The C. R. Sheffer , 249 F. 600 ( 1918 )

HOUGH, Circuit Judge

(after stating the facts as above). [1] Assuming an agreement of carriage between scow owners and freighters, the appellants were not common carriers, for the Brick Company was given and used the full capacity of the scow, and therefore her owners were riot common, but private, carriers; i. e., bailees to transport for hire. The Fri, 154 Fed. 333, 83 C. C. A. 205, certiorari denied 210 U. S. 431, 28 Sup. Ct. 761, 52 L. Ed. 1135; The Wildeniels, 161 Fed. 864, 89 C. C. A. 58.

[2] Therefore claimant was obliged when the original seaworthiness of the Sheffer was shown to prove some act of negligence, by which those private carriers became liable for cargo damage. It is claimant’s contention that it was sufficient proof of negligence that the Sheffer lay upon the ground to her injury, or that, since brick scows often do lie aground, if was negligence not to provide a scow that could so rest on the bottom without injury to her cargo wherever she was lawfully sent. This in substance asserts that no brick scow is seaworthy — -i. e., reasonably fit for her intended occupation — -unless she can lie aground everywhere. This is going much too far. A private carrier, like other bailees for hire, is only bound to the exercise of ordinary care and skill — the reasonable skill of his calling.

It may be admitted that any vessel expected to lie aground must be reasonably fit for the contingencies of such an occupation; but it does not follow that she must therefore be strong enough to hold up a heavy cargo when an extraordinary January gale sweeps out at least two feet of water from accustomed mooring places, or that owners are bound to anticipate that in bottoms reasonably level and soft there may not be embedded hard objects that will puncture vessels resting against them. We consider it proven that the cause of damage to this vessel and her cargo was an unusual storm, which lowered the scanty waters of Newtown creek and caused the Sheffer to lie aground on a bottom for the most part notoriously soft and oozy, but. which at the place, where she lay contained some substance (possibly an old wreck or a dumped cargo) that broke in her bottom in an unusual and not to be anticipated manner. Therefore claimant has failed to show negligence, and petitioners have shown that they offered a seaworthy vessel for the service and exercised due diligence to keep her so.

The decree below is reversed, and cause remanded, with instructions to grant the prayer of the petition. Appellants will have costs in this court.