Schoonmaker Conners Co., Inc. v. Lambert Transp. Co.

• Decision Date: 03 July 1920
• Docket Number: 206.
• Citation: 268 F. 102
• Parties: SCHOONMAKER CONNERS CO., Inc., v. LAMBERT TRANSP. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

268 F. 102

SCHOONMAKER CONNERS CO., Inc., v. LAMBERT TRANSP. CO. et al.

No. 206.

United States Court of Appeals, Second Circuit.

July 3, 1920

The libelant and respondent are corporations organized and existing under the laws of the state of New York and having their respective offices in the city of New York. On December 24, 1917, the libelant chartered to respondent its scow Kaaterskill No. 4, which at the time is alleged to have been tight staunch, and strong and in every respect seaworthy. The charter was to commence on December 25, 1917, and was to continue until the scow was returned to libelant in the towing limits of New York Harbor, at a place designated by libelant, in the same condition as when she entered upon the charter, less ordinary wear and tear. The rate to be paid by respondent for the use of the scow was $12 per day. The libel contains, among others, the following allegations:

'Seventh. That the said scow Kaaterskill No. 4 was a boat without motive power, and the charter of the said scow by the libelant to the respondent amounted in law to a demise of said scow to the respondent.

'Eighth. That the respondent failed and neglected to return the said boat to the libelant in the same condition as when she entered upon the said charter, less ordinary wear and tear, but loaded or caused and allowed the said vessel to be loaded with a cargo of caustic acid, which was a dangerous cargo, and a cargo likely to cause damage by eating away the structure of said scow, despite the protest of the libelant, made to the respondent at the time.

'Ninth. That thereafter, and on or about April 11, 1918, the respondent returned the said scow to the libelant in a damaged condition, owing to the loading and carrying of the said cargo, and failed and neglected to return the said boat in the same condition as when delivered to the respondent, less ordinary wear and tear.

'Tenth. That the said damage to said boat was not caused by ordinary wear and tear.

'Eleventh. That by reason of the premises, the libelant has been damaged in the making of the repairs, towing, survey fees, demurrage, etc., in approximately the sum of five thousand ($5,000.00) dollars.

The answer denied the allegations contained in all the above paragraphs, except the seventh, which it admitted.

The Lambert Transportation Company, Incorporated, having answered, then filed a petition, in which it declared that it had chartered the scow Kaaterskill No. 4 to the Acme Steamship Corporation, and that the latter had used the said scow and had loaded the same with a cargo of caustic acid, and had failed to cover the cargo, and failed to take the ordinary precautions in handling the acid, and in fact had used the scow for the purpose of lightering caustic acid in the face of the protests of the petitioner; and it further alleged that any damage done to the scow as alleged in the libel was caused, not by the petitioner, but by the fault, neglect, and carelessness of the Acme Steamship Corporation. It prayed that the latter might be cited to appear and answer on oath, and be held solely liable for any damage that had been caused to the Kaaterskill.

The Acme Steamship Corporation, being thus impleaded, filed an answer, in which it denied the various allegations contained in the libel, admitting, however, that the scow was a boat without motor power. The court below has entered a decree against the Acme Steamship Corporation and the Lambert Transportation Company, with process first against the Acme Steamship Corporation, and, if they should not respond, against the Lambert Transportation Company. The final decree, including interest and cost as taxed, is in the sum of $5,072.89.

Alexander S. Bacon, of New York City (Charles Podsenick, of New York City, of counsel), for respondent appellant.

Macklin, Brown, Purdy & Van Wyck, of New York City (William F. Purdy, of New York City, of counsel), for libelant appellee.

Edward Brown, of New York City, for respondent appellee.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

It appears, and indeed is conceded, that when the Kaaterskill was chartered to the Lambert Transportation Company, respondent herein, she was in good condition, and that when the boat was returned she was in bad condition. It was therefore incumbent upon the aforesaid respondent to show: (1) How the damage occurred; and (2) that it was not caused through its negligence, or through the negligence of any one to whom the respondent had intrusted the boat. White v. Upper Hudson Stone Co., 248 F. 893, 160 C.C.A. 651; Terry & Trench v. Merritt & Chapman Derrick & Wrecking Co., 168 F. 533, 93 C.C.A. 613.

That the libelant is entitled to a decree is admitted by the Lambert Transportation Company, Incorporated, the respondent. The real matter in issue, therefore, is as to the liability of the Acme Steamship Corporation, which is impleaded. It is admitted that, when the scow was returned to the libelant, she was not only not in the same condition she was in when she was taken over, but that she was indeed in a very bad condition. As the charter party contained a covenant wherein it was agreed that the scow was to be returned in like condition as on delivery, reasonable wear and tear excepted, the liability of the respondent is of course beyond any question.

The difficulty in the case arises over the relation of the Acme Steamship Corporation to the matter, and is due to the fact that, after the respondent took over the scow under its charter with the libelant, it in turn subchartered her to the Acme Steamship Corporation, and in doing so failed through carelessness to exact of the latter a covenant for the return of the boat in the same condition as she was in on delivery, reasonable wear and tear excepted. It is settled law that, where a charter party contains no covenant for the return of a vessel in good order and condition, there is no liability for injury to the vessel without proof of negligence. C. F. Harms Co. v. Upper Hudson Stone Co., 234 F. 859, 148 C.C.A. 457. The liability of a charterer depends upon the terms of the charter party, and if the injuries complained of are not within the terms of the charter party then liability will turn upon whether the damages are attributable to the charterer's negligence. Worrall v. Davis Coal & Coke Co., 122 F. 436, 58 C.C.A. 418; W. H. beard Dredging Co. v. Hughes (D.C.) 133 F. 680.

In determining the question of negligence it becomes necessary to examine into the facts as they are disclosed upon the record. When the boat was chartered to the Lambert Transportation Company she was, as we have said, in good condition; and the record discloses that she was in good condition when the Lambert Transportation Company subchartered her to the Acme Steamship Corporation. When she was returned by the latter, her decks had been eaten away and badly damaged. The court below found that the damage was caused by the negligence of the Acme Transportation Corporation in loading a cargo of caustic soda upon the boat and leaving the cargo uncovered in the rain and weather, so that the rain, by dissolving some of the cargo, which leaked from the drums in which it was contained, produced a chemical change upon the resinous material in the planking of the deck of the boat, causing the condition complained of. But this condition was not confined to the deck. The same character of injury which appeared on the deck appeared also on her sides and to a lesser extent on her bottom and along inside the skin of the barge. There had been placed on the deck 1,200 drums of caustic soda, and some of these drums had been there for a period of 50 days, exposed to the rain and snow.

There is a conflict in the testimony. The vice president of the Acme Company, who stated that he had been engaged in dealing in woods for 34 years, and who had owned, built, bought, and sold scows, and who saw the deck of the Kaaterskill before and after she was loaded with the caustic soda, and who was asked what the condition of the deck was after the caustic soda was removed, answered that he saw no change in its condition. The following are excerpts from his testimony:

'Q. Have you had any experience with caustic soda? A. Yes sir.

'Q. What was it? A. For the last four years I've been handling general cargo to Italy and French ports, but principally to Italian ports, and I've handled 15,000 drums approximately of caustic soda, probably as many as 20,000 drums.

'Q. What was the effect of the caustic soda on the ships, or on wood?

'Mr. Hull: I object to that. (Objection sustained.)

'Q. What did you actually see? A. I have handled it on the dock and on open barges. I have had it stored on the wooden dock for as long as 7 months at a time. The caustic soda would sometimes get out of the drums, by reason of the holes being in the drum-- hooks where the stevedores stick them in the side of the drum, and caused a little to come out-- and that would get on the wood. I had it for 7 months on Pier 63, North River, on the wood, and no hurt to it at all.

'Q. What was the wood on Pier 63? A. Pine.

'Q. What was the effect of the caustic soda on the wood of Pier 63? A. None.

'Q. Was that out, exposed to the air? A. Partly so, and partly not; most of it was uncovered.

'Mr. Hull: Then I ask that the answer be stricken out, because he said it was partly

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