Burkholder v. United States, 71.
| Decision Date | 09 June 1944 |
| Docket Number | No. 71.,71. |
| Citation | 56 F. Supp. 106 |
| Parties | BURKHOLDER v. UNITED STATES et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
Dorfman & Levitan, of Philadelphia, Pa., for libellant.
Gerald A. Gleeson, U. S. Atty., J. Barton Rettew, Jr., Asst. U. S. Atty., and Rawle & Henderson, all of Philadelphia, Pa., for the United States and War Shipping Administration.
The libellant, a member of the crew of the S. S. William C. Atwater, was injured, while the ship was docked at Havana, by the breaking of a ladder which he was descending to the dock. He filed a libel in personam against the United States, the War Shipping Administration (the charterer of the vessel), and the Fall River Navigation Company (the owner), charging negligence in failing to provide a safe place to work, failing to provide competent co-employees and superior officers, failing to inspect appliances and in failing to maintain the vessel and appliances in a seaworthy condition.
The government respondents have filed exceptions and exceptive allegations, setting forth the charter in extenso.
I am of the opinion that the exceptions must be sustained.
I agree with the libellant that the mere fact that the charter calls itself a time charter and provides specifically that it is not to be construed as a demise of the vessel, does not conclusively determine its character. Nor are provisions in the charter purporting to limit the liability of either party for tort claims or to apportion such liability effective against an injured third party, if the character of the relationship or the laws of the United States impose liability in some other way. But this is plainly a time charter and nothing else. The provisions specifically pointed out by the libellant do not change its character or take it out of the general rule that the charterer under a time charter is not liable to third persons for the torts of the owner or his agents.
The clause, "The Master (although appointed by the Owner) shall be under the orders and directions of the Charterer as regards employment, agency, and prosecution of the voyages;" or one similar to it, was passed upon by the Circuit Court of Appeals for the Second Circuit in Worrall v. Davis Coal Co., 122 F. 436, and held not to make the charterer liable to such claims. See also Wehner v. Dene Steam Shipping Co., 1905, 2 K.B. 92 in which a charter party containing the clause was held not to amount to a demise of the ship.
Clause 23, which provides that, in the event that continued employment of the master or any member of the crew appears to be prejudicial to the interests of the United States in the prosecution of the war or if the United States is dissatisfied with their conduct the owner shall make changes necessary in the appointments, does not make the master the charterer's man. On the contrary the clause plainly recognizes the owner's right to hire and discharge. The charterer itself cannot discharge objectionable personnel. It has only a contract right against the owner in this regard. Nor has the charterer any right to select a new master or a member of the crew to take the place of one so discharged. The provision obviously has to do with potential disloyalty or treason in a vital war service and has no reference to the skill, capacity or experience of the ship's complement, as seamen.
Clause 19, providing that the owner shall not be responsible for damage resulting from various causes mentioned unless due to its actual fault or privity, does not even purport to be an assumption by the charterer of liability for third party damage claims. It has to do with claims by the charterer against the owner for failure to perform, the subject matter being "any loss or damage or delay or failure in performing hereunder." That is, the charterer may not hold the owner responsible for loss to it arising from negligence of the master, mariners, etc., in carrying out the charter obligations, unless the owner is directly involved.
The libellant contends that the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., gives him the right to maintain this action against the United States and the Shipping Administration solely by virtue of the latter's possession of the vessel and ownership of the cargo and without regard to the...
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