Bernstein v. Morse

• Decision Date: 03 November 1919
• Docket Number: 508.
• Citation: 261 F. 435
• Parties: BERNSTEIN v. MORSE.
• Court: U.S. District Court — District of Maine

261 F. 435

BERNSTEIN v. MORSE.

No. 508.

United States District Court, D. Maine.

November 3, 1919

Emery G. Wilson and Nathan W. Thompson, both of Portland, Me., for libelant.

Edward W. Wheeler, of Brunswick, Me., for respondent.

HALE District Judge.

The libelant alleges that he is the owner of a large scow, which he chartered to the respondent, to load and carry lumber from Portland to Bath, and from Bath to Portland and Harpswell Me. He declares the libel to be 'in a cause of contract civil and maritime. ' He does not, however, allege a breach of the contract, but proceeds to state a case in tort. He says that, after making the charter, the respondent took possession of the scow and proceeded to Harpswell with her where he loaded her with a large cargo of lumber, made her fast alongside the end of his pier at Great Island, where she was 'allowed to ground out at low water, and owing to the great weight of the lumber and the uneven bottom on which she grounded, said scow was badly strained and otherwise injured so that she filled and sank. ' The libel further alleges that 'by reason of the negligent way in which said respondent handled said scow the libelant has lost use of her, and is entitled to a reasonable compensation for such loss and for damages'; further, that certain sums are due to the libelant for the damage, loss, and demurrage 'sustained through the fault and negligence of said respondent and its agent, and not through any fault or negligence on the part of the libelant.' The libel does not allege that the respondent has failed to meet his contract obligation. Its averments, on which issue had been joined, are those of negligence.

The libelant's case rests, and has proceeded, on his allegations of negligence. The mere description of a case as one for breach of contract is not conclusive. Whether a case in admiralty is ex contractu or ex delicto is to be determined from an examination of the allegations of the whole libel, and not alone from its opening statement. Dittmar v. Frederick Star Contracting Co., 249 F 437, 439, 162 C.C.A. 3. The libelant's proofs also have proceeded on the theory that a case ex delicto is before the court. The libelant contends in his brief that he has shown a case of negligence. He urges that the proofs should lead me to find that the respondent was the charterer of the scow and had exclusive possession of her; that, while in such possession, he was guilty of negligence, in that he took the scow to a dock at Great Island, Harpswell, and loaded her too heavily on the offshore side, and then, instead of discharging any of the lumber, or trying to find out the trouble with the scow, when she began to list, he piled lumber on her inboard side, thus trying to right her up; that, when on an even keel, he left the scow overnight without any one to watch her, or to keep her pumped out, in case she started to list again; that during the night she rolled over and filled; that she grounded out at low water; and that the damage was caused by the respondent's negligent loading, by his carelessly allowing the scow to remain on a rough and uneven bottom, with a large cargo aboard, and by his further negligence in failing to take care of her after she sunk; that, instead of taking means to get the lumber off the scow immediately, by rafting, or in some other direct manner, the respondent attempted to notify the schooner Lizzie J. Call, which was then chartered by him and was discharging her cargo at Bath, and to get the schooner to Great Island for the purpose of taking the lumber off the scow and putting it on the schooner; that, while making this delay, a heavy fog set in, and the scow was compelled to stay in its sunken condition with a large amount of lumber aboard; that she grounded at low water on a hard, uneven bottom, and was thereby strained and damaged, and also suffered a loss in the nature of demurrage.

There is a sharp conflict in the proofs. Nearly all the witnesses were before me, and I had the opportunity of noting their appearance and of giving them some personal examination.

The general rule is that, in an action ex delicto, the libelant has the burden of proving negligence on the part of the respondent. In the case at bar, the scow was under a charter to the respondent and was in his exclusive possession. In Terry & Tench Co., Inc., v. Merritt & Chapman D. & W. Co., 168 F. 533, 93 C.C.A. 613, Judge Noyes, in speaking for the Court of Appeals for the Second Circuit, applied the rule that, 'where a ship is injured while in the exclusive possession of a bailee, the burden is upon such bailee to show: (1) How the injury occurred; (2) that it was free from negligence.'

I will assume that this rule may be applied in the case before me. This gives the libelant the benefit of the rule which would have prevailed, if he had alleged a breach of contract and a failure to return the scow in good condition at the end of the charter term. In that case the burden would have been upon the respondent to show justification for such breach.

Has the respondent met this burden of proving himself free from fault under the rule I have stated?

The scow is 97 feet long, 27 feet wide, and 9 feet 4 inches from her deck to her bottom; she has four pockets amidships. Each pocket is about 18 feet wide, 21 feet long, is V-shaped, and has a coaming about it. Her accustomed use had been that of a mud scow.

The respondent had manufactured certain lumber into box boards which he had sold to the Bath Box Company, to be delivered on its wharf at Bath. He had the schooner Lizzie J. Call under charter, capable of carrying about 150,000 feet of lumber. He went to the libelant for the purpose of hiring another schooner, to be used in connection with the Call, so that one could be loading while the other was discharging. The libelant told him he had no...