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Cleary Bros. No. 61 v. Cleary Bros. Inc.

September 28, 1932

THE CLEARY BROS. NO. 61; PUBLIC SERVICE ELECTRIC & GAS CO.
v.
CLEARY BROS., INC., ET AL.



Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.

Author: Davis

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

Cleary Bros., Inc., filed a libel against the Wayne Transportation Company to recover for damages done to its scow, Cleary Bros. No. 61, while chartered by the respondent, which impleaded the Public Service Electric & Gas Company, hereinafter called the Public Service Company, alleging that it, by negligently failing to furnish the scow a suitable berth, caused the damage, which it aggravated by improperly unloading the cargo of the scow. The Public Service Company denied the allegations of the respondent's petition. The case was tried to the District Court, which held that the injuries to the scow were caused by its grounding as a result of the failure of the Public Service Company to furnish the scow a safe berth. The court entered an interlocutory decree holding the Public Service Company primarily, and the respondent secondarily, liable for the damage to the scow, and referred the matter to a master to ascertain the amount of the damages. The master reported the sum due the libelant, and the final decree was entered accordingly. The Public Service Company appealed to this court.

In July, August, September, and October, 1927, the scow Cleary Bros. No. 61, under charter to the Wayne Transportation Company, was used in carrying coal for the appellant, the Public Service Company, to its stations on the Passaic river, at Essex and Kearny, N.J.

The respondent contends that the scow, when lying, fully loaded, at the Essex station dock, grounded amidships on a falling tide on a bank of hard and uneven material alongside the dock, and that, as a consequence thereof, its bow and stern were unsupported, which caused the laden scow to give way, thus splitting three of its center crossbeams and throwing its contour six or eight inches out of line. The respondent further contends that the damage was aggravated at some later time by the operations of an inexperienced employee of the appellant in discharging the cargo of the scow. All this the appellant denies, and says that the respondent has failed to establish its contention by a fair preponderance of the evidence.

The libelant proved the charter party, the delivery of the scow in good condition, its return in a damaged condition, and rested.

The respondent's case is largely built upon the testimony of the captain of the scow. He testified as follows:

"A. The boat came up the river was set in under the digger and set on a lump when they were doing the dredging there.

"Q. When was this? A. Some time in August or the last of July. I have not got the dates of it.

"Q. Was she unloaded? A. No, sir; she was fully loaded.

"Q. When she came up? A. Yes, and she was not lightened up.

"Q. Did she ground? A. Yes.

"Q. What were the conditions attending this ...


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