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CHARLES DREIFUS CO. v. DIAMOND P. TRANSP. CO.

April 25, 1934

CHARLES DREIFUS CO.
v.
DIAMOND P. TRANSP. CO.



The opinion of the court was delivered by: DICKINSON

The libelant should recover.

Discussion.

 The respondent has assumed the burden of establishing that in truth the loss of the barge was due not to any negligence or fault of the carrying barge or to the navigating tug but to causes included in the meaning of the phrase "perils of the sea."

 The only testimony we have to aid us in finding an answer to this question is that supplied by the respondent. A very natural inquiry suggested is into the seaworthiness of the barge. This has a bearing and a very important bearing upon the answer to be found to the question propounded, but it is not wholly controlling. Another natural query which arises is that, if the barge sank because of a "peril of the sea," as the crew knew all the happenings of the voyage, what was this "peril"? Appreciating this, the respondent ascribes the sinking to the barge having collided with some submerged obstruction. The barge was in waters of such depth as to negative the thought that she struck bottom. The obstruction must in consequence have been a floating although submerged object. The only evidence to support such a theory is that what is described as a "jolt" was felt.

 The only comment to be made upon this evidence is that it is not sufficient to warrant the finding that the barge sank because of striking some unknown obstacle to navigation and to require the finding that the loss of the cargo was not due to "any peril of the sea."

 We see no need for other findings of fact or conclusions of law. If, however, they are desired, requests may be submitted, and they will be answered and incorporated herewith.

 We further see no need for a reference to a commissioner to find the damages. Unless this is asked for, an appropriate judgment may be entered in favor of the libelant and against the respondent, with costs.

19340425

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