The Del Norte

• Decision Date: 31 October 1901
• Citation: 111 F. 542
• Court: United States District Court, District of Washington, Northern Division
• Parties: THE DEL NORTE. v. TOWNSLEY. CRESCENT CITY TRANSP. CO.

111 F. 542

THE DEL NORTE.

CRESCENT CITY TRANSP. CO. v. TOWNSLEY.

United States District Court, D. Washington, Northern Division.

October 31, 1901

Pratt &amp Riddle and James Kiefer, for libelant.

Preston Carr & Gilman, for claimant and cross libelant.

HANFORD District Judge.

After rendering a decision upon the merits in these cases, the court granted a rehearing and admitted further proof, and now, upon due consideration of the additional evidence and arguments, the court finds it necessary to revise its decision.

The amended libel alleges losses to the charterer, of which I have made the following condensed statement:

Beef and potatoes negligently wasted . . . $2,048.99

Barge Mildred abandoned at Juneau . . . $4,000.00

Two days' unnecessary detention at Juneau of steamer $500.00

False expense voucher . . . $257.50

Four days' unnecessary detention at St. Lawrence Bay $1,000.00

Failure to collect freight on goods carried from St. Lawrence Bay

to Unalaklik . . . $3,000.00

Two days' unnecessary detention at Dutch Harbor . . . $500.00

Cash collected for extra meals and retained by captain . . . $112.50

Removal of cabins and reduction of passenger accommodations, and

knocking down of fares by captain . . . $15,636.00

Carrying passengers and freight gratis . . . $685.00

Two anchors and one winch removed from barge Mildred . . . $125.00

Stores confiscated when steamer was taken from charterer's possession . . . $300.00

Wrongfully taking steamer from charterer 27 days before expiration

of charter . . . $10,000.00

That part of the libelant's claim which is for losses alleged to have been caused by or resulting from the incompetence and misconduct of the captain and steward is based upon an assumption that the master and steward must be considered as agents of the general owner, and that the ship and owners are liable to the charterer for all losses and damages arising either from their incompetence, or malfeasance in their respective stations. The claimant and cross libelant repudiates the agency of the captain and steward during the time the vessel was in the service of the charterer, and insists that those officers were the charterer's servants, and that the vessel cannot be held liable to the charterer for any loss occasioned by their incompetence or misconduct, and that there can be no personal liability of the owner for such loss. Therefore the question as to which of the contending parties must suffer for the alleged mismanagement of the vessel while she was in the charterer's service must be decided before it becomes necessary to investigate the charges made against the officers, and the relation of the parties towards each other and towards the officers intrusted with the management of the vessel must be ascertained and fixed by a true interpretation of the charter party. In the opinion of the supreme court, by Mr. Justice Clifford, in the case of Reed v. U.S., 11 Wall. 591-600, 20 L.Ed. 220, it is stated that:

'Affreightment contracts are of two kinds, and they differ from each other very widely in their nature, as well as in their terms and legal effect. Charterers or freighters may become the owners for the voyage, without any sale or purchase of the ship, as in the cases where they hire the ship, and have, by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner retains the possession, command, and navigation of the ship, and contracts for a specified voyage,-- as, for example, to carry a cargo from one port to another,-- the arrangement in contemplation of law is a mere affreightment sounding in contract, and not a demise of the vessel, and the charterer or freighter is not clothed with the character or legal responsibility of ownership. Unless the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner retains the possession, command, and navigation of the ship, is the agent of the general owners, and the mariners are regarded as in his employment, and he is responsible for their conduct. Courts of justice are not inclined to regard the contract as a demise of the ship, if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer; but where the vessel herself is demised or let to hire, and the general owner parts with the possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and, if need be, he may appoint the master, and ship the mariners, and he becomes responsible for their acts.'

The same distinction and the same rule for determining whether a charterer is to be treated as the owner of the ship during the life of the charter party are recognized and applied in nearly all of the decisions cited upon the argument of this case. See Marcardier v. Insurance Co., 8 Cranch, 39, 3 L.Ed. 481; The Gracie v. Palmer, 8 Wheat. 605, 5 L.Ed. 696; Leary v. U.S., 14 Wall. 607, 20 L.Ed. 756; Shaw v. U.S., 93 U.S. 235, 23 L.Ed. 880; U.S. v. Shea, 152 U.S. 178, 14 Sup.Ct. 519, 38 L.Ed. 403; Donahoe v. Kettell, Fed. Cas. No. 3,980; The Aberfoyle, Fed. Cas. No. 16; Certain Logs of Mahogany, Fed. Cas. No. 2,559; Drinkwater v. The Spartan, Fed. Cas. No. 4,085; Eames v. Cavaroc, Fed. Cas. No.

4,238; Hill v. The Golden Gate, Fed. Cas. No. 6,492; Mott v. Ruckman, Fed. Cas. No. 9,881; Richardson v. Winsor, Fed. Cas. No. 11,795; Webb. V. Peirce, Fed. Cas. No. 17,320; Winter v. Simonton, Fed. Cas. No. 17,894; The Volunteer, Fed. Cas. No. 16,991; Posey v. Scoville (C.C.) 10 F. 140: The T. A. Goddard (D.C.) 12 F. 174; Anderson v. The Ashebrooke (C.C.) 44 F. 124; The Euripides (D.C.) 52 F. 161; Steamship Co. v. Washington, 6 C.C.A. 313, 57 F. 224; The Alvira (D.C.) 63 F. 144; The Nicaragua (D.C.) 71 F. 723; Id., 18 C.C.A. 511, 72 F. 207; The Terrier (D.C.) 73 F. 265; Bramble v. Culmer, 24 C.C.A. 182, 78 F. 497; The Elton, 31 C.C.A. 496, 83 F. 519; McGough v. Ropner (D.C.) 87 F. 534; American Steel-Barge Co. v. Cargo of Coal (D.C.) 107 F. 974; Dest. Shipp. & Adm. Sec. 205; 7 Am.& Eng.Enc.Law (2d Ed.) 174-194. In some of these cases it was decided, in accordance with the rule stated, that the charterer was owner pro hac vice, and in others the charterer was found to be not such owner. I have not separated one class from the other, because it would be useless to do so, since both give equal support to the general rule. The only apparent departure from the rule which casts upon the charterer who receives possession of the ship and has full control of her operations the responsibility of ownership and liability for the conduct of the captain and crew, which has been brought to my notice, is the case of The Craigallion (D.C.) 20 F. 747. I am not disposed to criticise that decision, as the facts upon which it was based appear to have been peculiar. It is enough to say that one decision by a district court sustaining a suit in rem against a chartered vessel by the charterer for damages to the cargo, caused by the negligence of the officers and mariners in the performance of their ordinary duties, as such, while the vessel was in the possession and control of the charterer, is not sufficient to outweigh the great weight of authority, which, in my judgment, establishes a fixed rule of law inconsistent with any right in an owner pro hac vice to hold the ship or her general owner liable to him for losses attributable to torts or crimes of the master or crew. The Daniel Burns (D.C.) 52 F. 159. The Bombay (D.C.) 38 F. 512. In such a case the charterer is himself responsible for the torts of the master, because, having a legal right to control, he is legally presumed to actually control, the master's conduct. On the other hand, the general owner is not responsible, because he does not have the right to control the master in the performance of his duties. Wood, Mast. & S. Sec. 281.

Having in view the law applicable to this case as settled by the above authorities, it is not a difficult matter to ascertain which of the parties to the cause now before the court should be held responsible for the conduct of the captain and steward of the Del Norte as to the several matters alleged in the libel. The charter party is set forth in the pleadings of both parties, and there is no controversy as to its exact terms. The contract is in writing, and the parties to it are the Crescent City Transportation Company, which will hereafter be referred to as the 'owner,' and T. F. Townsley, heretofore and hereafter referred to as the 'charterer.' The first article provides: That the owner, for and in consideration of the covenants and agreements of the charterer to be kept and performed, does hereby charter, let, and hire to the charterer the whole of the steamship Del Norte, her tackle, apparel, furniture, machinery, appurtenances, and appliances, for the term commencing on the 6th day of June, 1898, and extending to and including the 6th day of October, 1898; said vessel to be employed during the term of this charter party in plying between the port of Seattle, Wash., and ports, islands, and places in Alaska. The second article provides that the vessel shall be delivered to the charterer at Seattle in good order and repair. The third article provides that the owner shall protect the vessel from all liens and claims of liens on account of debts contracted prior to the date specified for her delivery to the charterer. The fourth article specifies the rent to be paid by...