Rogers v. Moran Towing & Transportation Co.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above). This is a pure question of fact and the inferences to' be drawn from the circumstances are not perfectly clear. It must be borne in mind, however, that the burden is upon those claiming a liability where, as here, there was no bailment by the Moran Company to the Foundation Company, and no agreement by the latter to return the scow in good order. The contract between the Moran Company and the Foundation Company provided that the Moran Company furnish: “The Work. — (a) The furnishing of all the necessary bottom dump and deck scows at the Foundation Company’s dock, Pier 47, North River, for the disposal of excavated materials. “(b) The operation, care, and maintenance of scows. “(c) The towing, turning, and shifting of scows. “(d) The disposal at sea or elsewhere of excavated materials in said scows.” Under such conditions the scow was not in the exclusive possession of the Foundation Company, and there was no duty on the part of the Foundation Company, as in the case of a bailee, to account for her condition. North Atlantic Dredging Co. v. McAllister (C. C. A.) 202 F. 181. But even if, for the limited time that the scow was being loaded at Pier 47, the Foundation Company was in the position of a bailee, the latter adduced proof that nothing happened to her injury, and left the Moran Company to show on the whole case that theagtoundation Company was guilty of negligence. C. F. Harms v. Turner Construction Co. (C. C. A.) 3 F.(2d) 591; The Monongahela (C. C. A.) 282 F. 17; The Junior (C. C. A.) 279 F. 407; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, affirmed (C. C. A.) 277 F. 438. We think the evidence of negligence was insufficient. No one saw the scow struck by the steel pan. The master was not called as a witness. The superintendent, Hansen, who was to care for the last part of the loading on behalf of the Moran' Company, was not called. There was not only a gale which might bring the pocket very violently against. any obstacle which it encountered on the way in to Gowanus creek, but after it reached there the wind rose to 69 miles at' 7:15 p. m. on January 16. It is impossible to tell whether such a gale did not drive the pocket into old- spiles, a sunken wreck, or jagged rocks, or to surmise what might have occurred to it during six days, the first of which was passed in a violent storm. Moreover, it is not easy to see how a blow which stove in the planks of this scow as far as six inches, if made by the steel pan, would have left her tight enough to float almost a day, and then to proceed out to Sandy Hook in a high wind, without capsizing long before she did. The views of Capt. Bagger, a surveyor of [561] reliability and reputation, tended to support the conclusion of the court below as to the cause of the accident. Nevertheless he admitted that there might have been other causes than contact with the pan, and the extraordinary fact remains that no one but the Moran tugmaster was called to recount the capsizing of the scow, or tell about her return trip from Sandy Hook or her landing at Gowanus creek, and no one at all was called to show what happened to her from the time she was landed until she was taken to the dry dock on the sixth day after. It is true that the dock superintendents of the Foundation Company were most of the time in an office of that company on Pier 47, and might not have seen or heard of an injury by the pan, if it took place, and that the engineers who operated the hoisting engine were not disinterested witnesses; but the testimony of these four men, though subject to some criticism, was confirmed by Berg, who represented the Moran Company, and was met by no witness to the contrary. The failure of the Moran Company to make prompt complaint and to call material witnesses seems significant. In spite of the deference due the findings of the trial judge, we regard his solution of the accident as too speculative to be justified by the evidence. In view of the fact that the parties have stipulated that, if the decision below be modified, so as to place the primary liability upon the Moran Towing & Transportation Company, a decree shall be rendered in favor of the Foundation Company against the Moran Company for restitution of damages paid by the former to libelant, the decree is modified, and the District Court is directed to enter a decree in favor of the Foundation Company against the Moran Towing & Transportation Company for $6,750, with interest from January 30, 1926, together with costs.