Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
This is a suit in admiralty by a buyer of pig iron against the seller for the value of part of the goods sold and paid for. The contract of sale required the seller to deliver pig iron on board a barge to be provided by the buyer at the seller's pier. The dispute concerns iron which was delivered by the seller as agreed onto a barge furnished by the buyer and then lost when the barge sank at the pier some hours later. The buyer attributes this accident to the seller's negligence in overloading the barge.
At the conclusion of the trial, during the course of which the record of a prior exoneration proceeding was introduced in evidence, the court, acting partly upon evidence in this case and partly upon findings in the exoneration proceeding, allowed the buyer to recover the value of the lost cargo.The seller has appealed.
The testimony in this case showed that the seller, disregarding the buyer's instructions that only 1,000 tons could safely be carried by the barge, had loaded it with 1,145 tons of pig iron. The court below found, justifiably, that this was negligent overloading. But this negligence injured the buyer only if the overloading was what caused the barge to sink. Thus a finding as to the cause of the sinking was and is essential to the libellant's right to recover in this case. The court found that the barge sank because it was overloaded. However, the court made this finding, not on the basis of the evidence in this proceeding, but on the ground that the seller was bound by a finding made in the prior exoneration proceeding.
The court's failure to make an independent finding on this issue was a matter of consequence because the record provided an adequate, though not necessarily compelling, factual basis for attributing the sinking to unseaworthiness, for which the seller obviously had no responsibility, rather than to overloading. In its answer, the respondent seller asserted, among other things, that the barge sank because it was unseaworthy. In his opening statement, respondent's counsel contended that the libellant would have "to establish first the seaworthiness of the barge and that the overloading was a proximate cause" of the sinking. Both parties introduced evidence on this issue.
There were no witnesses to the sinking and the captain of the barge, who slept on board the vessel, went down with it. Thus the cause of the sinking had to be established at the trial by inference and opinion. A witness for the buyer deposed that in his opinion the barge sank because it was overloaded. The only stated basis for this opinion was his observation of this barge traveling on the river on another occasion when a comparable, though somewhat smaller, overload had left the vessel dangerously low in the water.
On the other hand, there was positive and uncontradicted testimony that during the loading operation the barge showed a "small squirting leak" through a seam about halfway between the floor and the ceiling. This in itself afforded some basis for an inference that the vessel sank because it was not stanch. Moreover, the circumstances under which this unobserved sinking occurred were such as to create a presumption as to cause under the familiar doctrine that "an unexplained sinking in calm waters imports unseaworthiness". See The Doyle, 3d Cir. 1939, 105 F.2d 113, 114.
The evidence showed without dispute that the entire cargo of pig iron was loaded before 8 P.M. On March 11. After loading, the barge showed 12 to 14 inches of freeboard. The trial court found that the vessel did not sink until "sometime during the early morning hours of March 12". During the interval of several hours between the completion of loading and the sinking, the barge was moored at a pier in quiet water too far from the stream, according to the testimony, even to be affected by wave action created by any passing vessel. Certainly, the effect of the excess weight of the cargo upon the level of the barge in the water would not be delayed for hours after the loading. Rather, that effect was fully reflected by its posture in the water, showing 12 or 14 inches of freeboard, immediately after loading. In such circumstances, the sinking of a vessel is presumptively the result of unseaworthiness. Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 62 S. Ct. 156, 86 L. Ed. 89; Eastern Gas & Fuel Associates v. Martin Marine Transp. Co., 3d Cir. 1951, 190 F.2d 394; S.C. Loveland Co. v. Bethlehem Steel Co., 3d Cir. 1929, 33 F.2d 655.
On the argument of this appeal, the only suggestion that appellee's able counsel could offer as offsetting these indicia that unseaworthiness caused the sinking was the possibility that the excess 145 tons of cargo may have contributed to the opening of seams below the water line. It is likely that seams opened, but there is at least as much basis for attributing this to the unsoundness of the already leaking hull as to the fact that the barge was carrying 145 tons of cargo in excess of a normal load. Cf. The Doyle, supra.
Thus, the trial judge might well have made a finding that the barge sank because it was unseaworthy if he had regarded this as an issue to be decided upon the evidence in this proceeding and upon that evidence alone. Of course, such a finding would have precluded recovery in this suit.
This brings us to the legal question whether the finding made in the prior exoneration proceeding, that overloading caused the sinking, is binding upon the seller as respondent in this suit.
The earlier proceeding was a libel instituted by a third party, the owner of the barge, asking exoneration from or limitation of liability in connection with the barge's sinking. The present respondent appeared as a claimant, not in the capacity of seller, but as owner of the dock who lost the use of that facility while the sunken barge obstructed navigation. The present libellant also intervened, claiming damages from the barge owner for the loss of its iron. After evidence had been introduced but before the submission of the case for decision, the present respondent filed a praecipe asking the court to "mark * * * [its] claim * * * withdrawn with prejudice". Accordingly, the clerk formally entered this withdrawal "with prejudice" upon the docket. Then, with only the present libellant and the owner of the barge before it, the court made findings, including the one now in question, and rendered judgment limiting the shipowner's liability to the present libellant.
We do not doubt that the voluntary withdrawal of respondent's claim against the shipowner "with prejudice" was effective as a final disposition of that claim. But this involved no finding concerning the cause or circumstances of the barge's sinking. For whatever reason*fn1, respondent merely agreed that it would not pursue its claim in the exoneration proceeding and that it should be permanently debarred from asserting any future claim against the shipowner in connection with this accident. The consequent docket entry gave legal effect to this tender.
It was after this termination of the present respondent's connection with the suit that the remaining controversy was submitted to the court for decision solely between the shipowner and the present libellant. Thus, the present respondent was a stranger to the subsequent judgment and to the fact finding upon which that judgment was based. In these circumstances, the court's findings had no effect upon respondent, under the familiar general rule that "a person who is not a party or privy to a party to an action [in personam] * * * is not bound by or entitled to claim the benefits of any adjudication upon any matter decided in this action". Restatement, Judgments, § 93.The Restatement adds, by way of particularizing comment on this general rule, that "findings of law or of fact upon litigated issues * * * do not affect persons who are not parties or privies to the action and the judgment". Restatement, Judgments, § 93, comment on clause (b). Arenas v. United States, S.D.Cal.1951, 95 F.Supp. 962, affirmed, 9th Cir. 1952, 197 F.2d 418; Board of Directors of Ajax Electrothermic Corp. v. First Nat'l Bank, 1960, 33 N.J. 456, 165 A.2d 513.
We conclude that the trial court erred in giving a finding made in the earlier exoneration proceeding probative effect against the present respondent. We think this error can be corrected by a partial new trial ...