Flint v. Robins Dry Dock & Repair Co.

• Decision Date: 07 June 1926
• Docket Number: No. 272.,272.
• Citation: 13 F.2d 3
• Parties: FLINT et al. v. ROBINS DRY DOCK & REPAIR CO.
• Court: U.S. Court of Appeals — Second Circuit

13 F.2d 3 (1926)

FLINT et al. v. ROBINS DRY DOCK & REPAIR CO.

No. 272.

Circuit Court of Appeals, Second Circuit.

June 7, 1926.

Barry, Wainwright, Thacher & Symmers, of New York City (James K. Symmers, of New York City, of counsel), for appellant.

H. Alan Dawson, of Philadelphia, Pa., and Burlingham, Veeder, Masten & Fearey, of New York City (Roscoe H. Hupper and William J. Dean, both of New York City, of counsel), for appellees.

Before ROGERS, HAND, and MACK, Circuit Judges.

MACK, Circuit Judge.

This proceeding arose out of the same accident on which the libel in rem considered in The Bjornefjord (C. C. A.) 271 F. 682, was based. We there held that the time charterer had no cause of action in rem for the estimated value of the use of the vessel for 14 days, due to the negligence of the instant respondent in letting the spare propeller fall while installing it in the ship. The basis of that decision was that instant respondent was an independent contractor properly selected by the owner; that under the charter party the steamer was properly withdrawn for repairs, and the only obligation of the owner was to return her as soon as she should have been put into an efficient state to resume service, payment of hire ceasing during the interval.

After that decision the present libel was filed to recover these same damages from respondent. Negligence and the resulting 14 days' delay are conceded; liability is, however, denied — in contract, because respondent was a stranger to the charter party, and libelants strangers to the contract for repairs; in tort, because the steamship was at no time in the possession of or being used by libelants during the two weeks' delay. Respondent further alleges that the master of the steamship made claim against it for $3,271.21, "the amount of the alleged damages accruing to said master's principals by reason of the delay of said steamship," entailed by defendant's negligence, which sum respondent paid December 7, 1917, at which date the master executed a general release, "by which release said steamship, her owners, etc., and said master discharged respondent from all actions, damages, claims, and demands whatsoever, and especially of and from all claims and demands arising out of towage and/or detention of said steamship in any way due to the breaking of said spare propeller on said vessel on or about July 31, 1917." Respondent further alleges that at the time of payment it had "no knowledge nor any information as to the exact ownership of said steamship Bjornefjord, or as to her relations by charter party or otherwise to the libelants in this case, and in making said payment to said master and in taking the release executed by said master this respondent procured said master to execute said release, as above stated, in full settlement of all the claims of said master, as master or otherwise, and all claims of the owners, etc., of said steamship Bjornefjord, to wit, all parties having any property interest in said steamship."

It appears from the evidence that the damages claimed, $33,068.98, represented the difference between the market value of the steamer for the 14-day loss of use, and $2,517.76, or thereabouts, the charter hire for that period; further, that on or about August 10, 1917, nearly 4 months prior to the execution of the release by the master, respondent was notified by appellants of their claim as "time-chartered owners" at the rate of approximately $75,000 per month for the period of detention. In the notification libelants stated: "We must accordingly advise you that we shall hold you liable and responsible for our damages either direct to us or through the owners. We will submit a statement of the damages and claims so soon as the amount is definitely known."

At the trial it was agreed that the master, if called, would testify that he was acting for the owners and made a settlement of their claim with respondent, and that in making such settlement he did not put forward the claim of the time charterers, and did not pretend to be settling that claim.

The matter is now before us on an appeal from a decree in favor of libelants for the principal sum of $32,550.57, with interest thereon from August 1, 1917, and costs.

1. There is clearly no direct liability in contract. Libelants were not parties to the repair contract, and inasmuch as they were not, and were not intended to be, the sole beneficiaries thereof, or, indeed, in any respect beneficiaries, they did not become privies thereto or entitled to sue for breach thereof, even under the most liberal rules that permit third parties to sue on a contract made for their benefit.

Neither Pennsylvania Cement Co v. Bradley Contracting Co. (C. C. A.) 7 F.(2d) 823, nor Town of Readsboro v. Hoosac Tunnel & W. R. Co. (C. C. A.) 6 F.(2d) 733, is in point. In the Cement Company Case the agreement between the city and the contractor expressly provided that the latter should be solely responsible for all physical injuries to persons or property on account of the performance of the work; in the Readsboro Case the defendant, while originally no party to the contract sued upon, expressly assumed the obligations of its predecessor in title.

2. As to a liability in tort, we are met at the threshold with an objection to the jurisdiction of a court of admiralty, based on the contention that the tort, if any, having been committed while the ship was in dry dock, was not "committed and effective on navigable waters." Gonsalves v. Morse Drydock & Repair Co., 266 U. S. 171, 172, 45 S. Ct. 39, 69 L. Ed. 228. We feel ourselves, however, concluded as to this contention by The Jefferson, 215 U. S. 130, 30 S. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907, and The Robert W. Parsons, 191 U. S. 17, 24 S. Ct. 8, 48 L. Ed. 73.

3. Judge Mayer, sitting in the District Court, held in The Aquitania, 270 F. 239, that a time charterer could recover his damages for the loss of use of a vessel during the period of its repair in a libel in rem against the ship which had negligently collided with and damaged the chartered vessel, and this though the owner of the injured vessel likewise had a libel pending in the same court to recover his damages, consisting of repair expense and loss of use during the period of repairs.

In Hines, Agent, v. Sangstad S. S. Co. et al. (C. C. A. 1) 266 F. 502, under a joint libel filed by the owner and the time charterer of the vessel damaged by collision, the time charterer, while not entitled to claim that the...