Rideout

Involving two libels for the loss of a cargo of sugar and flour transported on the barge Rideout No. 7, this is an appeal from a decree of dismissal. The trial court found that failure to deliver was caused by the capsizing of the barge, which capsizing, in turn, was “proximately caused by the unexpected and 'freak’ storm encountered in San Pablo Bay.” In other words, the court below held that the appellee carriers were excused from liability because the existence of a “peril of the sea” had been established by them.

The libel of the California & Hawaiian Company is against both appellees for.tho failure to deliver 4,506 bags of refined sugar received on board the barge at Crockett, Cal., on May 25,1929, destined for San Francisco. The libel of the Sperry Flour Company is limited to E. V. Rideout only; the Bay Transport Company, the other appellee, not being a party to the contract of affreightment. The Sperry Company’s libel alleges that, also on May 25, 1929, it delivered 415 sacks of feed and 26 sacks of flour to the Rideout barge, at Vallejo, Cal., likewise for transportation to San Francisco.

Appellees admit the receipt and the nondelivery of the shipments, but urge as…