Opinion
No. 110, Docket 21157.
December 30, 1948.
Appeal from the United States District Court for the Southern District of New York.
Libel by O'Brien Bros., Inc., as owner of the Scow "Carbon Light," against United States of America which interpleaded Turner Blanchard, Inc. From the decree rendered, 66 F. Supp. 292, Turner Blanchard, Inc., appeals.
Decree affirmed.
Before L. HAND, Chief Judge, and CHASE and FRANK, Circuit Judges.
Foley Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for libellant-appellee.
John F.X. McGohey, of New York City (Max Taylor, of New York City, of counsel), for respondent-appellee.
Macklin, Brown, Lenahan Speer, of New York City (Gerald J. McKernan and Martin J. McHugh, both of New York City, of counsel), for respondent-impleaded-appellant.
The opinion below is reported in 66 F. Supp. 292.
On March 1, 1944, the United States made an oral agreement with the appellee O'Brien Bros. Inc., for the charter to the United States of the scow Carbon Light. The United States agreed to accept the scow without a captain, and to be responsible for tending the scow while it was loaded with dry sand ballast. The following day, appellant, Turner Blanchard, Inc., which had been hired by the United States to load the scow, commenced transferring sand from a steamship to the deck of the Carbon Light. During the course of the day and the evening, four piles of sand, weighing a total of about 160 tons, were deposited on the scow's deck, across the center line — one pile was in the stern, one amidships, one in the bow, and a fourth about midway between the stern and midship pile. About midnight, the stevedores left the scow for their meal hour. While they were absent, the Carbon Light overturned, dumping her cargo and suffering damage.
There was no direct evidence of the cause of the capsizing; evidence was introduced to sustain one of several different theories. The trial judge found that when the stevedores left for their meals, the scow was deeper at the stern than the bow because of the placing of the sand piles. The scow had not been pumped during the loading, and ordinary leakage accumulating during the day ran to the stern. When the water in the stern rose higher than the keelsons, it was free to flow from side to side, and create a list which would in turn cause the cargo to slide and the scow to capsize.
On these findings, the trial court held the appellant, Turner Blanchard, Inc., primarily liable and the United States secondarily liable to the libellant-appellee.
The appellants attack the findings that the scow was seaworthy and that the scow overturned because leakage had accumulated during the loading to a level higher than the keelsons at the stern.
On the question of seaworthiness, the trial judge relied upon the testimony of the expert who indicated that the scow was seaworthy. We must accept this finding. Similarly, we must accept his finding, based on sufficient testimony, that the overturning was caused by the collection of water in the stern until the water-level was higher than the keelsons.
The fact that she was seaworthy does not mean that the scow could be expected not to leak. The trial court found, from the uncontradicted testimony of appellee's expert, that all wooden vessels leak, and that the leakage increases when the vessel is loaded. Appellant, experienced in handling scows, was chargeable with notice of some leakage; it was also chargeable with notice that the water running aft might easily rise above the keelsons, where it would be free to run from side to side, causing the scow to list and cargo to shift. Nevertheless, appellant failed to check for leakage or man the pumps.
As there was no captain aboard the scow, appellant had control of the scow and responsibility for its safety. "Upon seeing that the scow had no bargee on board, the dredging company was put to its choice: either to refuse to load her at all, unattended as she was, or to give her such attention as a competent bargee would have given." F.E. Grauwiller Transportation Company v. Exner Sand Gravel Corporation, 2 Cir., 162 F.2d 90, 91.
Affirmed.