Terry & Tench Co., Inc. v. Merritt & Chapman Derrick & Wrecking Co.

• Decision Date: 16 February 1909
• Docket Number: 182.
• Citation: 168 F. 533
• Parties: TERRY & TENCH CO., Inc., v. MERRITT & CHAPMAN DERRICK & WRECKING CO.
• Court: U.S. Court of Appeals — Second Circuit

168 F. 533

TERRY & TENCH CO., Inc., v. MERRITT & CHAPMAN DERRICK & WRECKING CO.

No. 182.

United States Court of Appeals, Second Circuit.

February 16, 1909

Marsh Winslow & Wever, for appellant.

Wing Putnam & Burlingham (Henry E. Mattison, of counsel), for appellee.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES Circuit Judge.

This was a libel in personam to recover damages for injuries sustained by a derrick belonging to the libelant while in the possession of the respondent as a charterer. The following is a summary of the undisputed facts.

In August, 1906, the libelant chartered its derrick to the respondent. About a week later she was found to be leaking and was returned to the libelant for repairs. She was sent to a dry dock and repaired, and was returned to the respondent on September 14th, and was used by it and it its exclusive possession until September 20th, when the accident occurred. On the afternoon of that day she was loaded with stone at Weehawken, N.J., and was made fast alongside the respondent's tug, which started across the Hudson river. When about two-thirds across the river the derrick listed to starboard, capsized, and sank. After hearing the evidence the District Judge said, in substance, that she was sunk without known cause, resorted to a presumption that she was unseaworthy, and dismissed the libel.

This case is similar to the recent case of Swenson v. Snare &amp Triest Co., 160 F. 459, 87 C.C.A. 443. In that case this court said:

'This was a libel in personam to recover damages for the loss of a pile driver which occurred in the East River in July, 1905. It is admitted that the pile driver was chartered by the respondent from the libelant, and that while in the exclusive possession of the respondent it sank and was lost. As such an occurrence is not in the ordinary course of things, the burden was thrown on the respondent, as a bailee, to show how the loss took place and that it was not caused by its negligence.'

These principles are applicable here. The vessel having been injured while in the exclusive possession of the respondent, as bailee, the burden is upon it to show:

(1) How the injury occurred.

(2) That it was free from negligence.

The respondent did show the circumstances of the accident, but offered no evidence to show the cause of the sinking of the vessel, and, to rebut the presumption against it, relied upon the presumption of unseaworthiness arising from the sinking of the vessel without apparent cause. The presumption of unseaworthiness generally arises in insurance cases, where a vessel is in the possession of the insured, and where means of knowledge concerning the condition of the vessel is are available to him, rather than to the insurer. But where a vessel is in the exclusive possession of a charterer, means of knowledge are as readily available to him as to the owner, and we perceive no especial reason why there should be any presumption in the matter. We deem it unnecessary to decide this question, however, as we are of the opinion that, if the presumption of unseaworthiness exists in the case, the libelant rebutted it by its proof concerning the condition of the vessel before and after the accident. In our opinion the respondent failed to sustain the burden of proof imposed upon it as a bailee in possession, and the decree was erroneous.

The decree of the District Court is reversed, with costs, and the case is remanded, with instructions to enter a decree in favor of the libelant, in the usual form, for its damages and costs.

NOTE.-- The following is the opinion of Adams, District Judge, in the court below:

ADAMS, District Judge. This action was brought by the Terry & Tench Company to recover from the Merritt & Chapman Derrick & Wrecking Company the damage caused to derrick No. 7 by her sinking.

The respondent denies that there is any ground of recovery and states that the derrick was unseaworthy. It alleges that after the cargo had been properly loaded and stowed No. 7 sprang a leak and leaked so badly as to show that she was unseaworthy. That was before this occurrence, however, and the respondent notified libellant of the defective condition of the vessel and she was accordingly returned by them as unsafe and unseaworthy; that the respondent was thereafter informed by libellant that the derrick had been caulked and otherwise repaired so as to render her safe and seaworthy and thereupon the respondent took the derrick back into its service on September 14, but that the repairs were deficient and that she was in an unseaworthy condition.

The respondent alleges that about the 18th day of September the derrick was engaged at the West Shore Railroad, Weehawken, to load a cargo of limestone, which was loaded with due care by the master-- the stone being placed one tier deep on deck with only a few blocks on top, the entire load weighing about three hundred gross tons; that thereafter the tug William E Chapman took No. 7 in tow and with the lighter fast to the steamer's starboard side proceeded towards New York; that the wind at the time was southeast; that there was a short choppy sea, light rain and flood tide; that the derrick No. 7 lay on an even keel, was properly manned and to all appearances in proper...