The Jungshoved, 273.
| Decision Date | 07 May 1923 |
| Docket Number | 273. |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | THE JUNGSHOVED. v. DAMPSKIBS SELSK DANNEBROG et al. J. ARON & CO., Inc., et al. |
The Jungshoved, with a valuable cargo, arrived in the port of New York to the care of Funch Edye & Co., a concern which for the steamship owners has defended this case and others like it. The wharf available for the steamship was so crowded with goods that it was necessary to obtain lighters for storage i.e., to put cargo ex the steamer on lighters to await clearance of wharf. The unloading of the Jungshoved in this manner was in charge of one Fleet, an employee of Funch Edye & Co. and a man of much waterside experience for many years. In order to store certain coffee ex Jungshoved, Fleet first obtained two lighters, which were found to have insufficient capacity for all the coffee to be thus stored afloat. Therefore the lighter Crown, belonging to one Croasdale, was obtained by or for Fleet's use, who put cargo on board her, discharging by Smith & Sons as stevedores.
While lying in the slip and before receiving her apparent full load, the Crown sank, to the destruction of the coffee already on board. This suit was brought against the steamer to recover for failure to deliver the coffee. Liability on the part of the steamer has been admitted; the contest arises from proceedings under the former fifty-ninth rule, in which the claimants brought in the Crown in rem, her owner Croasdale in personam, as well as Smith & Sons, the stevedores, and the Harms Company, the brokers through whom Funch Edye & Co. had obtained the Crown. It was admitted before the close of trial below that no responsibility was established as to Smith & Sons, and they may be dismissed from consideration.
The questions litigated at trial and on this appeal are whether the recovery to which the libelant cargo owners are confessedly entitled shall be paid out of the proceeds of the Crown and/or the pocket of her owners, and also by Harms Company. The material allegations of the petition which brought in Croasdale and Harms are (in respect of Croasdale) that respondent was liable for having furnished an unseaworthy lighter, and (in respect of Harms) that 'in chartering the lighter Crown (the claimant) used reasonable care to secure a seaworthy barge with a competent captain and said Harms Company warranted the said barge to be tight, staunch, strong, and in all respects seaworthy,' whereas the cargo loss arising from the Crown's sinking was * * * ' The trial court gave decree against the steamer, Croasdale, and Harms in solido, with direction that execution issue first against Croasdale, then for any unpaid balance against Harms, and again for any unpaid balance against the steamship's stipulators. Both Harms and Croasdale appealed. The libelants and Smith & Sons submitted without argument.
Horace L. Cheney and Elliott L. Perkins, both of New York City, for harms co.
Pierre M. Brown and Macklin, Brown & Van Wyck, all of New York City, for Croasdale.
Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and Carl G. Stearns, both of New York City, of counsel), for claimant of Jungshoved.
MacFarland, Taylor & Costello and Alfred H. Strickland, all of New York City, for M. P. Smith & Sons Co.
Before HOUGH, MANTON, and MAYER, Circuit Judges.
HOUGH Circuit Judge (after stating the facts as above).
Considering the facts presented, it is quite impossible for Croasdale or the Crown to escape liability. Defense is made that the contract limited her load to a smaller amount than that with which she sank; i.e., that petitioners appellees overloaded her, and cannot therefore rely on that admitted implied warranty of seaworthiness which accompanied the vessel and affected her owner. As for the existence, nature, and extent of that warranty, it is enough to refer to The Sylvia, 68 F. 230, 232, 15 C.C.A. 362, affirmed 171 U.S. 462, 19 Sup.Ct. 7, 43 L.Ed. 241. As to the validity of the defense, we agree with the lower court that it is affirmative, and is not proven by a fair preponderance of credible testimony.
It follows that the fact stands uncontradicted that the Crown was tendered as suitable to carry the load for which her size fitted her, and under less than that load, in smooth water and calm weather, she sank; in the picturesque phrase of the water front, 'she just faded away' without explanation, then or since. This raises a presumption of unseaworthiness (Dupont v. Vance, 19 How. 162, 15 L.Ed. 584; The Kathryn B. Guinan, 176 F. 301, 99 C.C.A. 639), which, though rebuttable, has not been met. Therefore the lighter and her owner are liable, and may be held for damages if properly sued.
The ground of liability, in the absence of any evidence of negligence and after utter failure to prove incompetency in her master as alleged ut supra, is solely the implied warranty of seaworthiness, which exists whenever and wherever there is an undertaking to carry goods for hire; in a vessel and on navigable waters. The kind of carriage here contemplated was very humble; it consisted in lying still and acting as a warehouse; still it was carriage, in the sense of sustaining on the water, and that is enough.
But the court below not only decreed this liability as to Croasdale and the vessel, but simultaneously held Harms, and for the same reason, viz. breach of warranty of seaworthiness. To consider this branch of the matter, it must be observed that claimant's petition under the (then) fifty-ninth rule is in effect a declaration or complaint in an action against Harms and Croasdale as jointly and severally liable to relieve petitioner from the exigency of the libel, because they and each of them warranted the Crown's seaworthiness.
Why Croasdale so warranted is plain, as above shown; but Harms was held, and held suable in this form because as broker or agent he hired out the Crown to petitioner without simultaneously divulging both his agency and the identity of his principal-- i.e., Croasdale. Therefore, although the latter and the boat were liable on...
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