The opinion of the court was delivered by: KALODNER
The above three admiralty cases were consolidated and tried together before me without a jury. A brief exposition of some of the undisputed facts will facilitate an understanding of the claims involved in each suit.
General Chemical Company was the owner of a cargo of sulphur aboard the steamship "Commercial Bostonian." On the morning of September 14, 1937, the steamship was moored, bow in, to the south side of Pier G, Port Richmond, Philadelphia, ready to discharge the cargo of sulphur.
At that time, General Chemical Company had contracted with S.C. Loveland Company, Inc., to furnish a lighter for the transportation of the sulphur to Camden, New Jersey; and had also contracted with Lavino Shipping Company to take the sulphur out of the steamship hold by means of buckets, and load part of it upon the lighter -- the S.C.L. No. 9.
In the ensuing litigation:
The General Chemical Company, as owner of the cargo, filed a libel in personam against the Lavino Company (the stevedore which loaded the lighter) for recovery of damages to the cargo, and the Loveland Company, as owner of the lighter, also filed a libel in personam against the Lavino Company (the stevedore) for the recovery of damages to the lighter.
The third proceeding was a petition filed by the Loveland Company, owner of the lighter, for exemption and limitation of liability. In this proceeding, the General Chemical Company contested the exemption and limitation of liability, and also filed its claim therein against the Loveland Company for the loss and damage of the cargo of sulphur.
There is no contention or claim that any fault resided in the General Chemical Company; its right to recovery of the damages suffered by it is the loss or destruction of the cargo of sulphur is clear; the question is, from whom recovery should be decreed; from the owner of the lighter, from the stevedore, or from both.
The stevedore company appears in only one capacity; it asserts that the loading was done in a proper manner, and that the disaster to the lighter was due to her unseaworthiness.
The Loveland Company, owner of the lighter, appears in a double capacity; contending that the lighter was seaworthy, it defends the cargo owner's action against itself; it seeks to place the blame for the disaster upon improper loading of the lighter, and thereupon rests its claim against the stevedore company for recovery of damages to the lighter.
The General Chemical Company takes the position that (a) the lighter was unseaworthy, (b) the loading was done improperly; through the operation of each and both causes, the lighter capsized; it seeks recovery against both the Lavino Company and the Loveland Company.
This much is perfectly obvious and in effect conceded by all parties: Only one of two, or both, causes resulted in the disaster: (a) unseaworthiness of the lighter, (b) improper loading.
If the lighter is found to have been seaworthy, then General Chemical Company, the owner of the cargo, should recover all its damage from the stevedore Lavino Company; and furthermore, Loveland, the owner of the lighter, should also recover for damages to the lighter from the stevedore Lavino Company.
If the loading was not done improperly, then General Chemical Company, the owner of the cargo, should recover all its damage from Loveland, the owner of the lighter; and Loveland can recover nothing from the stevedore Lavino Company.
If the lighter capsized through the operation of both causes -- unseaworthiness and improper loading -- then the owner of the lighter and the stevedore are jointly and severally liable to General Chemical Company for damage to the cargo, but neither can recover anything against the other.
A determination of what caused the lighter to capsize will furnish the answer to the queries impliedly propounded just above, and fix the relative rights and liabilities involved. A more detailed study of the facts now becomes necessary for that purpose.
The lighter was a wooden box-like affair with raked ends, and with a small house aft. The ends went in 10 feet downward from the deck. The dimensions of the deck were 110 feet 7 inches by 32 feet. The dimensions of the bottom were 90 feet by 32 feet. The depth of the lighter was 10 feet. Her draft unloaded was approximately 28 inches forward and 37 inches aft -- a mean draft of 2.7 feet. She carried her cargo on deck, not in the hold. Her carrying capacity was 600 tons. A cargo-bin of boards had been built to hold the sulphur: the side-boards were 2 feet high and the cargo space within the bin was 30 feet by 90 feet.
The loading was completed about 11:30 P.M. on the same day -- September 14, 1937. At 12:30 A.M. on the morning of the next day, September 15, about an hour after the loading was completed, the lighter capsized -- turned over and floated bottom up.
Witnesses called by the owner of the lighter testified that prior to the time the lighter was turned around all the sulphur loaded on to her from the steamer was being dumped in the space between a line running fore and aft through the center of the lighter (amidships the lighter) and the starboard rail (within the cargo-bin).
The loading was accomplished in this manner: two booms were being operated, both fixed to the mast of the steamer; one lowered an iron bucket into the hold of the steamer, picked up a load of sulphur, and swung it upward out of the hold; then the other boom went into operation and swung the bucket over to a point somewhere above the deck of the lighter, lowering it thence to a point where Seeney, a Lavino Company employee, standing on the deck or on the sulphur already loaded, tipped the bucket with a 6-foot pole, so that the load of the bucket fell onto the deck of the lighter. The witnesses called by the owner of the lighter further testified that this boom, through the angle of elevation at which it was operated, carried to a distance somewhat short of the midshipline of the lighter, so that any load dropped from the bucket must perforce fall on the starboard side of the lighter (so long as the starboard side was next to the steamer).
The same witnesses also testified that in the course of the loading of the greater part of the cargo, and while the starboard side of the lighter was next to the steamer, the lighter developed a progressive and progressively dangerous list to starboard; that frequent warnings, complaints, and protests were made by Gomez, the captain of the lighter, and by Seeney (the Lavino Company employee), to the employees of the stevedore company who were engaged in the task of loading the sulphur from the steamer to the lighter; coupled with frequent requests that the lighter be turned around, so that the loading could be done on the other side, the weight on the lighter equalized between both sides, and the list corrected: but that the protests, warnings, complaints and requests all alike went unheeded until all but 20 of the 337 tons had been loaded on to the starboard side, at which time, as already stated, the lighter was turned around and the last 20 tons or so loaded on to the port side.
Incidentally, it should be mentioned at this point that after the loading was completed, the lighter was cast loose from the steamer, to which it had been moored by lines during the loading, and brought to a point alongside the wharf and inshore from the bow of the steamer, where the lighter remained until she capsized.
The witnesses already referred to also testified that the lighter came to list so badly that water was coming over the starboard side and flowing down an open hatchway aft the lighter -- the hatch-cover having floated off down the river.
One of the witnesses just mentioned was Seeney, the employee of the stevedore company, who was tripping the bucket. He was testifying, however, for the Loveland Company, owner of the lighter. He must be characterized as a disinterested witness. Although not a regular employee of Lavino, most of his stevedoring work seems to have been done for them. He was not employed at a weekly wage by Lavino; like other stevedores, he obtained work by the simple expedient of visiting the wharves each day and looking for work until he found it. He had worked a few times for Loveland, but infrequently. He had never been discharged, so far as appears, by the Lavino Company, nor is there any testimony pointing to any special reason for his giving evidence against it.
He furnished strong evidence of improper loading. For example:
"Q. Did you hear any request from anyone that the lighter be turned around before she was turned around? A. Yes, sir, the captain and myself for three hours kept telling him to please turn it around because we were getting worse and worse all the time.
"Q. Telling who? A. A fellow on deck, I don't know his name, the hatch tender.