Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before WOOLLEY, DAVIS, and THOMPSON, Circuit Judges.
When loading cargo aboard the Steamship "Gibraltar," the Jarka Corporation, stevedore of the Munson Steamship Line, the charterer, fastened the ship's gear to a draft of three freight cars lying on the dock and pulled them to a position abreast of a hatch for the purpose of transferring cargo from cars to ship. During this movement the mast to which the gear was attached buckled. The shipowner filed a libel against both parties to recover for the injury occasioned, it said, by the wrongful and negligent use of the gear. From the decree dismissing the libel the owner appealed. Glasgow Shipowners' Co. v. Munson S.S. Line et al. (D.C.) 44 F.2d 826.
Liability may depend on a number of things but primarily on the contract between the principal parties. The charter by its terms is not a demise; nor is it a contract of affreightment. Being the hire of the ship at a named rate per ton of deadweight capacity for a named period, we regard it a time charter. Its provisions pertinent to this case are that the owner engaged to make the ship "ready to receive cargo" and "in every way fitted for the service," and put her whole reach for cargo purposes at the charterer's disposal. The owner undertook "to keep the steamer in a thoroughly efficient state in hull, machinery and equipment for and during the service" and provide and maintain gear with the necessary winches, ropes, falls, slings and blocks, capable of handling lifts up to three tons, beyond which lifts were for the charterer's account. The charterer was required "to load, stow and trim the cargo at its expense under the supervision of the captain," and return the ship to the owner "in like good order and condition, ordinary wear and tear excepted."
Thus at the beginning the parties defined their engagements -- the owner to man the ship and supply her with cargo equipment "efficient * * * for * * * the service," yet retain her for purposes of navigation and supervision of cargo movement; the charterer to have the reach of the ship for loading, carrying and discharging cargo with the duty to return her "in like good order and condition." Against this contract are the outstanding facts that the owner supplied the equipment and supervised the loading of cargo and the charterer returned the ship with a buckled mast.
The answer to this question depends ultimately on the answer to the question, why did the mast buckle? It is certain the mast buckled because it was too weak for the authorized strain of three tons, or, being strong enough, because it was negligently subjected to an excess strain or the permitted strain was negligently applied.
No one has answered this question because no one knows. At the trial the owner relied on the apparent good condition of the mast when the ship was delivered as prima facie evidence that the mast was sound. The charterer produced evidence that on subsequent examination the mast showed it was weak when the reach of the ship was delivered to it. In this state of the case the parties resorted to the ever recurring question of burden of proof, the libellant insisting, and the respondents objecting, that the issue is controlled by the rule in case of a demise, where (the ship at the time of the injury having been in the exclusive possession of the charterer) after the owner's prima facie case of injury, the burden of going forward to show how the injury occurred and also to show it was not through his negligence rests on the charterer. Swenson v. Snare & Triest Co. (C.C.A.) 160 F. 459; Schoonmaker Conners Co. v. Lambert Transp. Co. (C.C.A.) 268 F. 102; Tomkins Cove Stone Co. v. Bleakley Transp. Co. (C.C.A.) 40 F.2d 249, 251. But that rule cannot apply under this particular time charter for several reasons, the controlling ones being the owner's engagement to supply efficient equipment, including the mast, and its reserved right to supervise the loading of cargo while the ship was partly in its possession. So the question inevitably gets back to whether the owner has proved that it performed its covenant to supply a good mast in the first place against the respondents' evidence that the mast was weak and defective when turned over to it for cargo lifting. If the mast was weak -- weak enough to buckle under the permitted strain -- the owner breached its covenant and the charterer was not bound to return in good condition a mast received in bad condition.
The issue whether the mast was improperly rigged in not having a back stay does not, we think, affect the central issue as to the mast's condition, for, if good, it did not need a back stay and, if bad, the owner was at fault anyway.
Failing affirmatively to prove negligence on the part of the charterer as it had averred in its libel, the owner next took the position that the use of the mast and gear for pulling cargo cars, instead of lifting cargo, was a deviation from the use permitted by the charter (by analogy to a deviation from a prescribed voyage) and therefore the respondents are liable for all damage, irrespective of their negligence.
Whether that is law in the abstract (on which we express no opinion) it is not the law of this case if the charter and the facts take it outside of such a rule. To determine whether that is so, we shall go into the car and cargo movement at some length.
The cargo was brought to the side of the ship in railroad cars. When it became necessary to move up a car to a particular hatch, the stevedore, as in this instance, made fast to the car a 5/8 inch bull wire which was carried through a snatch block fastened to a bollard on the pier. The bull wire was then carried through a hawser opening or mooring pipe in the side of the ship approximately abreast of the snatch block, and its inner end was fastened to the hook on the fall on the port cargo boom at the hatch, which in turn was connected with the winch aboard ship. This method of pulling cars in place for the purpose of taking on cargo was during the day objected to by the captain under whose ...