In re Petition of United States, 12557.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Citation: 259 F.2d 608
• Docket Number: No. 12557.,12557.
• Parties: Matter of the Petition of the UNITED STATES of America and Mathiasen's Tanker Industries, Inc., for Exoneration From or Limitation of Liability as Owners of THE USNS MISSION SAN FRANCISCO — Theodora Andanar, Widow of Thomas A. Andanar, Deceased, Etc., et al.
• Decision Date: 26 September 1958

259 F.2d 608 (1958)

Matter of the Petition of the UNITED STATES of America and Mathiasen's Tanker Industries, Inc., for Exoneration From or Limitation of Liability as Owners of THE USNS MISSION SAN FRANCISCO — Theodora Andanar, Widow of Thomas A. Andanar, Deceased, Etc., et al.

No. 12557.

United States Court of Appeals Third Circuit.

Argued June 5, 1958.

Decided September 26, 1958.

Abraham E. Freedman, Philadelphia, Pa. (Joseph Weiner, Freedman, Landy & Lorry, Harold Leshem, Philadelphia, Pa., on the brief), for appellants.

Leavenworth Colby, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen., Leonard G. Hagner, U.S. Atty., Samuel D. Slade, Harold G. Wilson, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is a companion case to our No. 12,556, In the Matter of the Petition of Oskar Tiedemann for Exoneration From or Limitation of Liability. The opinion in that appeal was filed today, 259 F.2d 605.

Appellants' first point that this petition proceeding was improperly commenced in the District Court for the District of Delaware is the same as raised by them in Tiedemann. For the dispositive reasons stated in the Tiedemann opinion, we hold that the District Court for the District of Delaware has jurisdiction of this action.

There remains appellants' contention that Mathiasen's Tanker Industries, Inc., was not entitled to move for limitation of its liability.

We are here dealing with an express, written contract. Appellants insist that under it Mathiasen was neither owner nor charterer of the tanker. They cite our decision in Jones & Laughlin Steel Corporation v. Vang, 3 Cir., 1934, 73 F.2d 88, as their authority. In that case no one knew whether the original contract had been oral or written. Its amendments were oral. As the court stated, page 91, the decisive element was that the contract was one for "storage service and storage use". The opinion states that the intention of the parties must appear, there must be evidence of actual charter and that the parties intended to establish the relationship of charterer. But we do not read that opinion as demanding that the words "charter" or "charter party" be present in a contract in order for the person taking over the operation of the ship to be considered a charterer or temporary owner. In the Jones & Laughlin contract the only words touching the involved barge were "barge service" which concerned the stated storage service and use. While we do not consider that decision contrary to our view of the present problem, in any event, because the question there concerned a mere bailee who was nothing else, the court's comment on charters and charter parties and its text book references in connection therewith were not decisional.

The agreement before us indicates a far different situation. In it Mathiasen agreed to "* * * equip, fuel, supply, maintain, man, victual and navigate the tankers." It agreed that all tankers turned over to it "* * * shall be redelivered to the Government in such condition as to the Government may specify * * *." It agreed that "The contractor shall procure all personnel necessary to fill the complement of each tanker * * * the officers and members of the crew shall be subject only to orders of the Master or contractor * * * (and) shall be employees of the contractor at all times and not of the government * * *." Under the article entitled "Insurance-Liability to Third Parties", it agreed that "The Contractor shall procure from and maintain with a reputable carrier, approved by the Government, such available insurance as the Government * * * shall direct." And paragraph (d) of that article reads: "For the purpose of this Article, all officers and members of the crew of said tankers and of any other ships owned by, or operated by or for, the Government, and any other personnel employed in any capacity by the Government, shall be deemed to be third parties, and not employees of the Government."

Jones & Laughlin, supra, at page 91, defines a charter party as "a specific and * * * express contract by which the owner lets a vessel or some particular part thereof to another person for a specified time or use." We agree with the district court that the contract languge above quoted presents a clear picture of exclusive possession and management of the tanker in Mathiasen. Appellants argue that the fact Mathiasen was to be reimbursed by the government for its operational expense eliminated the former as having manned, victualed and navigated the tanker in the manner called for by 46 U.S.C.A. § 186.¹ Regarding this we repeat with approval Judge Wright's language in the district court:²

"The court cannot agree with this view for several reasons. First, there was always the possibility the government would deny that the expenditures were within that class which were entitled to reimbursement. Furthermore, the seamen and other third parties could took only to Mathiasen for remuneration. Moreover, all contracts contemplate recovering cost and merely because it is specifically provided for by contract should not taint the agreement. Finally, the provision reads at its `own expense or procurement.\' It is quite evident that Mathiasen, at the least, procured these elements. So viewed, Mathiasen comes within the statutory provisions."

As we see it, Mathiasen's role under the contract partakes of the nature of both charterer and owner pro hac vice. Either...