Boston Ins. Co. v. Dehydrating Process Co.

• Decision Date: 21 May 1953
• Docket Number: No. 4688.,4688.
• Citation: 204 F.2d 441
• Parties: BOSTON INS. CO. et al. v. DEHYDRATING PROCESS CO.
• Court: U.S. Court of Appeals — First Circuit

204 F.2d 441 (1953)

BOSTON INS. CO. et al. v. DEHYDRATING PROCESS CO.

No. 4688.

United States Court of Appeals First Circuit.

May 21, 1953.

Martin P. Detels, New York City (Seymour P. Edgerton, Boston, Mass., Daniel

A. Sullivan, Bigham, Englar, Jones & Houston, New York City, and Bingham, Dana & Gould, Boston, Mass., on the brief), for appellants.

Joseph F. Dolan, Boston, Mass. (Harry Bergson, Jr., Boston, Mass., on the brief), for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

WOODBURY, Circuit Judge.

Dehydrating Process Co., as the owner of a tank barge and its cargo of liquid fish, brought this libel in admiralty against Boston Insurance Company and three other underwriters to recover on policies of marine insurance for damage to the barge and loss of its cargo. The only question with which we are concerned on this appeal is whether the admitted loss of the cargo and damage to the vessel were caused by "perils of the sea," all other questions having been disposed of by concessions or by stipulation.

The barge involved was a rectangular steel vessel 130 feet long, 9 feet 9 inches deep and 31 feet wide having raked ends and a cambered deck, i. e. its bottom sloped upward to the deck at bow and stern, and its deck was slightly higher at the center than at the sides. It had buoyancy compartments at each end which extended from the rail at the outer end toward the middle some 6 feet beyond the point were the sloping ends met the approximately flat bottom.¹ The remainder of the hull was divided by transverse partitions into four cargo tanks of equal dimensions. On the stern over the after buoyancy tank there was a steel house weighing 8100 pounds and a steam pump and fittings weighing 5000 pounds so that empty the barge trimmed slightly by the stern.

Access to the buoyancy compartments and cargo tanks for the purpose of entry for inspection, cleaning, loading cargo, etc., was provided by two manholes in the steel deck over each one of the six compartments. The two manholes giving entry into each buoyancy compartment were directly opposite one another near the sides of the vessel and near the bulkhead or partition separating that compartment from the cargo tank next to it. The manholes giving access to each cargo tank were near the center line of the vessel one near each end of the tank and diagonally opposite one another. All of the manholes were provided with steel covers weighing about 50 pounds apiece which could be secured by studs.

The barge was towed to Gloucester, Massachusetts, on September 2, 1949, and tied up at a finger pier in the inner harbor about 200 yards from the libelant's plant. Soon thereafter employees of the libelant began to load the barge, and loading continued intermittently until about 11 P. M. on September 25, when the four tanks had been pumped nearly full of liquid fish. At that time the employee of the libelant in charge of loading shut off the pump which had been discharging liquid fish through a hose into tank number 4, removed the hose from the manhole through which he had been filling the tank and put the manhole cover on but did not fasten or "dog" it down.

It was found below in part on the testimony of this employee and in part on the testimony of an expert that when loading stopped at about 11 P. M. the barge was afloat on an even keel with sufficient freeboard to remain afloat, and it was found on the testimony of the employee that she "was right on an even keel" approximately an hour later when that witness again observed the vessel briefly in the light thrown by the headlights of his car. It is conceded that throughout the night of September 25-26 the weather was clear and the wind light.

Nevertheless, employees of the libelant about 5:00 o'clock in the morning of September 26 observed the barge to be sub-merged at the stern, and between 7:00 and 8:00 o'clock that morning it sank. The barge was promptly pumped out, floated, and hauled out for inspection when it was discovered that the hull was in as good condition as before the sinking except for trivial damage attributable to the stranding, consisting of minor dents and a few loose rivets which caused some insignificant leaking.

It was found below, and it is evident on the undisputed testimony as to the condition of the barge after it was raised, that the sea water which sank the barge could only have entered through the manholes in its deck. The issue is what caused the water to enter through the manholes.

Undoubtedly the libelant as the owner of the barge and its cargo has the burden of establishing by a balance of the probabilities that its loss was caused by a risk insured against, specifically in this case by a peril of the sea, for that is the only insured risk relied upon as the cause of the loss. But this does not mean that in every case an insured in the position of the libelant in the case at bar must point out the precise peril of the sea which caused the loss. It appears to be well settled in Great Britain and also in the United States, indeed the parties agree, that when a vessel sinks at a sheltered berth in calm weather without any obvious explanation, such as overloading or improper stowage of cargo, or collision, settling with the tide on a rock or other underwater obstruction, lightning, fire, explosion of cargo or other casualty, a presumption arises that the incursion of sea water which caused the sinking, and hence the loss, was due to the unseaworthiness of the vessel in some particular. But it appears to be equally well settled, and the parties also agree, that an insured can rebut the foregoing presumption by establishing that in fact the vessel concerned was seaworthy before the sinking, and was neither overloaded nor improperly loaded, and if he succeeds in doing so, the counter-presumption arises that the unexplained sinking and consequent loss was caused by some extraordinary, although unknown and unascertainable, peril of the sea. Anderson v. Morice, L.R. 10 C.P. 58, 67-68 (1874); Potter v. Suffolk Ins. Co., C.C.D.Mass. 1835, 19 Fed.Cas. No. 11,339, p. 1186; The Jungshoved, 2 Cir., 1923, 290 F. 733, 735.

The libelant, relying upon the second presumption, contended at the trial, and introduced evidence expert and otherwise to prove, that its barge was seaworthy before it sank, and that it was neither overloaded, nor loaded so heavily by the stern as to submerge its afterdeck. Thus, it says, even though there is no evidence of inclement weather, exposed position, wash from other vessels passing during the night, or other known cause for water to wash over the deck, it must be presumed that the incursion of sea water into the hull through the manholes was caused by some unknown peril of the sea. The insurers, on the other hand,...