International Mercantile Marine S. S. Co. v. W. & A. Fletcher Co.

HOUGH, Circuit Judge (after stating the facts as above). There are two questions at bar; First, were the respondent’s servants so negligent in performance of their work that such negligence caused libelant’s loss; and, second, did respondent do that work under a contract that excused or released it from the consequences of negligent performance ? We consider both these queries as of fact, but (as usual) the facts fit into and are to some extent interpreted by a context of law. The contract for reconditioning the St. Louis and other vessels belonging to libelants was one of bailment (Pan American v. Robins [C. C. A.] 281 Fed. 97), and respondents, the bailees, were to do the work with their own servants, at their own yard. That contemporaneously libelants were to do, and were doing, other work is immaterial. The portion of the ship where fire broke out was wholly under respondents’ control. The assumption of such an undertaking implies the exercise of ordinary care only, but both care and skill were necessary for due performance, wherefore these bailees by law undertook to do the work with whatever degree of skill was adequate for due performance. 6 C. J. 1118, and cases cited. As Prof. Williston puts it (Contracts, § 138): “The degree of care which one who assumes or undertakes a certain act is held hound to exercise depends upon the degree of skill which he professes, and one who professes special skill will be liable for failure to use that skill.” [858] While the learned writer just cited is strongly of the opinion that any action against a bailee for nonperformance really sounds in tort, that distinction is of no importance in' the admiralty, and we shall assume, with the court below, that on failure to return the St. Louis properly reconditioned, the bailees can be held only on a showing of negligence causing failure to perform. Undoubtedly the general rule is that negligence is never presumed, and he that alleges it must prove the same; yet where one receives a chattel in certain condition, and redelivers it with marks of injury that only culpable negligence would probably cause, “it is the bailee who should open his mouth and make explanation to relieve himself”; and certainly slight evidence under such circumstances will shift the burden of evidence. Schouler, Bailments, § 23, and cases cited. ' In the present instance it was shown, and is admitted, that the fire was sudden and violent in the extreme; the only highly inflammable substance known to be there or thereabouts was varnish remover,1 lavishly used as we find. In close juxtaposition,-how close the evidence leaves us in doubt, to those using the remover, and their containers for immediate supply, there was a man, if not men, using blowtorches to remove paint. The weather was cold, which made at least the wax more rigid than usual; how it could affect the alcohol is neither shown nor-suggested. The function of the wax is to form a film on the outspread remover, and thus prevent the rapid volatilization of the active removing agents. Obviously even the proximity of the powerful heat of a torch would melt the wax, and release the vapors naturally rising from a compound of alcohol and benzol — and by the inventor’s evidence it is these vapors that cause the especial danger of the compound when near fire. There had been two earlier, but small blazes on-the very day of disaster, thought (as we read the evidence) to have been caused by the blowtorch, yet men using both means of removing varnish and paint worked, not perhaps side by side, but in what we are compelled to think dangerous proximity. The court below found that the immediate cause of final fire was the blazing of cotton waste, which, soaked with alcohol or benzine, was used to wipe off the remover, and then thrown down on deck; although buckets were provided for holding such waste. This is probably true, but what caused the remover-soaked waste to blaze is the vital inquiry. The only cause suggested by the evidence is the blowtorch, and the maintenance of that probable cause in proximity to so much inflammable material was 'itself negligence. ' Liability is measured by the known [859] dangers to be guarded against, and if care according to the circumstances is wanting, the natural inference is that injury accrues from the known danger — it is caused by the lack of care. The blowtorch near remover and waste was negligence, the danger of fire was well known, and we find adequate cause proximately existing in that negligence for the ensuing loss. The Strathdon (D. C.) 89 Fed. 374; Brown v. Standard, etc., Co., 247 Fed. 303, 159 C. C. A. 397. Taking up the second question, it is to be noted that whatever contract was made rests wholly in parol. The talks which preceded libel-ants’ sending the St. Louis and other of their vessels to respondents’ yard were between the president and secretary of respondents and president and vice president of libelants. First the respondents’ officers saw the president of libelants and the scale of prices was agreed on in principle; but there is no suggestion that directly or indirectly was it then agreed, or even mentioned, that any variation was to be made from the usual arrangement of bailment, inferable from sending a ship to a repair yard. Respondents’ whole case depends on what happened, between the two officers of respondents and the vice president of libelants when they subsequently met. The secretary testified (his president corroborating) : “I toid (the vice president) that these rates (i. e., the prices suggested to libelants’ president) did not include any insurance ; that we would not assume any of the risks that could be covered by insurance.-’ He did not testify that libelants’ vice president in terms agreed to this, but declared the latter officer’s reply or comment was that his own “insurance would be in effect.” Nor was any contract then concluded, but according to respondents’ evidence the vice president “thanked us for coming over, and asked us to leave our schedule of rates with him. * * * He said he would let us know.” And there was nothing-about release from such liability as this in the schedule, and the matter was concluded by sending the ships to the yard. This whole case, thus far, depends therefore on whether respondents said, and libelants heard, understood and agreed to the words above quoted. The vice president of libelants certainly categorically denied hearing or understanding any such proposition, and in our judgment denied as positively as any man of good manners could in dealing with an old acquaintance — that respondents’ secretary ever uttered it. Much is sought to be made of fhe fact that some weeks after the St. Louis had gone to the yard of respondents, they talked over the much larger job of reconditioning the Leviathan with libelants’ president; he then acting for the United States Shipping Board. At this talk respondents signified their willingness to do the work on Leviathan on the same “basis,” or the same “terms and conditions” as in the matter of the St. Louis, and they agreed to a form of words (drawn by counsel present) that if they did the work the owner of Leviathan, i. e., the “United States will assume all risks on the steamer and materials delivered to the contractors ordinarily coverable by insurance.” It is difficult for us to see the competency of this evidence; but when it is observed that the libelants’ president knew nothing at all of what [860] had occurred between his vice president and respondents’ officers, that the paragraph drawn by counsel differs widely from the phrase so carefully testified to by respondents’ officers as having been used in their dealings with libelants, and that the answer verified by respondents’ president departs from both versions of what the Fletchers wanted, we are clear that the Leviathan incident casts no light on the St. Louis agreement. We will assume that a contract giving to respondents the benefit of libelants’ marine insurance (one of the pleaded versions and utterly unsupported by any evidence), or a contract .that the bailee would assume no liability growing out of risks ordinarily, or that could be insured against, would be legally enforceable between the parties, if it is a real meeting of minds, made on due consideration. Santa Fe, etc., Co. v. Grant, 228 U. S. 177, 33 Sup. Ct. 474, 57 L. Ed. 787; McCormick v. Shippy, 124 Fed. 48, 59 C. C. A. 568. Cf. C. J. vol. 6, p. 1112, and cases cited. But the question here is (to vary the form first above stated) have the respondents proved'that such an agreement was made — for the burden is on them to prove it. This is true generally from the nature of a bailment, and particularly here, because respondents pleaded this defense affirmatively. Furthermore it cannot be forgotten that the substance of the plea is that respondents aver that they were freed from the consequences of their own negligence. They can be, when, no cohsiderations of public policy prevent (The Oceanica, 170 Fed. 893, 96 C. C. A. 69, certiorari denied 215 U. S. 599, 30 Sup. Ct. 400, 54 L. Ed. 343), but, however the contract be stated on behalf of respondents, there is no verbal allusion to negligence in it. To be sure, freedom from negligence liability may result from such words, but somehow or other the meaning must be plain; not perhaps to a layman, but certainly to a lawyer (Santa Fe v. Grant, supra), and to that lawyer the language used must be clear and unambiguous, it must reveal not only the design of one party, but the intention of both parties (McCormick v. Shippy, supra, at page 51; Price v. Union, etc., Co., [1904] 1 K. B. 412; Mynard v. Syracuse, etc., Co., 71 N. Y. 180, 183, 27 Am. Rep. 28; North American, etc., Co. v. Cincinnati, 172 Fed. 214, 97 C. C. A. 32; Ten Eyck v. Director General [C. C. A.] 267 Fed. 974, certiorari denied 254 U. S. 646, 41 Sup. Ct. 14, 65 L. Ed. 455). By assumption, not decision, it may be agreed that even if libelants did consent to any of the forms of words suggested by respondents in evidence or answer, or to .the form used by the court below (that respondents should not be liable for losses ordinarily coverable by marine insurance), the question of fact remains: Has it been affirmatively proved that such agreement was made in clear and unambiguous language? We feel assured that it has not been proved. ' Decree reversed, with costs, and cause remanded, with directions to assess libelants’ damages. Footnotes [1] The nature and properties of this remover were testified to by its inventor. The inflammability of a composition of alcohol, benzol, and wax need not be dwelt- upon. The patent once covering the same (Ellis, 714SS0) was considered and upheld by this court in Chadeloid, etc., Co. v. Wilson, 224 Fed. 481, 140 C. C. A. 189. The remover was and is equally efficacious for paint as for varnish. It was intended to supplant the use of “blowtorches,” and to- do away with what Coxe, J., called “the dangers of the torch method” of taking off old brush applied wood coverings.