Dempsey v. Downing

• Decision Date: 12 January 1926
• Docket Number: No. 2364.,2364.
• Citation: 11 F.2d 15
• Parties: DEMPSEY et al. v. DOWNING et al.
• Court: U.S. Court of Appeals — Fourth Circuit

11 F.2d 15 (1926)

DEMPSEY et al. v. DOWNING et al.

No. 2364.

Circuit Court of Appeals, Fourth Circuit.

January 12, 1926.

John W. Oast, Jr., of Norfolk, Va. (Oast, Kelsey & Jett, of Norfolk, Va., on the brief), for appellants.

H. H. Little, of Norfolk, Va. (Hughes, Little & Seawell, of Norfolk, Va., on the brief), for appellees.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

WADDILL, Circuit Judge.

The libel in this case was filed by the appellees to recover damages to certain portions of cargo placed by appellees upon the barges Katherine Dempsey and Experiment, owned and operated by appellants, because of the alleged unseaworthiness of the barges. The case arose in this manner:

In the month of April, 1922, the British steamship Justin, loaded with a general cargo from New York to South America, via Hampton Roads for coaling, was in collision with the Coast Guard cutter Manning in the lower Chesapeake Bay, resulting in a large hole being torn in the Justin's starboard side in No. 4 hold. In No. 5 hold, and in between-decks of No. 4 hold, was stored a large quantity of gasoline in cases, and before repairs could be made to the ship it became necessary to remove this inflammable portion of the cargo. Acting through a stevedoring company, arrangements were made, on the ship's account, with Dempsey & Sons for the hire of their two barges Katherine Dempsey and Experiment for the transfer and removal of the portion of the cargo mentioned, and the barges were thus used upon which to store the gasoline cases, and in lightering and holding the cased gasoline, and barreled oil, out of the steamship at Norfolk, Va.

The damage to the Justin permitted water to flow into No. 4 lower hold, and at one time it rose to a foot or a foot and a half in No. 4 between-decks, but above that point in No. 4 and No. 5 holds no water came into contact with the cases. The two barges were at the time of their engagement lying idle in the harbor at Norfolk. They were brought alongside and their holds examined by the ship's representative, for the purpose of ascertaining whether they were in a clean condition to take the gasoline. 16,666 cases were taken from No. 5 hold and transferred to the Dempsey, and the remainder from that hold and from No. 4 between-decks, aggregating 8,605 cases, was transferred to the Experiment. Having loaded the gasoline, the barges were towed to Hampton Roads and anchored, awaiting completion of repairs to the steamship, and on the 26th day of May the reloading began. When the hatches of the first barge were broken open for the purpose of reloading the steamship, it was discovered that a large number of the cases, aggregating 7,400 in all in both barges, which had been loaded in the barges, were in a wet and damaged condition, and all of these cases were rejected by the representative of the owner of the oil then present. Subsequently, upon the appearance of the representative of the underwriters, 5,200 of the 7,400 damaged cases were reconditioned and forwarded, leaving the remaining 2,200 cases unfit for shipment. These last cases were left in the barges and sold for approximately 50 per cent. of their value, occasioning a loss of $4,701.46. For the recovery of this amount the libel herein was filed against the barges and their owners.

The case was tried before a judge who had the advantage of an oral examination of the witnesses, upon issues joined, upon the pleadings, as to the barges' liability for the damages sued for. The court rendered its written opinion, holding that such liability existed, and that the loss was brought about because of the unseaworthiness of the barges and the failure of their owners and operators to perform the services undertaken by them within the spirit and meaning of the contract of hire. The court referred to a special master the question of the ascertainment of the amount of the damages. The special master, upon testimony submitted to him, concluded that the sum of $3,931.96 was the proper award, and his report as to the amount due was, after full consideration, approved by the court. It is from this decree that the present appeal is taken.

The merits of the appeal depend almost entirely upon the facts, as there are no legal questions of importance to be decided, having the facts definitely settled. The assignments of error mainly relate to whether the seaworthy condition of the barges was warranted. It is insisted by appellants that no warranty, express or implied, was made, that the evidence fails to sustain the commissioner's findings, respecting the amount...