The opinion of the court was delivered by: FORMAN
These two suits, consolidated for trial, arise out of the sinking of the barge, "William L. Hooper", in the Cohansey River, which occurred on November 23, 1936 at Bridgeton, New Jersey, off the dock of Smith & Richards Lumber Company. The "William L. Hooper" was laden with a cargo of fertilizer consigned to the Cooperative G. L. F. Soil building Service, Inc., hereinafter referred to as the G. L. F. The Connecticut Fire Insurance Company, insurer of the cargo, has responded to G. G. L F., and now sues in the first case, Admiralty 8421, as successor to its rights for damages to the cargo. In the second case, Admiralty 8451, the Eastern Transportation Company, owner of the barge, "William L. Hooper," instituted suit to recover for damage to its vessel and for unpaid freight.
In July of 1936 the G. L. F. orally agreed to pay Smith & Richards Lumber Company 10 cents a ton for each ton of fertilizer unloaded at the latter's dock on the Cohansey River. At the time of this agreement no inquiries or disclosures were made by either of the parties as to the physical character of the dock.
On November 14, 1936 the G. L. F. chartered the "William L. Hooper" through Wathen & Company, shipbrokers of Baltimore, Maryland, for the purpose of transporting fertilizer from Baltimore to Bridgeton. The G. L. F. guaranteed in the following language sufficient water to keep the barge afloat: "* * * sufficient water for the barge to safely lie afloat at all times being guaranteed to, at and from the wharf or places of loading and discharging, * * *."
The "William L. Hooper" was loaded in Baltimore with over 700 gross tons of fertilizer. Before her departure her captain, Denwood W. Insley, who was familiar with the waters around Bridgeton, advised Mr. Olwine, now deceased, in officer of Eastern Transportation Company, that the barge would lie on the bottom at Bridgeton. To this, Olwine replied, "That is all right, go ahead."
The barge embarked from Baltimore bound for Bridgeton, N.J., being towed by the tug, "Hilton". At Poole's Island the tug, "Mascot", replaced the "Hilton", and from there she proceeded to Bridgeton. About twenty miles from her destination she hit bottom and rested until the incoming tide. This is not unusual, because barges frequently rest on the ground without damage providing the bottom is even.
The "William L. Hooper" arrived at the Smith & Richards Lumber Company's dock about 4:45 P.M., November 23, 1936, and no preparations had been made for her arrival. In fact, she was an unexpected surprise. Rufus S. Richards, president and general manager, and his assistant, James Rodman, were at the dock in behalf of Smith & Richards Lumber Company. The first indication of the arrival of the "William L. Hooper" was an exclamation by Rodman directed to Richards that "an ocean liner" was coming up the river.
Prior to this time the majority of vessels docking at this point were 75 to 125 feet in length carrying a cargo of approximately 300 tons. This barge was 186 feet long, and it will be recalled that her cargo was over 700 gross tons.
The only testimony disclosing Richards' knowledge of the physical character of his dock is meagre. He states that on September 7, 1936 he made soundings from the starboard side of the barge, "Edgar L. Williams", a self-propelled vessel about 123 feet in length, which was breasted off 6 feet from the bulkhead of the Smith & Richards Lumber Company's dock. These soundings were made at the bow, stern and amidships. Another sounding was made amidships on the port side. This is the limit of his knowledge, notwithstanding the fact that there was a flood in 1934 which to his knowledge carried away bridges and changed the character of the bottom of the river.
On the basis of this knowledge he indisputedly advised the captain of the barge how to approach the bulkhead and moor with safety. The admits he did not at that time know the draft of the barge, and adds that he considered only her length. What he advised is contradicted.
Richards testified that he told Captain Insley, the only man on the barge, to breast off approximately 20 feet from the dock, and put the bow out towards midstream. As soon as he satisfied himself that these instructions were being followed, he departed.
The barge actually docked parallel with the bulkhead breasted off approximately 15 feet, the stern of the boat extending beyond the property of Smith & Richards Lumber Company. The bottom of the river was uneven and elevated in the vicinity of the stern and bow of the barge.At low tide these ridges supported the ends of the barge, but permitted its center to sag causing the damage which ensued.
The captain of the barge and the crew of the tug, "Mascot", offered an entirely different story as to the directions Richards offered them. These witnesses testified that as the bow of the "William L. Hooper" approached it struck ground within 4 feet of the dock. The captain then made soundings with an improvised crab net pole about 12 feet in length which he ran along the starboard side two-thirds the length of the deck up from the stern. He also made one sounding on the port side. These witnesses are consistent in their testimony that Richards came upon the boat at this time and said there was a bar under the stern, and in ...