Hansen v. EI Du Pont de Nemours & Co.

• Decision Date: 31 May 1929
• Docket Number: No. 229.,229.
• Citation: 33 F.2d 94
• Court: U.S. Court of Appeals — Second Circuit
• Parties: HANSEN v. E. I. DU PONT DE NEMOURS & CO., Inc.

33 F.2d 94 (1929)

HANSEN v. E. I. DU PONT DE NEMOURS & CO., Inc.

No. 229.

Circuit Court of Appeals, Second Circuit.

April 8, 1929.

Disposition Confirmed Without Opinion May 31, 1929.

Bond, Schoeneck & King, of Syracuse, N. Y. (William H. Button, of New York City, and Clarence R. King, of Syracuse, N. Y., of counsel), for appellant.

Hancock, Dorr, Spriggs & Shove, of Syracuse, N. Y. (Henry S. Fraser, of Syracuse, N. Y., Bigham, Englar & Jones, of New York City, and Edward L. O'Donnell, of Utica, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

We have no doubt that the boats were not delivered upon a demise, but upon a charter to carry the powder to Buffalo. It may indeed be true that the barges were demised when originally delivered with only one bargee in charge, and that this continued until the written contract was made, or perhaps thereafter until the tug took them in tow and began the voyage. As to that, however, we say nothing, for before the fire the rights of the parties had already been defined by the written contract, which we see no reason to interpret as changing the normal relations between owner and shipper. This is especially true as to the tug, whose hire was to be "for use of towing" the barges. Standing alone, we cannot see how there could so far be any doubt. To be sure the payments are spoken of as "rentals," just as the barges themselves were "rented," but equivalent words have often been held consistent with a charter. Morgan v. U. S., 14 Wall. 531, 20 L. Ed. 738; New Orleans-Belize Co. v. U. S., 239 U. S. 202, 36 S. Ct. 76, 60 L. Ed. 227. The libelant relies upon U. S. v. Shea, 152 U. S. 178, 14 S. Ct. 519, 38 L. Ed. 403, but the charter was there of an especial kind, not limited to the "use" of the boat (page 189 of 152 U. S. 14 S. Ct. 522), and allowing the government to substitute other vessels at the owner's expense. It was for this reason held to be a "contract for vessels," from which the implication was drawn that the charterer was to have "management and control."

Concededly this is the determining circumstance, though it is not always easy to determine who really has that management and control. We start, however, with the general presumption that the owner does not mean to put his vessels into the possession of the charterer (Reed v. U. S., 11 Wall. 591, 601, 20 L. Ed. 220, Auten v. Bennett, 183 N. Y. 496, 501, 76 N. E. 609, 5 Ann. Cas. 620), and that the presence of his own crew on board is "very strong presumptive evidence" that he does not, which only "very cogent circumstances" will overthrow (per Story, J., in Certain Logs of Mahogany, Fed. Cas. No. 2559). Moreover, the charter was for a voyage; the boats were not delivered for the charterer's general purposes, as in U. S. v. Shea, supra, and The Charlotte (D. C.) 285 F. 84, affirmed 299 F. 595 (C. C. A. 2).

Viewed generally, there was therefore no reason, at least as to the tug, for saying that the ordinary relations imposed in such cases did not obtain here. Moreover, some of the language chosen by the libelant strongly corroborates this conclusion. There could have been no occasion for throwing upon the charterer all risks of the cargo if the instrument had been a demise. It is true that even then the seaworthiness of the vessels would still have been warranted, and that might give a possible justification for the clause, but it went further than this. The charterer assumed all risks without limitation, a provision certainly out of place in a demise. More might indeed be said for the libelant's position as respects the barges, and, as we have already said, perhaps their original delivery was on a demise; but when the tug was added, and the contract became one to carry the cargo to Buffalo, the relations became what they would have been, had this been the original agreement. Thereafter the flotilla was a single means of transportation, by which the respondent's property was to be taken from one place to another.

Nor do we attach any significance to the fact that the respondent hired another barge and added it to the flotilla. That may have been under its "management and control" (Hastorf v. Long C. C. A. 239 F. 852, and Dailey v. Carroll C. C. A. 248 F. 466), but the mere fact that it added a third barge to the tow did not change its relation to the other vessels. The rule that barges, when let with bargees, are demised, is confined to those which have no motive power of their own.

Any liability must therefore depend upon the conduct of Kavanaugh while in charge of the cargo. To show this the libelant relies upon the original stowage of the powder, Kavanaugh's inattention to the actions of the crew, and his positive assent to nailing the engine upon a case of powder. The...