Richmond Sand & Gravel Corp. v. Tidewater Const. Corp.

• Decision Date: 08 November 1948
• Docket Number: No. 5771.,5771.
• Citation: 170 F.2d 392
• Parties: RICHMOND SAND & GRAVEL CORPORATION v. TIDEWATER CONST. CORPORATION et al.
• Court: U.S. Court of Appeals — Fourth Circuit

170 F.2d 392 (1948)

RICHMOND SAND & GRAVEL CORPORATION v. TIDEWATER CONST. CORPORATION et al.

No. 5771.

United States Court of Appeals Fourth Circuit.

November 8, 1948.

John W. Oast, Jr., of Norfolk, Va., for Richmond Sand & Gravel Corporation.

John T. Casey, of Washington, D. C., Atty. Department of Justice (H. G. Morison, Asst. Atty. Gen., George R. Humrickhouse, U. S. Atty., of Richmond, Va., and

J. Frank Staley, Sp. Asst. to the Atty. Gen., on the brief), for Tidewater Construction Corporation.

Roy L. Sykes and R. Arthur Jett, both of Norfolk, Va., for Connecticut Fire Ins. Co.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

These libels in admiralty arose out of the capsizing of the scow Janet McGeeney. The parties concerned in the appeals are the Richmond Sand and Gravel Corporation (hereinafter referred to as Richmond), the Tidewater Construction Corporation (hereinafter referred to as Tidewater) and the Connecticut Fire Insurance Company (hereinafter referred to as Connecticut).

On October 14, 1942, Richmond, per the tug Fisher No. 13, delivered its scow Janet McGeeney, loaded with 533.19 tons of gravel or grits, to Tidewater, at a wharf about 1,000 feet north of Tidewater's job site. At about 4:30 P.M. on October 15, Tidewater's tug Mars shifted the McGeeney to a berth at the job site alongside Tidewater's Derrick Rig No. 12, where unloadings operations from the McGeeney were begun, and before quitting time approximately forty tons of grits were unloaded. The scow was periodically inspected by Tidewater's night watchman and found to be floating without increasing her list and without any appreciable water in her hold until she was boarded during the darkness of the early morning of October 16, when she was found to be leaking rapidly. Despite all efforts to save her, she capsized, her deck riding over and sinking the Rig No. 12 to which she was still moored.

Richmond libelled the tug Fisher No. 13, and her owner, and Tidewater for the damages to the McGeeney. Connecticut intervened and cross-libelled Richmond and the tug Fisher No. 13, and owner, for the sum of $7,680.86, the amount it had paid to Tidewater as insurer of Tidewater's Rig No. 12, sunk by the capsizing of the McGeeney. The suits were consolidated and tried together. The District Judge exonerated the tug Fisher No. 13, and owner, from all liability and no appeal has been taken from this action. He found that the capsizing of the McGeeney resulted from her own unseaworthy condition and dismissed Richmond's libel of Tidewater; and Richmond appeals. In Connecticut's cross-libel of Richmond, the District Judge found that the sinking of Rig No. 12 had been caused by the joint negligence of Richmond and Tidewater and, pursuant to the admiralty rule for division of damages, awarded Connecticut, as subrogee of Tidewater, the sum of $3,840.43, that being one-half of the amount Connecticut had paid to its insured, Tidewater. Both Connecticut and Richmond appeal from this portion of the judgment.

In its libel for the damages to the McGeeney, Richmond relies upon the familiar rule in the law of bailments that a prima facie presumption of negligence on the part of the bailee arises from the bailor's proof that the bailed article was delivered in good condition and was returned damaged, or not returned at all. Seaboard Sand & Gravel Corporation v. Elmhurst Contracting Co., 2 Cir., 159 F.2d 860; The C. W. Crane, 2 Cir., 155 F.2d 940. Applying this principle, Richmond asserts that it is entitled to a verdict since it has proved that the McGeeney was in seaworthy state when delivered and that Tidewater has failed to explain how the disaster occurred. It is necessary that we consider briefly the effect of this presumption.

The presumption does not — as suggested by Richmond — cast upon the bailee the ultimate burden of proving how the damage occurred. Thompson v. Chance Marine Const. Co., 4 Cir., 45 F.2d 584; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152. It is a rebuttable presumption whose sole effect is to shift to the bailee the burden of proceeding with the evidence. Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 111, 62 S.Ct. 156, 86 L.Ed. 89; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L. Ed. 559. There are, in general, two ways in which the bailee may rebut the presumption. He may show either how the disaster in fact occurred and that this was in no way attributable to his negligence, or that he exercised the requisite care in all that he did with respect to the bailed article so that, regardless of how the accident in fact transpired, it could not have been caused by any negligence on his part. The Dupont, D.C. 14 F.Supp. 193; see Bank v. Chas. Kurz Co., D.C., 69 F.Supp. 1017, 1018. The presumption is not evidence for the consideration of the jury, see Alpine Forwarding Co. v. Pennsylvania R. R., supra, 60 F.2d at page 736, and once rebutted in either of these fashions, disappears from the case. Waldie v. Steers Sand & Gravel Corporation, 2 Cir., 151 F.2d 129. It is thus solely a procedural device and does not in any way affect the ultimate burden of proving the bailee's negligence, which burden remains throughout with the plaintiff-bailor. Commercial Molasses Corporation v. New York Tank Barge Corporation, supra; Seaboard Sand & Gravel Corporation v. American Stevedore, 2 Cir., 151 F.2d 846; The Dupont, supra.

Tidewater has shown itself free of any negligence which might have caused the damage to the McGeeney. The evidence proved conclusively that Tidewater's employees made frequent inspections of the McGeeney from the time she came into its possession until the leakage was discovered on the morning of the sixteenth. Tidewater produced as a witness a deckhand who was aboard its tug Mars when that tug moved the McGeeney from the dock where she was originally moored to the berth alongside Rig No. 12 where she finally capsized. This witness testified — and the Trial Judge expressly found — that no damage was done to the McGeeney during this shifting of berths and that this movement was "properly and safely" made. Tidewater introduced also the operator of Rig No. 12 who partially unloaded the McGeeney on the afternoon of the fifteenth. He testified as to the method of unloading and the Trial Judge found that this method was "reasonable and proper." Finally, the Judge found, generally, that "no act or omission of * * * the Tidewater Construction Corporation at any...