The opinion of the court was delivered by: BARD
This is a suit to recover the value of stevedoring services furnished by the libellant to the respondent in loading a quantity of stone. The respondent, by way of cross-libel, seeks to setoff against libellant's claim the asserted value of libellant's services in connection with a portion of the stone which was lost when the barge on which the libellant had loaded the stone capsized.
On the basis of the pleadings and the testimony adduced at the trial of this cause, I make the following special
1. On September 12, 1944, the respondent Joseph Magistrelli entered into a contract with the United States of America to furnish certain stone to be used as a foundation for the construction of a dike in the Delaware River, and also to transport such stone to the scene of the work and lay it in the river.
2. On October 3, 1944 the libellant and the respondent entered into a contract whereby the libellant agreed to discharge approximately 10,000 tons of stone onto lighters and barges to be furnished by the respondent at the Wilmington, Delaware, Marine Terminal. Under the terms of said contract, the respondent agreed to pay to the libellant 55 cents per gross ton, or 49.107 cents per net ton, for discharging this stone.
4. Thomas Earle and Son, Inc., chartered from the General Contracting Company several barges, including the Barge No. 10, whose maximum safe load limit was 300 tons.
5. Thomas Earle and Son, Inc., also engaged a tug boat owned and operated by Captain Harry E. Chance. Under the agreement between Thomas Earle and Son, Inc., and Captain Chance, the latter was to tow the loaded barges from the Wilmington Marine Terminal to the scene of the work across the Delaware River, and to bring back from the scene of the work to the Marine Terminal the empty barges and place them in position for loading alongside the wharf. It was also Captain Chance's responsibility to tend the lines of the barges and to see that they were pumped out when necessary.
6. Under the contract between the respondent and the United States Government, it was required that a government inspector be present at the Wilmington Marine Terminal when the stone was unloaded from the freight cars and placed onto the barges by the libellant. It was the duty of this government inspector to assure that the stone furnished was in accordance with specifications, and that it was taken from the freight cars and actually loaded onto the barges.
7. The work proceeded satisfactorily up to and including Saturday, November 11, 1944. On that day, the libellant commenced loading the Barge No. 10, and by the end of the working day approximately 75 tons of stone had been loaded onto that barge.
8. On Sunday, November 12, 1944, in the absence of a representative of the respondent, in the absence of a representative of Thomas Earle and Son, Inc., in the absence of the government inspector, and in the absence of Captain Chance, the tug master, the libellant proceeded to finish loading the Barge No. 10 to a total of approximately 282 gross tons of stone.
9. The loading done on Sunday, November 12, 1944 was carried out in a proper and workmanlike manner, and when the libellant's foreman left the Marine Terminal at the end of the working day, the lines to the Barge No. 10 were properly secured, both to the barge and to the wharf. The libellant's foreman left sufficient slack in the mooring lines to allow for the expected fall in the tide.
10. On the morning of November 13, 1944, when the employees of the libellant returned to the Marine Terminal, they discovered that the Barge No. 10 had capsized, dumped her ...