The opinion of the court was delivered by: CLARY
This action arises out of the sinking of the barge FELL LOVELAND on March 12, 1955, at respondent's pier. Libelant seeks recovery for the value of pig iron lost and not recovered when the barge was salvaged.
Libellant is the R. D. Wood Company, successor to Florence Pipe Foundry and Machine Company (hereafter referred to as 'Florence'). Respondent is Phoenix Steel Corporation, successor to Chester Blast Furnace, Inc. (hereafter referred to as 'Chester'). The barge FELL LOVELAND was owned by S. C. Loveland Co. Inc., and was chartered to Florence for the purpose of transporting pig iron from Chester's dock in Chester, Pennsylvania, to Florence's plant at Florence, New Jersey.
Certain facts are not controverted. The pig iron was sold by Chester to Florence f.o.b. vessel as Chester. Florence chartered the barge FELL LOVELAND, the maximum safe load of which was approximately 1,000 tons, from S. C. Loveland Co. Inc., to carry pig iron. Chester loaded a total of 1,144 gross tons, 1,940 pounds of pig iron on the barge. The barge master, James, refused to allows any excess to be removed and the barge sank sometime during the early morning hours of March 12, 1955.
The barge was later salvaged and most of the pig iron recovered and shipped to Florence by barge and rail. However, the balance of 140 gross tons, 1,940 pounds was never recovered or delivered. Having paid for the value of the entire cargo on April 29, 1955, Florence brings this suit to recover the amount paid for the pig iron not received, together with additional freight charges, interest and costs.
Certain questions ordinarily involved in this litigation have been determined in a limitation and exoneration proceeding brought by S. C. Loveland Co. Inc., in which both parties to the instant case appeared as claimants. Although Chester withdrew from that proceeding, it did so with prejudice and only after it had been present for and participated in the trial of the issues, and is therefore bound by the necessary findings of Judge Van Dusen, reported at D.C.Pa., 170 F.Supp. 786. The following facts determined in that opinion are applicable to and binding upon issues presently before the Court:
1. James, the master of the FELL LOVELAND, was negligent in not allowing Chester to remove the excess pig iron from the barge, or in not contacting his employers, S. C. Loveland Co. Inc. for instructions.
2. The barge sank because it was overloaded.
3. Florence had notified Chester of the safe capacity of the barge and was therefore not contributorily negligent in the overloading.
All the requested Findings of Fact for libellant are affirmed as stated, with the following exceptions:
(a) Request number 9 is amended to read: 'It was the responsibility of the barge owner, S. C. Loveland Co. Inc., to provide for the movement of the Fell Loveland to Chester's dock for loading.' There is no evidence in the record sufficient to establish responsibility for movement of the barge from Chester to Florence.
(b) Request number 20 is affirmed with the addition at its end of the words 'in excess of 1,000 tons.'