C.F. Harms Co. v. Upper Hudson Stone Co.
| Decision Date | 11 April 1916 |
| Docket Number | 231. |
| Citation | 234 F. 859 |
| Parties | C. F. HARMS CO. v. UPPER HUDSON STONE CO. et al. |
| Court | U.S. Court of Appeals — Second Circuit |
A. Leo Everett and Everett, Clarke & Benedict, all of New York City for appellant.
Mark Ash and Alexander & Ash, all of New York City, for appellee Hudson Stone Co.
G. V A. McCloskey, William J. Martin, and Foley & Martin, all of New York City, for appellees Crew and others.
F. V Barns and James J. Macklin, both of New York City, for appellee C. F. harms Co.
Before COXE and WARD, Circuit Judges, and LEARNED HAND, District judge.
The libelant, Harms Company, owner of the scow Castor, chartered her to the respondent Upper Hudson Company under a time charter. The Hudson Company loaded her with stone consigned to Paladino Bros. alongside the bulkhead of John J. Guinan in Coney Island creek, between West Twenty-Second and Twenty-third streets, Brooklyn, and directed the tug H. B Moore, Jr., to tow her there. The scow arrived at the bulkhead at 5 p.m. at half flood tide and, the discharging berth being occupied, Guinan's agent directed her to be made fast at the bulkhead astern of the boat that was unloading, which was done. Early the following morning, as the tide fell, the starboard quarter grounded on a lump, and, the rest of the scow continuing to fall with the tide, she was badly twisted and strained. Her owner filed this libel against the charterer to recover his damages on the ground that it had ordered her to an unsafe berth.
The charter party containing no covenant to return in good order and condition and the claim being in tort, the charterer can be held only for negligence. It brought in Paladino Bros., the consignee, Crew and others, owners of the tug, and John J. Guinan, the wharfinger, as parties defendant, under the fifty-ninth rule. Paladino Bros. defaulted. The District Judge entered a decree in favor of the libelant, with costs, against Guinan, dismissed the libel as to the Upper Hudson Company and also as to Paladino Bros., without costs, and as to Crew and others, with costs to be taxed against the Upper Hudson Company. Guinan appealed, and the libelant, having sought affirmative relief in this court, is to be treated as appealing also. The S. V. Luckenbach, 197 F. 893, 117 C.C.A. 214.
Careful soundings after the accident showed that the bottom shelves out from the bulkhead and that there is a lump opposite and some 10...
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...(D. C.) 277 F. 436; Moran Towing & Transportation Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696; C. F. Harms Co. v. Upper Hudson Stone Co. (C. C. A.) 234 F. 859; C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612; The Junior (C. C. A.) 279 F. 407, 408. Therefore this ac......
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