THE JAMAICA
| Decision Date | 15 August 1931 |
| Citation | 51 F.2d 858 |
| Parties | THE JAMAICA. NIAGARA FERRY & TRANSPORTATION CO., Inc., v. AMERICAN RADIATOR CO. et al. SALKELD et al. v. NIAGARA FERRY & TRANSPORTATION CO., Inc. AMERICAN RADIATOR CO. v. PERRY'S SAND YARD, Inc., et al. |
| Court | U.S. District Court — Western District of New York |
Dorr E. Warner, of Cleveland, Ohio, Forrest E. Single, of New York City, and Goulder, White & Garry, of Cleveland, Ohio (Thomas H. Garry, of Cleveland, Ohio, of counsel), for Victor Salkeld and others.
Stanley & Gidley, of Buffalo, N. Y. (Ray M. Stanley, of Buffalo, N. Y., of counsel), for the Jamaica and Niagara Ferry & Transportation Co., Inc.
Dorr E. Warner, of Cleveland, Ohio (Harry J. Kelly, of Buffalo, N. Y., of counsel), for Perry's Sand Yard, Inc.
Wilcox & Van Allen and Brown Ely & Richards, all of Buffalo, N. Y. (John B. Richards and Selby G. Smith, both of Buffalo, N. Y., of counsel), for American Radiator Co.
Love & Keating, of Buffalo, N. Y. (George P. Keating, of Buffalo, N. Y., of counsel), for Delbert O. Lockhart.
These cases arose out of the sinking of the steamer Jamaica at the Hertel avenue dock of the American Radiator Company on April 16, 1926. Approximately three hundred feet of the face of the dock had been leased by the American Radiator Company to the Perry's Sand Yard. There was a slip extending in from the dock which was not included in the lease to the sand company. In this slip the steamer George King was moored, and had been there for some time prior to April, 1926. The steamer King was owned by Victor Salkeld and Dorr E. Warner, the libelants herein. Warner was also the principal owner of the Perry's Sand Yard which had the lease to the dock. Neither he nor the Sand Yard had a lease to the slip in which the King was moored, and so far as the presence of the King in the slip is concerned, it may be said to have been there by sufferance, though apparently with the consent of the radiator company. Just prior to April 13, 1926, the Niagara Ferry & Transportation Company, Inc., the owner of the steamer Jamaica, applied to the American Radiator Company for dockage in the slip in question. The owners of the King did not want to move their ship at this time, and after a conference with the owners of the Jamaica it was agreed that the radiator company should lease dock space for the Jamaica on the dock front and the King could then remain in the slip until it was ready to be moved. The Jamaica was brought up to the dock on April 13, and moored so that some part of it extended a distance in front of the slip. While in that position on April 16, 1926, the Jamaica sank, and the entrance to the slip was then blocked so that the steamer King moored in the slip could not get out. The Niagara Ferry & Transportation Company, owner of the Jamaica, took steps to have her raised, but she was not actually raised and moved from her position in front of the slip until June 16, 1926, two months after her sinking.
The libelants, Victor Salkeld and Dorr E. Warner, in the first libel brought an action in rem against the steamer Jamaica. They later filed a second libel against the Niagara Ferry & Transportation Company, Inc., the owner of the Jamaica in personam. The Niagara Ferry & Transportation Company, Inc., appeared as claimants and filed an answer. It further filed petitions in both cases bringing in Delbert O. Lockhart on the ground that he was an independent contractor for raising the Jamaica; the American Radiator Company on the ground that it had provided unsafe wharfage; the Perry's Sand Yard, Inc., upon the ground that it had aided in the creation of a hidden obstruction along the dock; and the steamer George King on the same ground that the Perry's Sand Yard was brought in.
Upon the trial no attempt was made to prove unsafe wharfage against the American Radiator Company or negligent creation of hidden obstructions along the face of the dock by the Perry's Sand Yard or the steamer George King. The cross-libels are therefore dismissed. Further, the libel in the action in rem will be dismissed and the merits disposed of in the action in personam.
I will first pass upon the question of whether the owner of the Jamaica promptly commenced and diligently prosecuted the raising and removal of the vessel. From a careful examination of the testimony, I conclude that the vessel's owner did promptly enter into a contract with a presumably responsible salvor for the raising of the vessel. The testimony offered by the libelants has not convinced me that the work was not properly performed or diligently prosecuted. My conclusion is that the owner of the Jamaica was not in any particular at fault in the raising of the vessel.
The next question is: Did the Jamaica sink through the negligence of its owner? It was found on the morning of April 16, after the vessel had been moored to the dock for three days during which time the water and weather conditions were not unusual, that it was sinking rapidly. Siphons promptly put into the ship had little effect and she sank to the bottom in a short time. There was no testimony introduced at the trial on the question of the unseaworthiness of the Jamaica, and there was no testimony introduced by the respondents to rebut the presumption of unseaworthiness. The unexplained sinking of a vessel in her berth raises a presumption of unseaworthiness. Dupont de Nemours v. Vance, 19 How. (60 U. S.) 162, 15 L. Ed. 584. Unseaworthiness is a breach of warranty to those with whom the vessel's owner enters into some contractual relation. In the case before us there was no contractual relation between the owner of the Jamaica and the libelants. If there is any liability or fault upon which the libelants can rely, it must be that the Jamaica sank by reason of the negligence of its owner. She sank unexpectedly from an unexplained cause, and following the reasoning of Judge Hough in The Kathryn B. Guinan which is set forth in the report of that case in the Circuit Court of Appeals of this Circuit in 176 F. 301, 303, this raises a presumption of negligence. Judge Hough says:
In the Guinan Case the court found that the presumption was rebutted. In the instant case no testimony was...
To continue reading
Request your trial
-
Getty Refining and Marketing Co. v. MT Fadi B, 84-1567
...canal--intentional conduct involved, court did not discuss economic damages). In The Jamaica, 51 F.2d 857 (W.D.N.Y.1926), on reh'g, 51 F.2d 858 (W.D.N.Y.1931), although the court allowed recovery by the owner of a steamer that was negligently blocked from exiting its slip, this case did not......
- Bryan v. Warden, Indiana State Reformatory
-
Bethlehem Steel Corp., Matter of, s. 78-3137
...... E. g., Sinclair Refining Co. v. Smith, 13 F.2d 68 (5th Cir. 1926) (recovery for direct interference with riparian rights). In The Jamaica, 51 F.2d 858 (W.D.N.Y.1931), the issue in the present case was not discussed and apparently was not raised. Two relatively recent district court decisions do directly support the claimants. Both In Re China Union Lines, Ltd., 285 F.Supp. 426 (S.D.Tex.1967), and In Re Lyra Shipping Co., 360 ......
-
Tracy Towing Line v. City of Jersey City
......Wood, D.C.S.D. N.Y.1890, 44 F. 94. At this point the status of the tug becomes important. The sinking of a vessel at its berth, which sinking is unexplained and unexpected, gives rise to presumptions of unseaworthiness and negligence. 105 F. Supp. 913 See The Jamaica, D.C.W.D.N.Y. 1931, 51 F.2d 858. Both of these presumptions are rebuttable. See The Jamaica, same. The presumption of unseaworthiness has been rebutted by uncontradicted evidence, but the presumption of negligence, considered in the light of the watchman and his actions, presents a more serious ......