Virgin Islands Corp. v. Merwin Lighterage Co.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: GOODRICH, KALODNER and HASTIE, Circuit
• Citation: Virgin Islands Corp. v. Merwin Lighterage Co., 251 F.2d 872 (3rd Cir. 1958)
• Decision Date: 07 February 1958
• Docket Number: No. 12305.,12305.
• Parties: VIRGIN ISLANDS CORPORATION, Appellant, v. The MERWIN LIGHTERAGE COMPANY, Appellee.

251 F.2d 872 (1958)

VIRGIN ISLANDS CORPORATION, Appellant, v. The MERWIN LIGHTERAGE COMPANY, Appellee.

No. 12305.

United States Court of Appeals Third Circuit.

Argued December 20, 1957.

Decided February 7, 1958.

Warren H. Young, Christiansted, St. Croix, Virgin Islands, for appellant.

John D. Merwin, Frederiksted, St. Croix, Virgin Islands, for appellee.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

We have here a dispute concerning legal responsibility for damage to cargo in the course of lighterage from ship to shore at the Port of Frederiksted in the Virgin Islands of the United States. This appeal has been taken by the libellant Virgin Islands Corporation, which was the owner and consignee of the cargo. It sued The Merwin Lighterage Company, a private carrier which had custody of the cargo at the time it was damaged. The cargo was machinery, a disassembled generator, packed in some 28 crates and boxes.

At the Port of Frederiksted there is no harbor or protected anchorage. For a Frederiksted call, an ocean going vessel anchors in an open roadstead a quarter mile or more from shore. There cargo is transferred to lighters which carry it to be landed at a small wharf which extends out a short distance from the margin of the strand. The open roadstead and the wharf itself are entirely exposed to the action of wind and wave.

On the August day in question a ship was anchored in the Frederiksted roadstead completing the discharge of cargo for that port. Respondent's lighters were accomplishing the ship to shore transfer. Late in the morning a shifting wind, attended by rain squalls and increasing seas, hampered the unloading and landing to the extent that operations were suspended. Somewhat later this work was resumed and by midafternoon the last of the Frederiksted cargo had been transferred from the ship to two lighters designated as the "plywood barge" and the "B-2". There is uncontradicted evidence that the "B-2" was the last loaded.

By the time the loading of the last of the cargo upon these two lighters had been completed, the action of waves beating and breaking in toward the shore had again made the use of the wharf difficult. In the circumstances, it was decided to take the two loaded barges to their moorings, a short distance off shore, and to leave them there overnight with a view to landing the cargo in more favorable weather the next day. However, during the night the weather became worse. No harm came to the "plywood barge" or its cargo. But libellant's crates of machinery were cast from the deck of the "B-2" into the sea. Although this cargo was later salvaged it had suffered great damage for which this suit has been brought.

The libellant asserts that the loss in suit was caused by the negligence of the respondent bailee. The defense is that the loss of the cargo overboard was an "inevitable accident" caused by "an extreme and sudden storm and unprecedented high seas which could not reasonably have been anticipated". After full hearing the district court found that the loss had resulted from "inevitable accident" and entered a decree exonerating the respondent.

We are unable to sustain this judgment. In our view the undisputed facts, evaluated in the light of correct legal principles, compel a finding that the respondent did not exercise due care for the protection of libellant's property.

We accept the district court's finding that the storm which developed during the night was more severe than could reasonably have been foreseen. But the fact that unusually severe weather has been a factor in causing cargo damage is not enough to establish the defense of "inevitable accident" resulting from a "peril of the sea". It must also be shown that weather conditions were more than a staunch and adequately equipped vessel, with its cargo properly secured, could have withstood. Eastern Gas & Fuel Associates v. Martin Marine Transp. Co., 3 Cir., 1951, 190 F.2d 394, 396-397; The Plow City, 3 Cir., 1941, 122 F.2d 816, 818, certiorari denied Plow City S. S. Co. v. Texas Gulf Sulphur Co., 315 U.S. 798, 62 S.Ct. 579, 86 L.Ed. 1199; Norris Grain Co. v. Great Lakes Transit Corp., 7 Cir., 1934, 70 F.2d 32, certiorari denied 293 U.S. 565, 55 S.Ct. 75, 79 L.Ed. 664.

The facts already stated and additional undisputed facts make it clear that failure of the respondent to secure the cargo on the "B-2" was a substantial factor in this mishap. Topside, the "B-2" had a flat deck with no railing or other structure to restrict the lateral movement of objects placed upon the deck. There were, however, ring bolts, cleats, fasteners and rope, constituting appurtenances and gear suitable for lashing down deck cargo. However, the district court explicitly found that on this...