, upon reaching the wharf, Graham went from one end to the other of the lighter, finding no evidence of any leak; that, after having been submerged for 11 days, she was examined by the agent for the underwriters of the cargo, who employed John Hunt, a shipwright of 40 years' experience in work of that character; that Hunt examined the seams of the lighter with a mallet and caulking iron, testing them to see whether the caulking iron would come through the seam when struck by the mallet, and his conclusion was that the lighter was in a condition for carrying a cargo of 150 tons.

The petitioner further introduced testimony that the claimant's agent, Richards, paid in full for the rental of the lighter during the time she was used and embracing the period during which she was sunk, and also paid for the services rendered by the tug in pumping the lighter out after she had been sunk. The petitioner offered testimony tending to show that the unseaworthiness of the lighter was not the cause of her sinking, but that, when she was heavily loaded, she was caught under a cross brace of the wharf, through no fault of the lighter nor of the petitioner. It is unnecessary to discuss in detail the testimony on this question. It is enough to say that, even though great diligence in inspection is shown, on the whole, the burden being upon the petitioner, I am not satisfied that it has shown, by a preponderance of the evidence, a clear and sufficient excuse for her sinking. I am constrained to find, then, that she must be held to have been unseaworthy.

Is the petitioner entitled to limit its liability to the value of lighter No. 25?

Section 4283 of the United States Revised Statutes (46 USCA § 183; Comp. St. § 8021) provides: "The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."

The case shows no express warranty by the petitioner of the seaworthiness of the lighter. There was no written agreement. There were verbal conversations between Richards and Whitsitt, the president, and between Richards and Graham, the superintendent, of the petitioning corporation. These conversations were conducted over the telephone, and the services of the lighter were engaged, but nothing appears to have been said about her seaworthiness. It is contended by the claimant that the petitioner did not examine the lighter in a proper and seamanlike manner, and that a sufficient examination would have disclosed her leaking condition and her unfitness for sustaining a load of nitrate at the wharf; that the petitioner must have known that she was leaking, and must have known that she had been left for a long time in a position where her seams would be likely to open and leave her in a leaking condition; that Graham's testimony is unsatisfactory; that the testimony of Gillam is still more unsatisfactory; and that he had been guilty of a crime involving moral turpitude, which bears vitally upon his credibility as a witness. And the claimants cite McGill v. Mich. S. S. Co. (C. C. A.) 144 F. 788; Oregon, etc., Co. v. Portland, etc., Co. (D. C.) 162 F. 912; The Pelotas (D. C.) 7 F.(2d) 238; Petition of Diamond Coal & Coke Co. (D. C.) 297 F. 238; aff'd (C. C. A.) 297 F. 246; cert. den. 265 U. S. 595, 44 S. Ct. 638, 68 L. Ed. 1197; The Murrell (D. C.) 188 F. 727; In re Ross (C. C. A. 2) 204 F. 248; The John H. Starin (C. C. A.) 191 F. 800; The Santa Rosa (D. C.) 249 F. 160; In re Reichert Towing Line (C. C. A.) 251 F. 214.

The right of the petitioner to limit its liability to the agreed value of the lighter depends upon the question of privity and knowledge. Benedict on Admiralty (5th Ed.) volume 1, defines these terms:

"The terms `privity' and `knowledge,' the scope of which is illustrated by numerous cases, are coupled as parts of a single expression and must be understood in relation to each other. The knowledge contemplated by the statute is knowledge of something contributory to a loss for which the shipowner is liable; his privity is the failure to make use of that knowledge to prevent such loss. Without negligence...