Seminole Lumber & Export Co. v. Bronx Barge Corporation

• Citation: 11 F.2d 982
• Decision Date: 07 April 1926
• Docket Number: No. 2333.,2333.
• Parties: SEMINOLE LUMBER & EXPORT CO. v. BRONX BARGE CORPORATION.
• Court: U.S. District Court — Southern District of Florida

11 F.2d 982 (1926)

SEMINOLE LUMBER & EXPORT CO. v. BRONX BARGE CORPORATION.

No. 2333.

District Court, S. D. Florida.

April 7, 1926.

E. J. L'Engle, J. W. Shands, and W. F. Rogers, all of Jacksonville, Fla., for cross-libelant.

George C. Bedell and Chester Bedell, both of Jacksonville, Fla., for cross-respondent.

CALL, District Judge.

This cause comes on to be heard upon the exceptions to the cross-libel, and interrogatories therein and in the answer propounded to libelant, and the motion to discharge the attachment issued upon the cross-libel and served by the marshal.

The exceptions to the cross-libel are upon the insufficiency of the facts alleged to show the liability of the libelant and cross-respondent, and rest upon the terms of the charter party, made a part of both the libel and cross-libel. This charter party provided:

"1. That said vessel shall be tight, staunch, strong, and in every way fitted for such voyage, and with proper towing hawser and lines."

"9. * * * Seaworthiness warranted only so far as ordinary care can provide, and owners are not liable for loss, detention, or damage arising from latent defects existing at the time of sailing."

The cross-libel, after alleging the charter of two barges, the Quantice and Neptune, the receipt of same at the port of New York, and towage of same to the port of Jacksonville, proceeds that, upon the arrival of said barge at Jacksonville, cross-respondent caused the Quantice to be drydocked and repaired, and thereafter said barge was redelivered to cross-libelant; that said repairs consumed the time from January 16th to January 23d; that, upon the arrival of the barge Neptune cross-libelant proceeded to load cargo, consisting of dried and dressed hardwood and pine flooring, etc., and, being partly loaded, the deck leaked from rain to such an extent as greatly damaged the cargo so loaded, which fact was reported to cross-respondent, whereupon it undertook to repair the deck and again tendered the Neptune to cross-libelant.

Thereupon cross-libelant proceeded to load both barges with building material, and proceeded to have the loaded barges towed from Jacksonville to West Palm Beach; that both barges leaked excessively through their decks and holds; that it was necessary to keep the gasoline pumps constantly operating, and by the time they arrived off West Palm Beach the Neptune had exhausted her supply of gasoline, and it was necessary to take her into that port to secure another supply. The cargo on the barges was greatly damaged by such leakings; that, these facts becoming apparent, cross-libelant declined to keep the barges (the charter party was for 90 days) and redelivered them to cross-respondent at West Palm Beach and it accepted them there.

It then proceeds to set forth the damages claimed by reason of the unseaworthiness of the barges; that charter agreed that the barges were tight, staunch, strong, and every way fitted for such voyage, with proper towing hawser and...