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CLOSE v. ANDERSON

October 11, 1977

DONALD W. CLOSE and AMERICAN HOME ASSURANCE COMPANY, Plaintiffs,
v.
VINCENT ANDERSON d/b/a VINCE ANDERSON BARGE COMPANY, In Personam; and the M/V J.S. POLHEMUS, her engines, tackle, apparel, furniture and equipment, and the Barge MLC, In Rem; Defendants and Third-Party Plaintiffs, v. BURGESS CONSTRUCTION COMPANY, Third-Party Defendant



The opinion of the court was delivered by: BEEKS

 This is an action for damages suffered by plaintiff (Close) when two reels of armored cable were damaged during transport from Bellingham, Washington to a project on which Close was working in Snettisham, Alaska. The principal issue concerns the condition of the reels upon which the cable was wound at the time it was delivered to Anderson. The issue of damages has been bifurcated.

 Close was a subcontractor on the Snettisham hydroelectric project during late 1973 and early 1974. In order to complete the job, it needed a quantity of three conductor armored cable to replace the original cable which the Corps of Engineers had rejected. This type of cable is manufactured by General Electric Company in Bridgeport, Connecticut by special order only. In this case, it took approximately one year from the time the order was placed by Close until it was delivered to G.E.'s warehouse in Tukwila, Washington.

 G.E. was to transport the cable to Foss-Alaska, a water carrier, for transportation to Snettisham. However, Close determined that Foss would not transport the cable and it therefore searched to find another means of transport. Defendant Anderson Barge Company (Anderson) was suggested as a possible carrier by the general contractor of the Snettisham project. Upon inquiry it was ascertained that Anderson was under contract to carry heavy construction equipment to Wrangell and Juneau, Alaska for third party defendant, Burgess Construction Company (Burgess), aboard Anderson's barge, a flat open steel deck barge. Anderson orally agreed, however, to carry the two reels if there was room on his barge after the Burgess cargo was loaded. No bill of lading was issued.

 The reels, constructed of wood with reinforced flanges, were delivered to Anderson in Bellingham, Washington in apparent good condition. The flanges were painted, the inside of each being white and the outside a blue gray. They were the only protection given the cable. A heavy paper covering wrapped around the cable itself between the flanges was intended as an indicator of cable damage. It facilitated exterior inspection; if the integrity of the paper was violated, cable damage was suspected. The reels were not enclosed by steel-banded wooden lagging (slats across the entire circumference of the reels which are affixed to the outer rims of the flanges and strengthened by exterior steel bands) or any other material which would serve to protect the cable from contact damage.

 No loading instructions were given Anderson by Close or G.E. *fn1" The reels were stowed on the forward end of the barge near the bow, one on each side, after all of the Burgess equipment had been loaded. The initial loading was without incident and the tug and barge left Bellingham in early January, 1974. The reels were delivered at Snettisham on or about March 15, 1974 in a greatly damaged condition. The Corps of Engineers rejected the cable for use in the Snettisham project and it was subsequently sold for scrap.

 The duty which Anderson owed to Close depends on whether it was a common or private carrier. I find the latter.

 There exists some confusion as to what constitutes a common carrier. Many respected authorities declare that the test "appears to be whether the cargo is shipped by a single shipper or by two or more." *fn2" A close examination of the cases indicates that whether a carrier transports the cargo of more than one shipper on a particular voyage is merely one factor to be considered. In Liverpool & G.W. Steam Co. v. Phenix Ins. Co.3 The MONTANA was a general ship carrying cargo and passengers on regular service between Liverpool and New York. In THE NIAGARA v. Cordes4 the Court defined a common carrier as "one who undertakes for hire to transport the goods of those who may choose to employ him, from place to place. He is, in general, bound to take the goods of all who offer . . . ." *fn5"

 The primary characteristic of a common carrier is that he holds himself out to the public as one who is ready and willing to undertake the transportation of goods generally. *fn6" One instance of a private contract carrier transporting the cargo of two shippers does not, in and of itself, transform that carrier into a common carrier. *fn7"

 Anderson usually chartered its barge to a single shipper and undertook to carry Close's cargo more or less as a favor to Close since Anderson was going to be within the vicinity of Snettisham while delivering Burgess' equipment. There is no evidence that Anderson held itself out as a common carrier, nor that its tug and barge constituted a general ship. Furthermore, Anderson had filed no tariff schedules as a common carrier. It also appears that Anderson could have legitimately refused to carry the reels. Accordingly, Anderson was not a common carrier.

 "In private contracts of affreightment, the relationship between the parties is that of bailor-bailee . . . ." *fn8" Thus Anderson was not an insurer of the cargo as is a common carrier, and owed Close only a duty of due care. *fn9"

 Close correctly contends that it is entitled to a presumption of negligence since it delivered the reels to Anderson in apparent good condition and they were delivered by Anderson at destination in damaged condition. *fn10" However, Anderson has presented evidence sufficient to rebut the presumption. The cable was so insufficiently packaged for mid-winter transport by barge to Alaska that damage was inevitable.

 According to G.E. and Close, reels of armored cable should be transported only in a vertical position to prevent the flanges from being broken due to the great weight of the cable. If reels are stowed in a horizontal position where the reel is resting flat on one flange, the weight of the cable will cause the flange to be pressed against the interior cable as the reel is lifted from a flat to a vertical position, thus frequently causing cable and flange damage.


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