Stoufflet v. Cenac Towing Company, Admiralty—No. 4682.

• Decision Date: 25 November 1964
• Docket Number: Admiralty—No. 4682.
• Parties: Ernest J. STOUFFLET, Jr. v. CENAC TOWING COMPANY, Inc.
• Court: U.S. District Court — Eastern District of Louisiana

236 F. Supp. 198

Ernest J. STOUFFLET, Jr. v. CENAC TOWING COMPANY, Inc.

Admiralty—No. 4682.

United States District Court E. D. Louisiana, New Orleans Division.

November 25, 1964.

Philip Henderson, A. Deutsche O'Neal, O'Neal & Waitz, Houma, La., for libelant.

George B. Matthews, Lemle & Kelleher, New Orleans, La., for respondent.

Admiralty—No. 4682, Division "C".

WEST, District Judge.

This libel is brought by Ernest J. Stoufflet, Jr., owner of the barge ES-2, seeking recovery of the value of the barge which he claims was sunk and lost while chartered to respondent Cenac Towing Company, Inc. The libel is defended on the grounds that respondent, Cenac Towing Company, Inc., was not the charterer of the barge, but was acting only as a broker, and that therefore, it, respondent, is not liable for damages caused by the sinking of the barge while it was actually under charter to Delta Marine Divers, in whose custody it was at the time of the sinking. After hearing the testimony, and after carefully weighing the evidence introduced, it is the opinion of this Court that respondent, Cenac Towing Company, Inc., was, in fact, the charterer of the barge ES-2 at the time of the loss, and that respondent is therefore liable to libelant for the damages caused by the sinking and loss of the barge ES-2. In connection with this holding, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. During all times pertinent hereto, the barge ES-2 was owned by libelant, Ernest J. Stoufflet, Jr.

2. The barge ES-2 was built for libelant by the Siracusa Ship Yard in Morgan City, Louisiana, in January, 1957, at a cost to libelant of $10,800. It was 60 feet long, 24 feet wide, and 5 feet deep, and constructed to handle both deck cargo and water storage below.

3. In May of 1957, libelant delivered the barge ES-2 to respondent's landing in Houma, Louisiana. It was not returned to libelant until January of 1958. During that time, while the barge was in the custody of the respondent, Cenac Towing Company, Inc., libelant was receiving from respondent, for the use of said barge, an average monthly income of approximately $300. Whether this income resulted from the respondent's use of the barge, or whether it resulted from respondent's sub-chartering the barge to others was of no concern to libelant. The monthly payments for the use of the barge were remitted directly from respondent to libelant, and libelant looked to no one other than respondent for the monthly payments for the use of the barge.

4. The charter agreement between libelant and respondent was entirely oral. In accordance with an oral agreement between libelant and respondent, respondent was to keep the barge ES-2 in his fleet, and was to pay libelant the sum of $10 per day for every day the barge was used. It was immaterial to libelant whether the barge was used by the respondent itself, or by someone to whom respondent sub-chartered the barge. It was respondent's obligation, pursuant to an oral charter agreement, to pay libelant the agreed price of $10 per day for each day the barge was in use. Usually, when respondent sub-chartered the barge to others, it charged the sub-charterer $15 per day, out of which respondent remitted the agreed amount of $10 per day to libelant, and respondent retained the excess of $5 per day. Libelant had no control over the price respondent charged for the sub-charter of the barge. Libelant's only concern was that, pursuant to his agreement with respondent, respondent would pay to libelant the sum of $10 a day for each day the barge was in use. If respondent itself used the barge, it simply paid libelant the sum of $10 per day for each day's use. If it chartered the barge to someone else, respondent remitted to libelant $10 for each day the barge was used out of the total amount received by respondent from the sub-charterer.

5. Libelant did not know, nor did he care, who actually used the barge. He chartered it to respondent and looked entirely to respondent for the agreed charter price.

6. In January, 1958, the barge ES-2 was returned to libelant, who had it metalized by Coastal Marine Industries, Inc., at a cost of $1,836. At the same time libelant had the Bollinger Machine Shop and Ship Yard, Inc. install zinc plates in the sides of the barge and paint the entire barge, at a cost to libelant of $419.58. Immediately after this work was completed, in February, 1958, libelant returned the barge to respondent under the same agreement and arrangements as had been in effect between them prior to January, 1958.

7. Respondent continued to have the custody of the barge, insofar as libelant was concerned, until it was irretrievably sunk and lost in January, 1960.

8. In December, 1959, respondent sub-chartered the barge ES-2 to Delta Marine Divers, who took possession of it from respondent and continued to use it exclusively until it sank in January, 1960.

9. The barge ES-2 was in a seaworthy condition when chartered to respondent by libelant.

10. Respondent voluntarily paid libelant the sum of $310 for the last month that the barge ES-2 was afloat, despite the fact that it, respondent, claims never to have been paid for that period by Delta Marine Divers, to whom respondent had sub-chartered the barge. This payment was made in the same manner that all previous payments had been made, and was in accordance with libelant's oral charter agreement with respondent, i. e., that respondent would pay libelant the sum of $10 for each day that the barge ES-2 was used, either by respondent, or by someone to whom it was sub-chartered by respondent. The...