Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before BUFFINGTON, WOOLLEY, and THOMPSON, Circuit Judges.
Receivers of Iron City Sand & Gravel Company and sundry persons and corporations filed in the District Court of the United States for the Western District of Pennsylvania a libel in personam against the Jones & Laughlin Steel Corporation seeking dmaages for injuries to their marine properties occasioned by the alleged negligence of the respondent in handling a barge and allowing her to break away and drift downstream. The respondent by answer denied liability and by petition prayed that, if liable, its liability be limited to the barge and her pending frieght. From an interlocutory decree holding it at fault and denying limitation of liability, the respondent steel corporation appealed.
The story of the case as told by the undisputed facts is briefly as follows:
The respondent purchased coal from the Vesta Coal Company under a contract which called for delivery in barges at its South Side plant on the Monongahela river in the city of Pittsburgh. The coal company loaded its barges with coal at its mines upstream, caused them to be towed in flotillas downstream by a river steamer, made deliveries by leaving barges singly or in groups with the respondent's fleet at its plant, there to be manned, supplied with lines, moved and unloaded by the respondent how and when it chose.
On March 11, 1933, the coal company's steamer placed Barge 608, laden with coal, in the respondent's fleet of barges at its South Side plant. In consequence of heavy rains in the region upstream, the Monongahela river had on that day (as shown by river gauges read at eight o'clock in the morning) begun to rise at Pittsburgh. It was about four feet above normal. Readings at the same time on March 12 showed a recission of about a foot and on March 13 of a few inches. Early in the morning of March 13, a heavy rain, amounting almost to a cloudburst in the upper reaches of the river, set in and continued most of the day, so that on the morning of March 14 the river gauges at Pittsburgh showed 20.01 feet, a rise of 6 feet during the preceding twenty-four hours. On that day there was a further rise of 3.3 feet. During the thirteenth and fourteenth the rise of water up the river, with which rivermen at Pittsburgh keep themselves posted, was even more marked.
The barge in question was a steel craft, square-ended, without a deck, 208 feet in length, 26 feet beam and 9 feet in depth, laden with nine hundred tons of coal. In the afternoon of March 13 she was warped out of her position in the fleet, and placed in a slip beneath a coal hoist (astride the slip) for the purpose of unloading. The slip is a waterway in the river, a little wider than the beam of the barge, made between work-barges lashed to piers supporting one end of the coal hoist ashore and a work-barge and a flat-barge made fast to a pier supporting the other end of the coal hoist in the stream. As only about seventy-five tons of coal had been removed that afternoon, the barge was left in the slip over-night. On the morning of the fourteenth, however, the men in charge of the fleet, observing the greatly increased rise in the river, set about to make everything fast. They ran lines from the abutments and across the barges tying them together. Finally they had everything secure. The barge in question was still in the slip. No more of her cargo had been hoisted.
On returning from lunch shortly after noon, the respondent's men at the landing observed that a gorge, comprising an accumulation of river drift, logs, trees, posts and brush, had formed in the slip against the upstream end of the barge, that it had "jammed solid," and had reached such proportions both as to solidity and area that it was deemed necessary for the protection of the rest of the fleet to afford it an outlet by moving the barge from the slip, "digging out the drift", and letting the current carry it away. It was, however, not until about three o'clock that the work of shifting the barge was actually begun. By means of cables on the shore barges, operated by electric winches, the barge in question was pulled downstream away from the gorge about 50 feet, which was as far as the length of the cables would permit. The gorge held fast.The cables were then cast off and three hemp lines from the work-barge and flat-barge on the opposite side were made fast to her, the intention being, while the three hemp lines were being slacked out by hand, to let the current carry the barge some 80 feet farther downstream and away from the gorge until she had reached a point where she could be breasted into the fleet at a position made vacant for her. At the moment the second operation (that of slacking out the hand lines) was begun, the drift which had accumulated at the head of the slip suddenly broke, and was carried through the fifty feet of open water to the barge with such force that when it struck her it caused the first of the three lines to break, the second line to break the mooring post to which it was secured, and the third to slip off the mooring post to which it had been fastened. The barge, with no one aboard, and being then out of control and still heavily laden, was carried away on the swift current of the swollen water downstream where it swept into the fleet of the Iron City Sand & Gravel Company, tore away the lashings of a number of barges and other flotilla which in turn spread upon the river, drifted at random and inflicted damage to the craft of still another fleet farther down.
Out of these facts three issues arose:
(a) Whether or not the respondent, through its servants, was negligent or at fault in moving the barge in the manner and at the time it did; (b) whether or not the respondent held the barge as bailee or under charter and, according to a finding of bailment or charter, (c) whether liability for negligence, if negligence be found, is for all damages or for damages limited to the value of the barge and her pending freight.
These issues bring into view the disputed facts of the case which are many.
(a) On the issue of negligence or fault, the testimony is directed first to a question whether the respondent's servants acted as good rivermen -- that is, men on the Monongahela river at Pittsburg conversant with the habits of that waterway when swollen by heavy rains and with the hazards to craft upon its surface -- in lashing the barges to one another by cross lines and leaving the barge in question in the slip on the morning of March 14. It seems to us this is not an important question, at least not the decisive one, for assuming, as some of the testimony indicates, that this was good watermanship, the question of fault enters in what was done afterward when, having made the fleet snug, the men changed their minds when later in the day the gorge formed at the head of the barge in the slip. Knowing the river and knowing that currents in that stretch set drift on swollen waters in the direction of the slip, they were bound to anticipate drift, which apparently they did, for they prepared for it by lashing the fleet. But when the drift solidified into a gorge at the head of the slip, the men saw it, walked upon it, and were bound within reason to anticipate its behavior if relieved of the support of the barge which was held in the slip by moorings. They knew that the drift was working under the barge and raising her at that end, and that in consequence the pressure was not static but active. Whether it was necessary to withdraw the barge, break the gorge and let the drift through is uncertain; but there is no uncertainty that once embarked upon the undertaking the men were required to do it with skill commensurate with the hazards. When they decided to drop the barge back by hand, they had to anticipate what would happen to her if the gorge broke, and whether the hand lines would hold her. They made a guess as to the behavior of the gorge. They thought it would hold after the removal of the barge, and that they would have to dig it out before it would start. In other words, they trusted the gorge to hold itself in place. In this they were wrong, for on the impact of the drift upon the barge the lines failed. The presence of a tug or river steamer would have saved the situation from disaster but none was provided. Clearly the miscalculated action of the gorge was not an "inevitable accident" or a "vis major." The Louisiana, 70 U.S. (3 Wall.) 164, 18 L. Ed. 85; The Olympia (C.C.A.) 61 F. 120; The New York (D.C.) 93 F. 495, 497, the Lackawanna (D.C.) 210 F. 262; The Bayonne (C.C.A.) 213 F. 216; The Forde (C.C.A.) 262 F. 127; Petition of Diamond Coal & Coke Co. (D.C.) 297 F. 242, affirmed (C.C.A.) 297 F. 246; The Mendocino (D.C.) 34 F.2d 783. Breaking of the gorge when relieved of support by the barge obviously was a thing that might happen and, accordingly, should have been anticipated.To this, some experienced rivermen testified. When, considering these risks, the men still determined to remove the barge, nautical knowledge and skill called for provision, presently available, to withstand the impact of the drift upon the barge or, failing that, provision by the presence of steam craft quickly to make fast to the barge on the first sign of her breaking away. To this, also, rivermen testified. As no such care was exercised in the face of grave nautical possibilities, we find the respondent at fault in taking a chance on the action of the gorge and in handling the barge and allowing her to break away and, accordingly, we find it liable for damages.
(b) The extent of the respondent's liability for damages depends on its relation to the barge, whether it was that of bailee or charterer. The respondent says it was ...