Hahlo v. Benedict

• Decision Date: 11 June 1914
• Docket Number: 289.
• Parties: HAHLO et al. v. BENEDICT. BENEDICT v. HAHLO et al.
• Court: U.S. Court of Appeals — Second Circuit

216 F. 303

HAHLO et al. v. BENEDICT.

BENEDICT v. HAHLO et al.

No. 289.

United States Court of Appeals, Second Circuit.

June 11, 1914

Peter S. Carter, of New York City, for appellant.

J. P Kirlin, of New York City, for appellees.

Before COXE and ROGERS, Circuit Judges and HAND, District Judge.

HAND District Judge.

The first question is of liability, Which party is responsible for the losses which arose from the stranding? This question is to be determined by the charter party itself. The stipulations of the respondent are contained in the sixth article:

'The charteree (charterer) agrees * * * to redeliver the yacht * * * on the expiration hereof at New York, N.Y. in as good condition as that in which he received her, reasonable wear and tear and such damage as he may not be liable to make good excepted * * * and should the charteree not then so redeliver the yacht he agrees to pay demurrage.'

The seventh article is as follows:

'The charteree (charterer) agrees to pay for * * * any loss to the yacht or equipment * * * not covered or recoverable under the policy of insurance hereinafter provided for or which may have occurred from any cause other than one arising out of the breach of conditions set out in paragraph 1 of this agreement.'

The ninth clause reads as follows:

'The captain shall pay the charteree (charterer) the same attention as if he were the owner and take the yacht where ordered by the charteree within the limits of navigation specified in the policy of insurance.'

The obligation of the charterer under article sixth to redeliver the boat is without condition, and courts might have held that he undertook by the stipulation in question to redeliver the boat regardless of whose servant the captain might be. Sun P. & P. Co. v. Moore, 183 U.S. 642, 22 Sup.Ct. 240, 45 L.Ed. 366. However, it is recognized that it would be unreasonable to require absolute compliance by the charterer, if the reason for noncompliance was the fault of the owner's servant. Hence all the cases consider that question and have implied such condition into the agreement to redeliver. The ninth article certainly intends to substitute the charterer for the owner, during the term of the charter; that is to say, it subjects the captain to the same direction from the charterer as he would be bound to give the owner were it not for the charter. In the face of this provision it becomes of small consequence who originally engaged the captain, provided the stranding resulted from his fault. In Hills v. Leeds (D.C.) 149 F. 878, and The Del Norte, 119 F. 118, 55 C.C.A. 220, the offending servant had been in fact selected by the owner, but he was under the control of the charterer. In the Del Norte, the phrase was 'under order and direction' of the charterer. In Hills v. Leeds, supra, the phrase was:

'The hirer is to have the same authority as the owner of the boat so far as regards the management of the yacht and the control of the captain and engineer, and that, in the event of either of them proving disobedient or incompetent, the hirer shall have the right to discharge him or them, and engage others in their place.'

Although more expanded than the clauses of article ninth of this charter, the intent is the same as here. In The Barnstable, 181 U.S. 464, 21 Sup.Ct. 684, 45 L.Ed. 954, it is true that the charterers had appointed the crew, but the test was who had control during the charter. The same thing is true in Baumvoll v. Gilchrest, L.R. (1892) 1, Q.B. 253. There Lord Esher says, at page 259, that the question depends upon--

'whether the owner has by the charter, where there is a charter, parted with the whole possession and control of the ship, and to this extent that he has given to the charterer power and right independent of him and without reference to him to do what he pleases with regard to the captain, the crew, and the management and employment of the ship.'

Mr. Justice Story, in Marcardier v. Insurance Co., 8 Cranch, 39, 49, 3 L.Ed. 481, puts the test in these words, 'exclusive possession, command, and navigation.' The same thing is repeated in Reed v. United States, 11 Wall. 591, 600, 20 L.Ed. 220. In Leary v. United States, 14 Wall. 607, 610, 20 L.Ed. 756, the phrase is, 'entire command and possession of the vessel and the consequent control over her navigation. ' This test seems to be approved in United States v. Shea, 152 U.S. 178, 14 Sup.Ct. 519, 38 L.Ed. 403. We cannot doubt, therefore, that the master was the agent of the owner at this time, and we do not think it material who actually selected or employed him. That being true, there is no reason to except the charterer from the covenant of the sixth article.

The next question is of the negligence of the master, because the sixth article of the charter exempts the charterer from any damage which he may not be liable for and the tenth article exempts him from his hire in case the yacht is incapacitated by damage or accident for which he is not responsible, and he would not be responsible if the loss happened from inevitable accident or peril of the sea. It must be a very clear case which would hold it an inevitable accident for a vessel to run ashore on a known coast two hours after sunrise in open weather. It may seem now too simple to say that the cause was the yacht's running too near inshore, but that in fact is the whole story, and carries its own blame along with it. There was no necessity to bring her so near the reef, and there was all the more danger if a haze or smoke obscured the exact position of the land. The master does not pretend that the reef on which she stranded was unknown or even uncharted; it is true that the exact position of the rock that she struck was not charted, but everybody knew that the bottom off the Colorado Reef was not laid down with the exactitude of the East river. To bring her deliberately inshore under those circumstances was to take a chance of just what actually happened. Some question has been made of the easterly set of the tide on the Island of Cuba. This seems to be a possible explanation, but masters are responsible for known currents, and it is not suggested that there was anything unknown, or at least unknowable, about this particular current. If they navigate in waters which are not known, they should keep a leeway of safety. We do not understand that any one claims there was a greater easterly set that day than usual. It therefore appears that the charterer is liable under the stipulations contained in the sixth and seventh articles of the charter.

The next question relates to damages. In making up the general average statement adjustment was made between what supplies were consumed at Havana, or on the way there, and the rest. These wages and supplies were treated as part of the salvage service, upon the theory that it was necessary to proceed to Havana as a port of refuge for inspection before the Virginia could safely go to New York. As such they fell within Risley v. Ins. Co. of N.A. (D.C.) 189 F. 529. However, only so much could be brought into general average as were...