The Transit

• Decision Date: 04 April 1918
• Docket Number: 2338.
• Citation: 250 F. 71
• Parties: THE TRANSIT.
• Court: U.S. Court of Appeals — Third Circuit

250 F. 71

THE TRANSIT.

No. 2338.

United States Court of Appeals, Third Circuit.

April 4, 1918

Meyer Eichman, of West Hoboken, N.J., and Foley & Martin, of New York City (William J. Martin and George V. A. McCloskey, both of New York City, of counsel), for appellant.

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

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge.

The steam lighter 'Transit' sank at her dock early on the morning of September 12, 1916. The charterer, as bailee of the cargo, filed this libel to recover damages for injury to the cargo. The District Court dismissed the libel. The libelant appealed.

The action was brought on the warranty of seaworthiness implied in the charter, Work v. Leathers, 97 U.S. 379, 24 L.Ed. 1012; the libelant alleging that the vessel was unseaworthy and that her unseaworthiness caused her to sink. The claimant admitted the warranty but denied liability upon the ground that the charter was a demise of the vessel, and that, in a charter of demise, the rule of caveat emptor applies and relieves the owner from the warranty as to defects in the vessel. The claimant defended also upon the ground that the vessel was not unseaworthy and that she did not sink because of unseaworthiness.

In sustaining its charge, the libelant relied upon the presumption of unseaworthiness and also upon evidence of unseaworthiness.

The area of this controversy may be narrowed by disposing briefly of two of its phases.

There is no substance in the claimant's defence that the charter was a demise, and, therefore, the owner was relieved of the warranty of seaworthiness by the rule of caveat emptor. Sanford & Brooks Co. v. Columbia Dredging Co (D.C.) 163 F. 362; Id., 177 F. 878, 101 C.C.A. 92. Manifestly, the charter was a demise, following a more or less thorough inspection by an agent of the charterer. Scanlan v. The Deck Scow Johnson Lighterage Co. Nos. 15 and 24, 248 F. 74, . . . C.C.A. . . . . But the rule of caveat emptor applies to a charter of demise (and to the discharge of the owner's implied warranty of seaworthiness) only as to defects in the vessel which are patent or which are discoverable after inspection or after an opportunity to inspect. The defects in this vessel, being in its rudder port sleeve and in the timbers concealed by it, as was afterward discovered, were hidden and were not discoverable upon the inspection that was made or upon such an inspection as reasonably should be made on entering into a thirty day charter, and, therefore, the rule of caveat emptor can not be invoked to the relief of the owner on his warranty of seaworthiness.

Nor do we think there is substance in the libelant's claim to recovery on the presumption of the vessel's unseaworthiness. Such a presumption necessarily arises and alone will sustain recovery in a case where a vessel sinks from an unknown cause under circumstances where she had been subjected to no external peril, and where nothing but her unseaworthiness can explain the accident. In other words, the presumption of unseaworthiness arises where the only inference in the circumstances is that of unseaworthiness. The Loyal, 204 F. 930, 123 C.C.A. 252; The Willie (D.C.) 134 F. 759; Sanbern v. Wright & Cobb Lighterage Co (D.C.) 171 F. 449; Id., 179 F. 1021, 102 C.C.A. 666; Oregon Round Lumber Co. v. Portland & Asiatic S.S. Co. (D.C.) 162 F. 912; Forbes v. Merchants' Exp. & Transp. Co. (D.C.) 111 F. 796; Id., 120 F. 1019, 56 C.C.A. 681. As the circumstances attending the sinking of the 'Transit' do not exclude all inferable causes except that of unseaworthiness, but, on the contrary, very plausibly suggest another cause, the presumption does not exist.

The case, therefore, presents the single question: What caused the vessel to sink?

The 'Transit' was a steam lighter of about 175 tons burden, built and rigged to carry miscellaneous cargo, and was engaged in lighterage service in New York Harbor under charter to the libelant. At about 5:30 o'clock on the evening of September 11, 1916, the vessel docked at Pier 29, North River, bow in, with her starboard side against the pier. She was heavily laden aft, her freeboard at the stern being only twenty to twenty-two inches, while at the bow it was from four to five feet. Her lines were such that when so loaded, and when resting on an even keel, her freeboard amidships was less than at the stern.

At about 6 o'clock the captain and crew went ashore, leaving the engineer in charge for the night.

If there was negligence in so loading and in so leaving the vessel, it was the negligence of the libelant's servants.

The vessel made water more or less at all times, taking in more when loaded than when light. She carried three siphons and one pump, but seldom had occasion to use more than one siphon. During the night in question, the engineer pumped her 'dry' three times (that is, he lowered the water beyond the reach of the siphon), pumping about one hour each time and concluded at the hours of 9 P.M., 12 M., and 3:30 A.M. respectively. He was awakened at about 4:30 A.M. by the water rushing into the hold from the starboard coal bunker deck opening. Upon going hastily on deck, he found that the...