Alpine Forwarding Co. v. Pennsylvania R. Co.
| Decision Date | 21 July 1932 |
| Docket Number | No. 437.,437. |
| Parties | ALPINE FORWARDING CO. v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Roscoe H. Hupper and Adrian J. O'Kane, both of New York City, of counsel), for appellant.
Purdy & Purdy, of New York City (John E. Purdy and William F. Purdy, both of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff owned a barge which it orally demised to the defendant from day to day on a per diem hire, the bailor to furnish a bargee, the bailee to pay him and use her at its pleasure, and to return her at the end of her service. There was no express promise to return in good condition. Nine months later the defendant was towing her, lightly laden, on the starboard side of a tug with a lighter outside, and two lighters on the tug's port side, from Greenville, New Jersey, to Brooklyn. The tug had put the lighters at their several slips, and with the barge alone was coming to her destination, when, less than two hundred feet away, for some unknown reason she suddenly began to settle and sank. When raised, it was found that of the thwartships planks which formed her bottom, that nearest the stern "mud log" was gone. On the side of one of the fore and aft bilge logs there was a nine inch bruise or gouge, just above one end of the missing plank, about three inches wide and a half inch deep, which could have been made by a descending blow that, if carried below the bilge log, would strike the end of the plank, and might loosen it from its seat. The barge had been repaired fifteen years before, but it did not appear how old the plank was; it was spiked to the bilge-log and had been torn away, leaving some of the spikes in position. Nobody could explain how the plank had been loosened, or whether it was torn off in raising the barge, though obviously she had suffered some damage before she settled and sank.
The plaintiff sued at law upon the bailment, charging only a failure to return in good condition, reasonable wear and tear excepted; the answer denied some of the allegations, but pleaded no defence. Upon the trial the plaintiff proved the delivery and return in bad condition and rested. Strictly the complaint was bad on its face; the bailee can be held only for his negligence in the case of a demised barge. Harms Co. v. Upper Hudson Stone Co., 234 F. 859 (C. C. A. 2); The Junior, 279 F. 407 (C. C. A. 2). Indeed even a promise to return in good condition imposes no greater obligation, at least in this circuit Mulvaney v. King Paint Co. (C. C. A.) 256 F. 612, 615; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Berwind White Coal Mining Co. v. U. S. (C. C. A.) 15 F.(2d) 366; though whether it places the burden of proof upon the bailee to excuse his default has apparently never been decided. The defect in the complaint probably arises from confusing a sufficient prima facie case with a sufficient pleading; it is common in the admiralty. But it is nevertheless a defect (Claflin v. Meyer, 75 N. Y. 260, 264, 31 Am. Rep. 467), because a party must plead all he must prove, and he must prove the fault Taylor Bros. Lumber Co. v. Sunset Lighterage Co., 43 F.(2d) 700, 702 (C. C. A. 2). Since however the defendant has not raised the question, we proceed as though the complaint had alleged that the bailee's default was due to its neglect.
The bailor, upon proving the bailment and injury, is entitled to the benefit of a presumption of fault which the bailee must meet by showing, either how the barge was injured, or that however that was, it was not due to his neglect. Cummings v. Pennsylvania R. Co., 45 F.(2d) 152 (C. C. A. 2); Schoonmaker Conners Co. v. Lambert Transp. Co., 268 F. 102 (C. C. A. 2). The second alternative requires proof of all that the defendant has done with regard to it. In the case at bar the defendant proved that on the trip from Greenville to Brooklyn nothing untoward happened, thus covering so much of its custody. To prove that it was not at fault before the trip began it relied upon...
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