that the vessel was improperly loaded, and do not accept the evidence of the witnesses who testified the vessel was unseaworthy.
I am perfectly aware, of course, that when a vessel sinks in calm weather and smooth water, an inference arises that she is unseaworthy. The inference may be overcome, however, by testimony that something else caused the disaster (e.g., improper loading). See Taylor Bros. Lumber Co. v. Sunset Lighterage Co. et al., 2 Cir., 43 F.2d 700, 702, and cases there cited.
The overcoming of the inference as to unseaworthiness is aided by the testimony of the trips successfully negotiated by the lighter prior and subsequent to her capsizing. Chateaugay Ore & Iron Co. v. Eastern Transp. Co., D.C., 15 F.Supp. 705; Spencer Kellogg & Sons v. Buckeye S.S. Co. (The Briton), 6 Cir., 70 F.2d 146.
It is clear to me that the cargo should have been trimmed by the stevedore company. The fact that this was a deck lighter (i.e., a lighter which carried her load on the deck, and not in the hold, thus lessening the stability of the vessel) only serves to emphasize the duty to trim the cargo. Had this been done, I am convinced that the lighter would not have capsized; and the failure to trim is a breach of duty on the part of the stevedore company. The Robert R., 2 Cir., 255 F. 37. At least, loading should have been stopped when the lighter commenced to list badly and when Gomez, the captain, protested. The language of the Circuit Court in The Robert R., supra, is perfectly apt, and I quote therefrom (255 F. at page 39 et seq.):
"It was one in which circumstances might arise during the performance where the stevedores should call on the steamship to trim, and their failure to do this, and persistence in dangerous loading, rather than the making of a contract which did not call for trimming, were the negligent acts that caused the damage.
"Indeed, the fact that the stevedores did not contract to trim seems to us in no way to relieve the latter from liability. They undertook to discharge the cargo, and were bound to do this is a prudent manner. If it became unsafe to load the barge without trimming, as proved to be the fact, it was the plain duty of the stevedores to stop work and call upon the steamship to trim. Instead of doing this, they continued to pile the ore on the deck of the lighter, without seeing that it was spread by some one, until the center of gravity of the lighter became so high that she dumped her load. * * * If the stevedores had ceased loading and called for trimming and secured assistance, the accident would not have happened. Their continuance in loading when danger was imminent was the proximate cause of the damage and they only are liable in tort. It was the dumping of the last buckets of ore on the lighter that caused the injury. * * *
"If conditions showed that continuance in discharging was unsafe, the stevedores, like any one else, were bound to cease discharging. Only an express contract, or consent, to do dangerous acts, can shift the liability for these acts, and no such situation appears here. * * *
"It is contended that the master of the lighter should have warned the stevedores of the danger. We think the District Court was correct in holding that the contract with the lighterage company was only for carriage and that a price was made which expressly did not include trimming by the lighter. The master of the lighter, as found by the court below, protested repeatedly at what was being done. This protest was made both to the foreman of the stevedores and on the second day to one of the Pellegrinos. * * * We think the master of the lighter did all that could be reasonably expected of him under the circumstances."
I have, heretofore, indicated the conclusions which I have reached. I find that it was the duty of the Lavino Company to do the loading in a proper manner; that it failed to discharge this duty; that the vessel was loaded unevenly, with by far the greater part of the cargo (to the extent of approximately ninety per cent thereof) loaded on the starboard side; that this uneven loading constituted improper loading; and that this improper loading and failure to trim, independently of any other cause, resulted in the overturning of the vessel and in the damage to the cargo and to the lighter. It follows that the General Chemical Company is entitled to recover from the Lavino Company for loss and damage to the cargo of sulphur; and that the Loveland Company is entitled to recover from the Lavino Company for the damage suffered by the lighter.
Let a form of decree be submitted accordingly; also requests for findings of fact and conclusions of law by both sides. The decree should include a provision for reference to a Special Master to find damages.
The view I have taken of this case renders it unnecessary, naturally, to rule upon the petition of S.C. Loveland Company for exemption from and limitation of liability.