wharfinger on equal terms. Their duties correspond.
With the factual and legal background in mind we shall now determine whether or not the parties hereto have fulfilled their respective duties.
The G. L. F. was totally unfamiliar with the physical condition of the wharf. Its reliance upon its good reputation was unwarranted, since the "William L. Hooper" was shown to be of larger proportions than those vessels out of which a reputation for safety arose. Notwithstanding this meagre knowledge, the G. L. F. expressly guaranteed sufficient water to safely float the barge. It has done nothing to qualify itself to make this guarantee. We think its dereliction in this respect is a contributing cause of the accident.
The Smith & Richards Lumber Company's duty could not have arisen prior to the time the "William L. Hooper" docked, because it did not expect the barge. Its duty accrued at the time its president and general manager, Rufus S. Richards, directed the mooring of the barge. His testimony reveals that he had made soundings about his wharf on only one occasion -- September, 1936, prior to the damage incurred herein. At that time he made three soundings on the starboard side of the "Edgar Williams" at intervals of about 60 feet, and one sounding on the port side. The information derived from these soundings is patently insufficient to qualify him to give any directions whatsoever. Under the circumstances, we think he could exonerate himself only by an unequivocal disclosure that mooring at his wharf would be at the bargeman's risk. This he did not do, and Smith & Richards Lumber Company must respond for his neglect.
The Eastern Transportation Company is alleged to have contributed to the damage in two respects. First, it is contended that it knew before the barge embarked from Baltimore that she would not lie afloat in Bridgeton. We fail to see how this failure amounts to a wilfull intrusion upon danger. For this knowledge to constitute an assumption of risk it must be proved that Eastern Transportation Company knew that the barge would be damaged in the event she did not float, and that she would not lie afloat. This has not been proved.
Secondly, it is contended that the Eastern Transportation Company knew through its bargemaster at the time the "William L. Hooper" docked at Bridgeton that she was in a place of danger and should have made soundings to ascertain the extent of the danger. Nassau Sand & Gravel Co., Inc., v. Red Star Towing & Transportation Co., 2 Cir., 62 F.2d 356. We think the conduct of Richards at the dock relieved the bargeman of his duty to determine its physical character. Unfortunately, we do not know what Richards' exact instructions were or whether they were followed. It will be recalled that Richards testified that the barge was not moored in accordance with his instructions. On the other hand witnesses in behalf of the Eastern Transportation Company testified that the barge was moored in accordance therewith. The fact that Richards was unqualified to direct a vessel in mooring at his dock in any manner relieves us of the necessity of determining the credibility of the witnesses, and speculating as to whether any damage would have ensued if the boat had actually docked at this wharf in a different manner.
In the libel brought by the Connecticut Fire Insurance Company (G. L. F.) for damages to the cargo against Smith & Richards Lumber Co., Inc., the Tug, "Mascot", the barge, "William L. Hooper", and Eastern Transportation Company, we conclude that in so far as the Eastern Transportation Company and its vessels are concerned it is dismissed. The libel is sustained against Smith & Richards Lumber Company, but recovery is limited inasmuch as the libellant is equally responsible.
In the libel for damages to the vessel brought by Eastern Transportation Company against Cooperative G. L. F. Soil Building Service, Inc., and Smith & Richards Lumber Co., Inc., recovery is granted against the respondents, they being equally responsible.
Within the latter libel there is a separate cause for action against the Cooperative G. L. F. Soil Building Service, Inc., for unpaid freight. The respondent in reply to this claim does not demand contribution from the Smith & Richards Lumber Company. Therefore, under the pleadings before this court, the claim for freight is allowed against Cooperative G. L. F. Soil Building Service, Inc.
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