Opinion
No. 229.
April 8, 1929. Disposition Confirmed Without Opinion May 31, 1929.
Appeal from the District Court of the United States for the Western District of New York.
Libel by Emil Hansen, permanent receiver of the Syracuse Sand Company, Inc., against the E.I. Du Pont de Nemours Company to recover for loss of boats by fire. Decree for libelant [ 8 F.2d 552], and respondent appeals. Decree reversed, and libel dismissed.
See, also, 18 F.2d 782.
Appeal from a decree of the District Court for the Western District of New York upon a libel in personam in the admiralty, holding the respondent liable for the destruction by fire of a tug and two barges owned by the libelant.
The facts disclosed were as follows: The respondent was shipping a cargo of smokeless powder and cordite in a concrete barge en route from Wilmington, Del., to a point west of Buffalo. The barge sank in the Erie Barge Canal, near Rome, N.Y., and the respondent sent its agent, one Kavanaugh, who with the underwriter's agent was to salve it and set it again on its journey. The wetting did not injure it, or at least did not destroy its inflammability, but it was not explosive unless ignited. Needing some means of carriage, Kavanaugh inquired in the neighborhood and learned that the libelant had a flotilla of two wooden barges and a tug at Baldwinsville, near by, as to whose availability he inquired of one Cross, the libelant's president. After some negotiation, Cross and Kavanaugh agreed that the barges should be sent to the wreck to receive the cargo. On their arrival, Kavanaugh began to stow the powder into them and after five days laded them both.
There was much testimony as to the way in which this was done, and it was unquestioned that in the process some of the cases were injured and had to be recoopered. The cargo filled, not only the libelant's two barges, but a third, which Kavanaugh procured from another person and added to the flotilla. There was evidence that the cargo on the Alice F. Clark, one of the libelant's barges, was badly stowed, the boxes being broken and not sufficiently mended, the contents in some cases protruding from the cracks; the deck was strewn with pieces of cordite, which comes in heavy strings, some inches long; the hatches left open and the broken boxes exposed. By the time the stowage was finished, Kavanaugh had procured the use of the tug as well, and made a written agreement as to all three, prepared by the libelant and signed by him in the respondent's name. By this the respondent agreed to pay $75 a day and furnish all coal for the tug "for use of towing" the two barges, "which we also rent of you (the latter at the rate of $20 per day) from Rome, N.Y., to Buffalo, N.Y., and to continue until her return to Baldwinsville, N Y The rental on the boats * * * to apply from the time they are delivered to us at Rome, N.Y., until their return. * * * Further we assume all risks on cargo. If more than one boatman required, we to pay for same, extra." Only one bargee was in fact required, and he had been in charge of both barges from their delivery.
The tug arrived with a full crew and took the three boats in tow bound westward. On Sunday, June 25th, the flotilla lay at a place called Verona Beach, in a lake which was part of the canal. The barge Clark had been leaking badly from her delivery, and was still making water, so that the tug's master thought it unwise to cross the lake that day, and decided to lie over until the weather seemed more favorable. Meanwhile the bargee and several members of the tug's crew were trying to put in order a gasoline pump with which to keep her dry while crossing the lake, when, being in tow, the tug could not reach her to pump her out. They had already on Saturday tried to rig this engine without success, and on Sunday they nailed it to the top of a case of powder standing on the fore deck near the hatch coaming. According to their story, at this time the deck was still strewn with pieces of cordite, and the broken boxes stowed in the square of the hatch were uncovered and close by.
In their efforts to make the engine work, they primed it several times with gasoline, which ran down upon the top of the case to which the engine was nailed. The most probable version, and that which the judge accepted, was that the engine's back-fire set fire to the gasoline, which communicated with the powder, or perhaps directly ignited it. Nobody really knew just how the fire started, but somehow it did, and at once ignited the whole cargo of the Clark, communicated to the two other barges and destroyed both them and the tug. During the efforts to start the engine, Kavanaugh was on the tug a few feet away; the noise of the engine's exhaust was audible to him, and had gone on for some time before the fire started.
The judge found that the stowage of the barges had been faulty in the respects mentioned, and also that Kavanaugh had told the men who were starting the engine that it was safe to nail it to the case of powder. He also found that the libelant's servants were enough advised of the inflammability of the powder to be on guard, though Kavanaugh had not told them fully of its danger. Finally he found that the respondent held all the vessels upon a demise, and that it was responsible for their negligence, as well as for its own, in the bad stowage and general lack of protection. For these reasons he entered a decree for the libelant.
Bond, Schoeneck King, of Syracuse, N.Y. (William H. Button, of New York City, and Clarence R. King, of Syracuse, N.Y., of counsel), for appellant.
Hancock, Dorr, Spriggs Shove, of Syracuse, N.Y. (Henry S. Fraser, of Syracuse, N.Y., Bigham, Englar Jones, of New York City, and Edward L. O'Donnell, of Utica, N.Y., of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
We have no doubt that the boats were not delivered upon a demise, but upon a charter to carry the powder to Buffalo. It may indeed be true that the barges were demised when originally delivered with only one bargee in charge, and that this continued until the written contract was made, or perhaps thereafter until the tug took them in tow and began the voyage. As to that, however, we say nothing, for before the fire the rights of the parties had already been defined by the written contract, which we see no reason to interpret as changing the normal relations between owner and shipper. This is especially true as to the tug, whose hire was to be "for use of towing" the barges. Standing alone, we cannot see how there could so far be any doubt. To be sure the payments are spoken of as "rentals," just as the barges themselves were "rented," but equivalent words have often been held consistent with a charter. Morgan v. U.S., 14 Wall. 531, 20 L. Ed. 738; New Orleans-Belize Co. v. U.S., 239 U.S. 202, 36 S. Ct. 76, 60 L. Ed. 227. The libelant relies upon U.S. v. Shea, 152 U.S. 178, 14 S. Ct. 519, 38 L. Ed. 403, but the charter was there of an especial kind, not limited to the "use" of the boat (page 189 of 152 U.S. [14 S. Ct. 522]), and allowing the government to substitute other vessels at the owner's expense. It was for this reason held to be a "contract for vessels," from which the implication was drawn that the charterer was to have "management and control."
Concededly this is the determining circumstance, though it is not always easy to determine who really has that management and control. We start, however, with the general presumption that the owner does not mean to put his vessels into the possession of the charterer (Reed v. U.S., 11 Wall. 591, 601, 20 L. Ed. 220, Auten v. Bennett, 183 N.Y. 496, 501, 76 N.E. 609, 5 Ann. Cas. 620), and that the presence of his own crew on board is "very strong presumptive evidence" that he does not, which only "very cogent circumstances" will overthrow (per Story, J., in Certain Logs of Mahogany, Fed. Cas. No. 2559). Moreover, the charter was for a voyage; the boats were not delivered for the charterer's general purposes, as in U.S. v. Shea, supra, and The Charlotte (D.C.) 285 F. 84, affirmed 299 F. 595 (C.C.A. 2).
Viewed generally, there was therefore no reason, at least as to the tug, for saying that the ordinary relations imposed in such cases did not obtain here. Moreover, some of the language chosen by the libelant strongly corroborates this conclusion. There could have been no occasion for throwing upon the charterer all risks of the cargo if the instrument had been a demise. It is true that even then the seaworthiness of the vessels would still have been warranted, and that might give a possible justification for the clause, but it went further than this. The charterer assumed all risks without limitation, a provision certainly out of place in a demise. More might indeed be said for the libelant's position as respects the barges, and, as we have already said, perhaps their original delivery was on a demise; but when the tug was added, and the contract became one to carry the cargo to Buffalo, the relations became what they would have been, had this been the original agreement. Thereafter the flotilla was a single means of transportation, by which the respondent's property was to be taken from one place to another.
Nor do we attach any significance to the fact that the respondent hired another barge and added it to the flotilla. That may have been under its "management and control" (Hastorf v. Long [C.C.A.] 239 F. 852, and Dailey v. Carroll [C.C.A.] 248 F. 466), but the mere fact that it added a third barge to the tow did not change its relation to the other vessels. The rule that barges, when let with bargees, are demised, is confined to those which have no motive power of their own.
Any liability must therefore depend upon the conduct of Kavanaugh while in charge of the cargo. To show this the libelant relies upon the original stowage of the powder, Kavanaugh's inattention to the actions of the crew, and his positive assent to nailing the engine upon a case of powder. The evidence was in great dispute as to the first, but we cannot properly substitute our own conclusions for those of the learned trial judge, who saw nearly all the witnesses. We must assume that the cases were broken, that the cordite protruded, and that it lay about the deck. This was certainly a hazardous condition to create, for it subjected the flotilla to peril from any chance spark. However, it was a condition equally apparent to the crew as to Kavanaugh, and charged them with notice of the danger from the use of the engine, especially when primed as they primed it. The judge found that they were advised of the dangerous nature of the cargo and that they ignored it.
He also found that they did so because Kavanaugh had expressly consented to their nailing the engine upon the top of the case. Perkins, a bargee, so testified, and the judge says that Greene, the tug's engineer, did so also. But his testimony does not go quite so far. He swore that on the night before Kavanaugh had seen them operating the engine within 18 inches of the nearest case and had said it was safe; Kavanaugh swore that at this time the exhaust was directed outboard. We think it incredible that Kavanaugh should have consented to so mad an antic as nailing the engine on top of a case and priming it with gasoline. He was well acquainted with the inflammability of the powder, and while we are willing to believe that he was unduly slack in keeping an eye upon what went on, this presupposes, upon the word of the bargee alone, a deliberate sanction of what even the slightest attention would have recognized as to the last degree perilous. On the other hand, it is undisputed that he was on the tug at the time, and there was ample evidence that he could have heard the engine, and concluded that they were using it upon the deck of the barge.
Thus the case is one where the charterer has been negligent in stowing the cargo, and the owner's servants in what they did thereafter, and where their negligence was not excused by any assurance from the charterer that they might go on. At best, it is therefore one for divided damages; but before going even so far as that the libelant must establish the respondent's liability. A charterer is not ordinarily liable for stowage, this being the duty of the ship; but in this case it had undertaken that duty and had left the barge in an unsafe condition. That was an affirmative act, for the consequences of which the respondent would be liable. However, it was not responsible for all possible results of Kavanaugh's acts, though it is a vexed question whether the liability is limited to such as he could have foreseen, or to such as were their "natural" consequences. Smith v. Railroad, L.R. 6 C.P. 14, 21; Hill v. Winsor, 118 Mass. 251; Ehrgott v. Mayor, 96 N.Y. 264, 281, 48 Am. Rep. 622. We doubt, indeed, that the difference is in the end more than one of statement. However that may be, unless a later negligent act is at the outset to be anticipated (Atchison, etc., R.R. v. Calhoun, 213 U.S. 1, 29 S. Ct. 321, 53 L. Ed. 671), it ordinarily "breaks the causal chain," and the first tort-feasor is not liable (Cleary v. Port Reading R.R., 29 F.2d 495 (C.C.A. 2). Clearly Kavanaugh could not have anticipated that the libelant's servants would engage in such extravagant negligence.
A question might indeed arise, if he had seen what they were doing and had failed to intervene. We do not decide what duties his original act of negligence might in that case have imposed upon him; that which he originally could not have anticipated would then in fact have appeared about to take place. We may assume arguendo that he would have been obliged at least to give warning. But the judge did not find, and the evidence does not compel us to say, that he saw how the men were using the engine. Its mere noise did not advise him that they were handling it otherwise than as they had done before; some uses were harmless. He could be charged, if at all, only after more explicit notice than was proved; the probabilities are that he would not have remained inert, had he seen the danger to which they were exposing his cargo. To us it seems that the libelant brought the damage altogether upon itself, and that the party more really aggrieved is the respondent.
Decree reversed; libel dismissed.