Naylor & Co. v. Terminal Shipping Co.

• Decision Date: 16 November 1916
• Citation: 237 F. 725
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NAYLOR & CO. et al. v. TERMINAL SHIPPING CO. et al.

237 F. 725

NAYLOR & CO. et al. v. TERMINAL SHIPPING CO. et al.

United States District Court, D. Maryland.

November 16, 1916

Whitelock Deming & Kemp, of Baltimore, Md., for libelants.

George Forbes, of Baltimore, Md., for respondents Terminal Shipping Co., and London Gate S.S. Co.

Knapp Ulman & Tucker, of Baltimore, Md., for respondent Arundel Sand & Gravel Co.

ROSE District Judge.

The libelants are the owners of a cargo of pyrites, brought in by the steamship Kingsgate. It was to be delivered at the works of the Davidson Chemical Company, hereafter called the Chemical Company. To make such delivery lighters were required. The Chemical Company chartered scow No. 63 from the Arundel Sand & Gravel Company, referred to hereafter as the Sand Company. The last-named company furnished the lighter and nothing else. The Terminal Shipping Company, which will be styled the Terminal Company, was employed to discharge the cargo.

Somewhere between 6 and 6:30 on the morning of the 2d of February last the scow sank, carrying down with it more than 400 tons of ore. The latter became a total loss, although the scow was subsequently raised and repaired. There was nothing unusual about the weather conditions. The scow sank, either because it was improperly loaded, or because it was unseaworthy. A number of persons who were on the scow or the ship, and who were eyewitnesses of what happened, have testified. None of them say anything to suggest a lack of care or skill in the stevedoring. Most of them testified that the loading was well and properly done. It is true that those who so say are employes of the Terminal Company, and are in a sense interested witnesses. Nevertheless, there is no contradiction of their story, and it is confirmed by what two United States custom house officers say, and by certain undisputed facts.

That the scow was in trouble was known on the ship more than two hours before it sank. It was then said that she was leaking. The fact that there was such a rumor does not prove it true but it does show that the explanation now given by the eyewitnesses is not an afterthought. It also appears that the scow did not go down suddenly. The ship used its whistle for an hour or more in a vain attempt to summon assistance. Men went ashore and tried over the telephone to get in touch with a tug before the scow sank. The master of the steamship caused it to be moved from alongside the ship to the stern of it, so as to make sure when she sank she could not damage the ship. The assistant foreman of the stevedores swears that he noticed one corner of the scow going down in the water more rapidly than it should. He opened the hatch, and with his torch he made out that there was a good deal of water in the hold. He jumped down and found it two or three feet deep. He heard the water running in, and, going toward the sound, saw a stream coming in at a point some two or three feet below the deck. His description of what he saw indicates that a seam had opened. He went on deck, and started to lighten the scow by taking some of the ore back on the ship; but the workmen became fearful for their lives, and the captain of the steamship for the safety of his vessel. Some other witnesses corroborate some part or other of this story. It is possible it is not true, but there was nothing in the tale itself, or in the appearance or manner of the man who told it, to suggest its falsity. It is entirely consistent with everything else that happened that night. It is true it is established that the scow had been in constant use before the accident, and had then not leaked. Perhaps because she had given no trouble, no...