294 F. 2d 272 - Rice v. Rice

At the trial, substantial proof was introduced that the Joan R., although old, was in good condition and seaworthy at the time she was delivered to Trap Rock. An employee of Trap Rock testified that he inspected the Joan R. on May 19th before she was loaded, and again on May 20th after loading. Although he found her in good condition, he discovered about 1/4 of an inch of water in the bottom of the boat on the first inspection, and 2 inches on the second-- an amount which is normal for scows of this type. A prior captain of the Joan R. testified that she needed to be pumped every two days when loaded. After the accident, the Joan R. was taken into dry-dock and Allison, who operates the dry-dock company, testified that he found no leaks at all in the boat and that no work needed to be done on her bottom. However, there was testimony that there were a few places in the bottom of the Joan R. where water might have entered the hull.

The trial court ruled that the Joan R. was seaworthy when delivered to the charterer and that, thus, the owner was entitled to the benefit of the presumption of negligence which arises whenever a bailee returns goods in a damaged condition. See, e.g., The Moran No. 10, D.C.S.D.N.Y.1924, 41 F.2d 255; Tomkins Cove Stone Co. v. Bleakley Transp. Co., Inc., 3 Cir., 1930, 40 F.2d 249; O'Boyle v. United States, 2 Cir., 1931, 47 F.2d 585. Although this presumption does not cast upon the charterer the burden of persuading the trier of fact that the accident happened without its negligence (Richmond Sand & Gravel Corp. v. Tidewater Const. Corp., 4 Cir., 1948, 170 F.2d 392), it does, nevertheless, require the charterer to come forward with evidence which shows 'either how the barge was injured, or that however that was, it was not due to his neglect * * * The second alternative requires proof of all that the defendant has done with regard to it.' Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 1932, 60 F.2d 734, 736; Richmond Sand & Gravel Corp., supra. Once this standard is met, the presumption disappears entirely and the question of negligence is for the trier of fact just as it would be in any other case where no presumption exists. Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 111, 62 S.Ct. 156, 86 L.Ed. 89. Here, however, Trap Rock did not show how the accident occurred; nor was its proof as to all it had done sufficient to rebut the presumption.

It is unnecessary to indulge in speculative possibilities as to whether the Joan R. had been misloaded, overloaded or damaged on a prior trip. There is affirmative testimony that when loaded the Joan R. had to be pumped out every second day. The captain of the Joan R. was last seen aboard Friday night, May 21st. He was apparently absent Saturday and Sunday. There is no proof that the captain, although he was subject to Trap Rock's orders, or anyone else, made an inspection of the condition of the Joan R. on Saturday or Sunday. A casual passerby on Sunday morning noticed that the Joan R. had a serious list. He proceeded to the dock area and found neither captain nor watchman on the scows. Nor was any proof offered as to when the Joan R. had last been pumped or checked for water.

Thus, it is highly possible that the Joan R. had not been pumped for some time before the accident, that there was an accumulation of water in her hold, and that this condition plus the swells from passing boats caused her to capsize. Leaving a loaded scow unattended and uninspected over a week end might well be considered to be negligent. Upon the law and the facts, the trial court's conclusion of liability must be affirmed.

The Limitation and/or Exoneration Proceeding:

The only appeal taken from this phase of the proceedings below is from that portion of the decree which denies exoneration and in effect holds the Joan R. liable in rem for the damage to the J. P. Curry and the Central Light. In so holding, the trial court below reasoned that, although the accident occurred without the 'privity and knowledge of the owners,' thus entitling them to limitation of liability, exoneration must be denied because there was an unrebutted presumption of negligence upon the part of the charterer, and because a maritime lien arises in favor of a party injured by the negligence of anyone lawfully in control of the vessel.

Rice correctly argues that the presumption of negligence arising out of the bailor-bailee relationship, used to hold Trap Rock liable to Rice, would not be available in the limination/exoneration proceeding to the claimants, Jacobus and Colonial, which were not parties to the charter. However, another presumption, namely, that an uncontrolled vessel which collides with another is presumed to have done so as a result of negligence, came into play. The Louisiana, 1865, 3 Wall. 164, 70 U.S. 164, 18 L.Ed. 85; The Buffalo, 2 Cir., 1932, 56 F.2d 738; The Trenton, 2 Cir., 1934, 72 F.2d 283. In order to rebut this presumption, evidence must be introduced that would permit reasonable men to infer that the damage was due to an unavoidable accident. See The Louisiana, supra; Swenson v. The Argonaut, 3 Cir., 1953,204 F.2d 636. The Joan R. could be relieved of in rem liability only if the damage was not caused by the owner's or the charterer's negligence. The same state of facts would be sufficient to imply negligence. The scow captain was in Rice's employ. As captain he must have known of the need for pumping or at least the necessity for supervision and inspection from time to time. He was responsible for taking care of the scow. He also had similar duties on behalf of the charterer. Under these circumstances the Joan R. was liable in rem to the claimants as a matter of law. The Barnstable, 1901, 181 U.S. 464, 21 S.Ct. 684, 45 L.Ed. 954; The Stamford, D.C.S.D.N.Y.1929, 35 F.2d 55; Gilmore and Black, The Law of Admiralty, page j 4.

There is no merit to the contention that the court below did not have jurisdiction to impose in rem liability. See Hartford Accident & Indemnity Co. v. Southern Pac. Co., 1927, 273 U.S. 207, 47 S.Ct. 357, 71 L.Ed. 612.

Affirmed.