Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before MARIS and CLARK, Circuit Judges, and KALODNER, District Judge.
We are constrained to reverse the judgment of the learned district judge. We do so with a full realization of the rule applicable in admiralty and in other branches of the law where a judicial or quasi-judicial officer is the trier of the facts. The Calvert, Eastern Transp. Co. v. Insley, 4 Cir., 51 F.2d 494. In the instant case, however, we do not find occasion for the exercise by the learned district judge of his function of estimating the credibility of witnesses, etc. We think moreover that he might have reached a different conclusion if what we deem to be the proper legal issues had been more sharply outlined in the trial before him.
It may tend to clarity if we state what seem to us the legal relationship of the litigants. The libellant-appellant, E.I. du Pont de Nemours & Company, Incorporated, is a shipper who suffered a cargo loss. The claimant and respondent-impleaded (under Admiralty Rule 56, 28 U.S.C.A. following section 723) appellee Dr. Cox, a veterinarian, is the owner of four deck-load barges or lighters without motive power and with an attendant (or nautically perhaps a captain) in charge of each. The respondent in rem, the Lighter Doyle, is that one of those barges which carried, or rather failed to carry, libellant's cargo. The respondent-appellee, Sheridan & Co., Inc., is a towing company owning tugs and barges.
The barge was "chartered" by its owner to the respondent towing company under a verbal arrangement for a voyage from a ship, S. S. Suwied, anchored in the Port of Philadelphia to Paulsboro, a few miles down the Delaware River. The libellant loaded the barge with a cargo of sulphur consigned to it and stowed in the hold of the Suwied. This cargo filled the entire capacity or full (whole) reach and burthen of the lighter, i.e., all of its available deck space. James, Carriage of Goods by Sea - The Hague Rules, 74 University of Pennsylvania Law Review 672, 689, The Liver Alkali Works Co. (Ltd.) v. Johnson, Court of Exchequer, Aspinwall's Reports, Maritime Cases, 1 New Series 380. On the voyage the barge sprang a leak and had to be beached with consequent damage to cargo.
These facts placed the parties in the legal categories hereinafter noticed. The owner of the barge is a private and not a common carrier. The entire capacity or full reach doctrine is well established. The William I. McIlroy, 37 F.2d 909, D.C.E.D.N.Y.; Warner Sugar Refining Co. v. Munson S.S. Line, 23 F.2d 194, D.C.S.D.N.Y.; The C. R. Sheffer, 2 Cir., 249 F. 600, 601; The Maine, 161 F. 401, D.C.S.D.N.Y.; The Fri, 2 Cir., 154 F. 333. The American cases make no exception for or against the owner of fleets of small vessels such as barges. They may well have done so, The Liver, Alkali Works Co. (Ltd.) v. Johnson, above cited, although the question is involved in an estimate of the rationale of the common carrier insurer doctrine. We need hardly cite to show that a private carrier is a bailee and so bound to the exercise of reasonable care only. 58 C.J.sec. 484, p. 340.
We spoke of the verbal arrangement between the claimant and the respondent as a charter. The term has been used broadly and even loosely both here, 7 American and English Encyclopaedia of Law, 2d Ed., 163, and in foreign countries, Danjon, Manuel de Droit Maritime, Titre III - Affretement, Chapitre I - Nature et Varietes de L'Affretement; Lacour, Precis de Droit Maritime, Troisieme Partie, Chapitre Premier-Contrat D'Affretement. Such use has sometimes obscured the distinction between the demise of a vessel and a simple contract of affreightment. 7 American and English Encyclopaedia of Law, 2d Ed., 164. But the authorities have not been puzzled by the relationship established by facts such as those of the principal case. So we find the Court of Appeals for the Second Circuit ruling: "Charters of barges without motive power, accompanied by a barge paid by the owner, are demises". Ira S. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417, 418. And to the same effect, The Nathaniel E. Sutton, 42 F.2d 229, D.C.E.D.N.Y.; The R. Lenahan, Jr., 2 Cir., 48 F.2d 110; Moran Towing Etc. Co. v. New York, 36 F.2d 417, D.C.S.D.N.Y.; 58 C.J.sec. 235, p. 163. The so-called charterer becomes owner pro hac vice. 58 C.J.sec. 224, p. 153. His obligations are legally, if not factually, the same, 7 American and English Encyclopaedia of Law, 2d Ed., 165.
Accordingly, we must inquire as to the presence or absence of negligence. The circumstances being maritime, the duty of care is that of providing a vessel with ability to successfully withstand those circumstances. To put it in one descriptive word, a vessel in a state of seaworthiness, or as the French phrase it, "en bon etat de navigabilite". Lacour, Precis de Droit Maritime, p. 122. An unexplained sinking in calm water imports unseaworthiness. That needs no citation of authority. Boats are built ot float. The claimant's explanation of his sinking is "contact with a submerged floating object". The same explanation has occurred to others.
"The owner, Transportation Company, stressed the importance of a scar which was found on the side of the barge when she was put on the ways. The contention was that this scar was sufficient to cause a sudden sinking, and that its course showed that the barge had struck some submerged object and then passed over it. It was pointed out that the striking of submerged objects is not an infrequent occurrence in navigation, that the insurance records and law books contain many such cases". The Calvert, Eastern Transp. Co. v. Insley, 4 Cir., 51 F.2d 494, 497.
The object had to be submerged because no one saw it and it had to be floating because the river was deep and wide. A nice balance of specific gravity tends rather to possibility than to probability.
Perchance because of their legal prevalence, courts have been somewhat skeptical of the factual existence of these "submerged floating objects".
"Collision with a floating log might indeed be a sea peril (Louis-Dreyfus v. Paterson Steamships, 35 F.2d 353, D.C.W.D.N.Y.), but that there was any such collision is pure speculation." The Mauretania, 2 Cir., 84 F.2d 408, 410.
See also The Calvert, Eastern Transp. Co. v. Insley, above cited, The Rose Murphy, 5 Cir., 32 F.2d 87; The Northern Belle, 9 Wall. 526, 19 L. Ed. 746. We share the skepticism of all these learned judges. Here the only direct testimony with respect to any impact or ...