Oregon Round Lumber Co. v. Portland & Asiatic S. S. Co.

• Decision Date: 25 May 1908
• Docket Number: 4,893.
• Citation: 162 F. 912
• Parties: OREGON ROUND LUMBER CO. v. PORTLAND & ASIATIC S.S. CO. et al.
• Court: U.S. District Court — District of Oregon

162 F. 912

OREGON ROUND LUMBER CO. v. PORTLAND & ASIATIC S.S. CO. et al.

No. 4,893.

United States District Court, D. Oregon.

May 25, 1908

This is a libel and petition in behalf of the Oregon Round Lumber Company for the ascertainment of liability, and, if any be adjudged against it, then for a limitation thereof, as it respects the sinking of the barge Monarch, whereby certain coal, the property of the respondent Portland & Asiatic Steamship Company, was lost, and one Otto Pannier was drowned. The petitioner was the owner of the barge, and on December 23d leased it to the respondent Portland & Asiatic Steamship Company, to be employed in carrying coal from the bunkers or docks of the respondent Oregon Railroad &amp Navigation Company in Albina to and alongside of the steamship Arabia, which was lying at the Montgomery dock with a view to coaling the ship. A bargemaster was furnished with the barge, and subsequently the libelant employed Pannier to operate a hand pump to assist with the discharge of water from her hold. It is averred, in effect, that the barge was sound, staunch, and in all respects seaworthy for the purposes for which she was to be employed, but that she sank by reason of the lessee's negligence and carelessness in loading her with coal, so that she was not equally and evenly loaded, causing her to heel and list, thus producing an unusual and unnecessary strain upon her timbers and forcing her seams and butts to open and leak, and in unloading her in such a way that all the coal was taken from one end, instead of by distribution evenly about her deck, so that one end and side of the barge was forced under water causing her to turn over and sink, which resulted in the loss of the coal aboard and the death of Pannier. The barge being appraised, her value was fixed at $250. The respondent Portland & Asiatic Company claims damages for loss of the coal aboard, and the respondent the administrator of the estate of Pannier claims damages for the death of decedent.

Williams Wood & Linthicum and Hogue & Wilbur, for petitioner.

Snow & McCamant, for respondent Portland & Asiatic S.S. Co.

A. C. Spencer, for respondent Oregon R. & N. Co.

H. H. Riddell and E. B. Dufur, for respondent administrator.

WOLVERTON District Judge (after stating the facts as above).

Preliminary to an examination of the cause upon its merits, the question has again been presented as to whether Pannier, being engaged in a maritime service, was subject to the rule relating to the assumption of risk incident to his employment. I held, on a previous hearing on exceptions to the libel, that a seaman, in his employment as such, was not subject to the rule, and this under the authority of Lafourche Packet Co. v. Henderson, 94 F. 871, 36 C.C.A. 519. From a further consideration, on reargument of the principle, I am convinced that the doctrine of that case, while sound, does not apply to the one in hand, and that the ordinary rule should obtain here. In the Packet Company Case a sailor entered into contract or articles to ship as a seaman, and while engaged in that service was injured. It was held that as to him the rule of assumption of risk did not apply, because he was not at liberty to refuse the work, and could have been arrested and returned to the ship, had he deserted and declined to do the bidding of the master; so that there was presented a technical case of a seaman shipping under contract as a sailor. The case here is quite different. Pannier was simply employed as a hand to go aboard of the barge, and was under no articles to embark as a sailor or seaman. He was not bound to remain in the employ of his employer a minute after the conditions became apparent to him, if he had not so desired. His was the position practically of a longshoreman engaged in duty aboard the ship while in port, and his relations to his employer must be subordinated to the rules governing in such cases. Many cases attest his assumption of the risk of his employment in such a relation. I will allude briefly to some of them. In the Maharajah (D.C.) 40 F. 784, the workman was a longshoreman, engaged to work at a winch on board ship while in discharge of her cargo, and was injured. It was held that he assumed the risk of the dangers attending his employment. This case was affirmed on appeal to the Circuit Court of Appeals. 49 F. 111, 1 C.C.A. 181. In The Serapis, 51 F. 91, 2 C.C.A. 102, the workman was a stevedore. The circumstances attending the injury were very similar to those in the case of The Maharajah, and the holding was the same. So in The Luckenbach (D.C.) 53 F. 662, which was the case of a fireman employed on a tug, the rule was applied. Pannier's duty does not distinguish his employment from the employment of the several parties involved in these cases, and there is no reason for the application of a different rule as to him. The question, therefore, whether Pannier did in reality assume the risk of the mishap resulting in his death is resolved into one of fact, which will be considered later.

The primary inquiry must necessarily be whether the petitioner has incurred any liability, and, if it has, then whether it is entitled to a limitation thereof. It is pertinent, therefore, to ascertain whose acts were the conducing cause of the capsizing or sinking of the barge. To relieve the record of confusion, it should be stated that it is alleged by the libel that the respondents the Portland & Asiatic Company and Oregon Railroad & Navigation Company were lessees of the barge; whereas the Portland & Asiatic Company was the only lessee, while the coal was obtained from the Oregon Railroad & Navigation Company, and the towing was done by the Henderson, a boat owned by neither. Under the pleadings, the first issue is, was the barge seaworthy when leased? And the second, whether the lessee handled and navigated the barge in such a way as to cause her to capsize.

The barge was of the model pattern, 170 feet in length, 38 feet beam, and about 8 feet depth of hold, and was constructed in 1877. There is but little testimony as to the manner of her use until after she was in a measure reconstructed in the year 1900. J. A. Johnson purchased her in May of that year from George W. Weidler, at a consideration of $500, and took her to Lewis river for repairs. The repairing was done while she was in the water, and without docking, beaching, or putting her on the ways. Her deckhouse was torn away, and her deck lowered a foot; entire new beams and decking being supplied. One keelson was put in anew, and the others repaired. A new king-post was supplied, so with the bulkhead, and a system of cross-bracing carried through her frame for reinforcement and to render her more stable and durable. In connection with the deck and beams, new posts, braces, and tendons were put in. Two or three pieces of the planking were taken from the hull and new ones substituted, and the barge was recalked where needed. Large quantities of salt were found in her salt boxes, which were in good condition, and about two tons more of salt were added. The work was commenced in May and continued to the following December, and, when completed, her owner and the workmen considered that she was in good A 1 condition. Being thus repaired, she was used about two years for transporting wood, ties, and other lumber, carrying upon her decks from 400 to 600 and 700 tons, and even more, at a time. It is related that a load of 450,000 feet of green lumber was left lying upon her deck for nearly three months at one time without removal. Capt. Hosford, with Gerspach, became interested in the barge later, and in November, 1902, she was again repaired; this time by taking out the transom, shortening the planking by six inches or more, because the ends were found to be decayed more or less, and putting in the transom anew. Planking to the extent of about 100 feet was removed and replaced upon the hull, and the vessel recalked, consuming about nine bales of oakum, all at a cost of $613. Hosford and Gerspach sold to the libelant a part interest in the barge in the fall of 1902, and the remainder in the spring of 1903, at which time they (Hosford and Gerspach) affirm she was in good condition. During the time that Hosford and Gerspach owned her, they used her for transporting ties, and carried near 800 tons upon her at one time. They say that 700 tons was about her carrying capacity.

D. C. O'Reilly, manager of the lumber company, testifies that at the time his company finally purchased the barge she was in good condition; and such is the opinion of his brother, R. J. A. O'Reilly, also interested in the libelant company and the superintendent thereof. The purchase price paid by the lumber company was $2,700. During the company's use of her, it loaded her with ties out of Lewis river, in weight running from 700 to 800 tons. The company made no repairs in any way, except to furnish a new steam boiler and siphon, a few days before she was leased to the Portland & Asiatic; the barge being supplied also with a hand PUMP. D. C. O'Reilly testifies that he had been in the barge several times, and that at the time she was leased to the Portland & Asiatic she was in good, seaworthy condition; also, on cross-examination, as follows:

'Q. When did you last inspect the barge? A. About three or four days before the Oregon Railroad & Navigation Company took her. Q. That is, this last time? A. Yes. Q. You went through her? A. Yes; I went into her hold. Q. Whereabouts was it? Where was she when you inspected her then? A. Laying at our moorings. Q. At your dock? A. Yes. Q. What was the occasion? What was the purpose of your inspection? A. Well, when I go down on the barges, I generally go into all of them-- see what shape they are in. It is a

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