McCormick v. Shippy

• Decision Date: 01 December 1902
• Citation: 119 F. 226
• Parties: McCORMICK v. SHIPPY.
• Court: U.S. District Court — Southern District of New York

119 F. 226

McCORMICK v. SHIPPY.

United States District Court, S.D. New York.

December 1, 1902

Alexander & Ash, Robert D. Benedict, and Mark Ash, for libellant.

Perkins & Jackson, Charles C. Burlingham, and Edward C. Perkins, for respondent.

ADAMS District Judge.

This is an action brought by the libellant, as owner of the steam yacht 'Rapidan,' against the respondent, as charterer of the yacht, for the loss of the yacht on Cape Henlopen, on the 10th day of September, 1901. The agreement between the parties was contained in a charter party of which the following is a copy:

'Time Charter.

'This agreement made and concluded upon in the City of New York the 23rd day of March, 1901, between R. Hall McCormick owner of the screw steam yacht Rapidan, of Oswego, N.Y., of 82 tons gross register and 58 tons net register and provided with the proper certificate for hull and machinery and valued at $20,000, and Henry L. Shippy, Treasurer charterer,

'Witnesseth: that the said owner agrees to let and the said charterer agrees to hire the said steam yacht from Aug. 15th, 1901, to September 15th, 1901, to be placed at the disposal of the charterer at New York, N.Y., and being on her delivery right, staunch, strong and fitted for service, including necessary equipment, to be employed as a private yacht for use on the coast and inland waters of the United States north of Cape Hatteras as the charterer shall direct, on the following conditions:--

'1. That the charterer shall provide and pay for all coal, port charges, pilotage, provisions, wages of crew, deck, engine room and other necessary stores and all other charges whatsoever and shall maintain the yacht in a thoroughly efficient state, in hull and machinery, for and during the service. The yacht to be delivered in commission by the owner.

'2. That the charterer shall assume no responsibility for loss or damage to the yacht.

'3. That the charterer shall accept and pay for all coal in the yacht's bunkers at the time of delivery and that the owner shall on expiration of this charter party pay for the coal left in the yacht's bunkers at the current market prices at the port of New York.

'4. That the charterer shall pay for the use and hire of said yacht the sum of $3,500, Thirty Five Hundred Dollars, commencing on and from the day of her delivery as aforesaid and at and after the same rate for any additional time; hire to continue until her delivery in like good order and condition to the owner, unless lost, at New York, N.Y.

'5. Payment of hire to be made in cash, in advance, as follows:-- The full charter price on delivery of yacht to charterer and in default of such payments, the owner shall have the privilege of withdrawing said yacht from the service of the charterer without prejudice to any claim the owner may otherwise have on the charterer in pursuance of this charter.

'6. That should the yacht not be ready on or before August 15th, 1901, charterer to have the option of cancelling this charter at any time not later than day of yacht's readiness.

'7. That should the yacht be lost, hire paid in advance and not earned, reckoned from the day of her loss, shall be returned to the charterer.

'8. That should any dispute arise between the owner and the charterer, the matter in dispute to be referred to three persons in New York, one to be appointed by each of the parties hereto and the third by the two so chosen.

Their decision or that of any two of them shall be final. And for the purpose of enforcing any award, this agreement may be made a rule of the court.

'9. Penalty for non-performance of this contract shall be the estimated amount of damages. R. Hall McCormick, Owner.

Frank Bourne Jones. Charterer.

Witness.

Witness.

Charter extended to Oct. 31st for $3000 additional as per agreement.

June 10th, 1901. P 437 Letter Book 34. Aug. 16th Recd $6500.00 on the above being

1901 the full amt of the charter money.

R. Hall McCormick.'

The yacht was delivered to the charterer at New York on the 15th day of August, who ran her from that time until she was lost. The libel alleges, and the answer denies, that the respondent was in sole charge of the vessel at the time she was lost; that she was lost while she was in the possession of the respondent and being navigated by him and in consequence of his negligence and his failure to fulfill the terms of the contract in providing a competent master and crew, or licensed pilot, and in manning and equipping the vessel and maintaining her in an efficient state. Further answering, the respondent relies for exoneration upon the terms of the contract, particularly wherein it was provided that though the charterer was to pay the wages of the crew, the vessel was to be delivered in commission by the owner and that the respondent should assume no responsibility for loss or damage to the yacht, and alleges that the yacht was delivered to the respondent in commission under the command of a master and manned by officers and crew selected and hired by the libellant, all of whom, with unimportant exceptions, continued to serve on the yacht until she was lost and that at all times the yacht remained under the command of the said master and at no time did the respondent, either personally or by any agent, take charge of the yacht or any part in her navigation. It is further alleged that the loss was due to perils of the seas.

I find that the yacht was delivered to the charterer in conformity with the provisions of the contract and remained under the charge of the master who had been for some time before employed by the owner when the yacht was in his own service and who was regarded by him...