Dennis v. Roberts

• Decision Date: 09 May 1927
• Docket Number: No. 4986.,4986.
• Citation: 19 F.2d 1
• Parties: DENNIS v. ROBERTS.
• Court: U.S. Court of Appeals — Ninth Circuit

19 F.2d 1 (1927)

DENNIS v. ROBERTS.

No. 4986.

Circuit Court of Appeals, Ninth Circuit.

May 9, 1927.

William B. Acton, of San Francisco, Cal., and J. M. Inman and P. G. West, both of Sacramento, Cal., for appellant.

S. Hasket Derby and Derby, Single & Sharp, all of San Francisco, Cal., and Guard C. Darrah, of Stockton, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

In 1924, appellant, who was respondent below, being in need of facilities for transporting from one point to another on the Sacramento river sand to be used for highway construction, by letter dated March 18, 1924, addressed to one Ball, appellee's agent, offered to rent from the latter a scow and an oil-engine driven boat owned by appellee, upon certain specified terms. The proposal was promptly accepted, and both the boat and the scow at once went into appellant's service, and continued so to be used until April 27th, when the boat was destroyed by fire. The owner brought this suit in admiralty to recover for such loss, and from an interlocutory decree, declaring respondent's liability, the latter brings this appeal.

How the fire originated is not known with certainty. While the boat was engaged in an effort to dislodge the loaded scow from a sand bar upon which it was stuck, the larger of the two engines "quit." Under order from the captain, who was in the pilot house, his son went back to start it, but immediately returned with a cry of fire, and upon opening up the hatches it was found that "the whole bilge was on fire, underneath, down in the bottom on the water"; that is, oil floating upon the shallow water in the bilge had in some way become ignited. The most plausible theory is that a feed pipe from the oil tanks to the engine had broken, with the result that instead of being supplied to the engine, the oil wasted into the bilge, and, coming into contact with the highly heated exhaust pipe, was ignited.

The material part of the letter from appellant to Ball, which constitutes the contract, is as follows:

"Confirming our agreement by telephone, we agree to rent from you, and you agree to rent to us, for a period of two months, one new scow, 32-foot beam by 110 feet long, at $250 per month, time computed from the time the scow leaves Antioch until it is returned. Same to be returned in as good condition as when received, barring natural wear and tear. Also we agree to rent from you, and you agree to rent to us, the oil-engine driven boat Ruth, for a period of two months, at $10 per day and $6 per day for operator for the days he works, operator to board himself, we to furnish all necessary lubricating oil, fuel, greases, etc., for the operation of the said boat, and return the same in as good condition as when received, barring natural wear and tear. Time to be computed from the time the said boat leaves Antioch to the date it is returned."

In his libel the owner charges that at the time of her destruction the boat was in the possession, management, and control of appellant under this agreement, and that the fire was not caused by any act or fault on the part of the owner, or any act of God or the public enemy, but (as set forth in a separate count) by the reckless, unusual, and negligent use to which the appellant put the boat.

By the appellant it is conceded...