Penn Builders & Supply Co. v. Braeburn Steel Co.
| Decision Date | 13 August 1921 |
| Docket Number | 2659. |
| Citation | 274 F. 794 |
| Parties | PENN BUILDERS & SUPPLY CO. v. BRAEBURN STEEL CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Lowrie C. Barton, of Pittsburgh, Pa., for appellant.
W. L G. Gibson, John G. Frazer, and Reed, Smith, Shaw & Beal, all of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
On December 2, 1919, libelant entered into a charter party with respondent, whereby it demised for an indefinite term one derrick boat and two flats. The flats were to be loaded with coal at respondent's chute on the west side of the Allegheny river and towed to its plant on the east side by the libelant. The respondent was to pay $50 per day for the derrick boat, $10 each per day for the flats, and $7 for towing the flats across the river. The loading of the flats on the west side of the river was to be done by the respondents, and the towing and unloading by libelant. The libelant, according to a verbal agreement, was to furnish an engineer and fireman to operate the derrick boat. After being unloaded at the plant, the flats were towed back by libelant to the tipple or chute. On December 6, 1919 one of the flats, after four loads had been taken across the river in it, and it had been returned to the tipple for another load, sank while being loaded.
The libelant alleged in its libel:
That the 'vessels when delivered to respondent were in good order and condition and seaworthy in every particular,' and that the respondent 'so negligently, carelessly, and improperly loaded the said flat, by placing coal it was loading in the center of the flat, instead of distributing it over the flat, as is the proper and correct manner of loading, the flat collapsed in the center, thereby causing the ends to raise up, and wrecking and damaging the same causing the same to fill with water and sink.'
The respondent denied these allegations and averred:
That the 'flat sank by reason of leaks therein, which existed prior to the time the said flat was brought to respondent's plant, and by reason of the failure of the employees of the libellant to take proper care of said flat or pump the water out of same, in order to prevent said flat from sinking when its condition was called to their attention.'
The issue, therefore, between the parties was: To what was the sinking of the flat due-- negligence in loading, or unseaworthiness of the flat when chartered? The learned trial judge found that the sinking was due to unseaworthiness and the neglect 'of libelant, whose duty, under the circumstances, was to put and keep it in condition fit for its intended use. ' The libelant admits that if the 'flat sank by reason of unseaworthiness at time of delivery to respondent it cannot recover. ' If, however, the flat sank because of the negligence of the respondent in loading, the libelant may recover, and the judgment of the District Court should be reversed.
The testimony here and there was conflicting, but it supports the following conclusions of fact: The flat was old and leaked. The first load of coal was distributed evenly...
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THE IRVING
...Sunset Lighterage Co., supra, 43 F.(2d) 700, at page 702; The Cullen No. 32, supra, 62 F.(2d) 68, at page 70; Penn Builders & Supply Co. v. Braeburn Steel Co. (C. C.A.) 274 F. 794; The Emergency, supra; The Cary Brick Co., The Irving was not loaded beyond what the owner considered her capac......
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THE CARY BRICK CO. NO. 8
...caused her to leak. Inability to withstand the ordinary strains of loading or discharge is unseaworthiness. Penn Builders & Supply Co. v. Braeburn Steel Co. (C. C. A.) 274 F. 794. Her cargo capacity was 1,000 tons, and she had on board about 514 tons, and the amount of cargo discharged was ......