33 F.2d 94 (2nd Cir. 1929), 229, Hansen v. E.I. Du Pont de Nemours & Co.

Docket Nº:229.
Citation:33 F.2d 94
Party Name:HANSEN v. E. I. DU PONT DE NEMOURS & CO., Inc.
Case Date:April 08, 1929
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 94

33 F.2d 94 (2nd Cir. 1929)




No. 229.

United States Court of Appeals, Second Circuit.

April 8, 1929

Appeal from a decree of the District Court for the Western District of New York upon a libel in personam in the admiralty, holding the respondent liable for the destruction by fire of a tug and two barges owned by the libelant.

The facts disclosed were as follows: The respondent was shipping a cargo of smokeless powder and cordite in a concrete barge en route from Wilmington, Del., to a point west of Buffalo. The barge sank in the Erie Barge Canal, near Rome, N.Y., and the respondent sent its agent, one Kavanaugh, who with the underwriter's agent was to salve it and set it again on its journey. The wetting did not injure it, or at least did not destroy

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its inflammability, but it was not explosive unless ignited. Needing some means of carriage, Kavanaugh inquired in the neighborhood and learned that the libelant had a flotilla of two wooden barges and a tug at Baldwinsville, near by, as to whose availability he inquired of one Cross, the libelant's president. After some negotiation, Cross and Kavanaugh agreed that the barges should be sent to the wreck to receive the cargo. On their arrival Kavanaugh began to stow the powder into them and after five days laded them both.

There was much testimony as to the way in which this was done, and it was unquestioned that in the process some of the cases were injured and had to be recoopered. The cargo filled, not only the libelant's two barges, but a third, which Kavanaugh procured from another person and added to the flotilla. There was evidence that the cargo on the Alice F. Clark, one of the libelant's barges, was badly stowed, the boxes being broken and not sufficiently mended, the contents in some cases protruding from the cracks; the deck was strewn with pieces of cordite, which comes in heavy strings, some inches long; the hatches left open and the broken boxes exposed. By the time the stowage was finished, Kavanaugh had procured the use of the tug as well, and made a written agreement as to all three, prepared by the libelant and signed by him in the respondent's name. By this the respondent agreed to pay $75 a day and furnish all coal for the tug 'for use of towing' the two barges, 'which we also rent of you (the latter at the rate of $20 per day) from Rome, N.Y., to Buffalo, N.Y., and to continue until her return to Baldwinsville, N.Y. The rental on the boats * * * to apply from the time they are delivered to us at Rome, N.Y., until their return. * * * Further, we assume all risks on cargo. If more than one boatman required, we to pay for same extra. ' Only one bargee was in fact required, and he had been in charge of both barges from their delivery.

The tug arrived with a full crew and took the three boats in tow bound westward. On Sunday, June 25th, the flotilla lay at a place called Verona Beach, in a lake which was part of the canal. The barge Clark had been leaking badly from her delivery, and was still making water, so that the tug's master thought it unwise to cross the lake that day, and decided to lie over until the weather seemed more favorable. Meanwhile the bargee and several members of the tug's crew were trying to put in order a...

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