Wyche v. Oldendorff
| Decision Date | 06 October 1967 |
| Docket Number | Civ. A. No. 5719. |
| Parties | William WYCHE, Plaintiff, v. Egon OLDENDORFF and States Marine Lines, Inc., Defendants and Third-Party Plaintiffs, v. OLD DOMINION STEVEDORING CORP., Third-Party Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Kelsey & Rabinowitz, Norfolk, Va., for plaintiff.
Vandeventer, Black, Meredith & Martin, by Walter B. Martin, Jr., Norfolk, Va., for Egon Oldendorff.
Seawell, McCoy, Winston & Dalton, by Charles R. Dalton, Norfolk, Va., for States Marine Lines.
Rixey & Rixey, by William B. Eley, Norfolk, Va., for old Dominion Stevedoring Corporation.
MEMORANDUM
Plaintiff, William Wyche, a longshoreman, was injured in an unloading operation aboard the M/S BIRTE OLDENDORFF when shoring which was allegedly improperly secured fell on him.
The suit now proceeds against M/S BIRTE OLDENDORFF, States Marine Lines, Inc., the vessel's charterer, and Old Dominion Stevedoring Corp.
M/S BIRTE OLDENDORFF was chartered to States Marine Lines, Inc., under a widely used standard form charter, Time Charter, Government Form, Approved by the New York Produce Exchange, amended October 3, 1946.
Defendant, States Marine Lines, Inc., has filed its Motion for Summary Judgment as to it, under Rule 56, Federal Rules of Civil Procedure, on the grounds that under the terms of the Time Charter, the plaintiff's deposition and applicable interrogatories there is no genuine issue of fact in dispute under which States Marine Lines, Inc., as time charterer, could be held responsible.
The relevant provisions of the Time Charter are Clauses 1, 2, 8 and 26. In brief, Clause 1 obligates the owner of the vessel to pay for all provisions and wages and to maintain the vessel. Clause 2 obligates the charterer for fuel, port charges (stevedoring), and "* * * to provide necessary dunnage and shifting boards. * * *"
Clause 8 makes it the charterer's responsibility to load, stow, trim and discharge the cargo, but under the supervision of the Captain who is appointed by the owner. Clause 26 explicitly rules out this charter being construed as a demise, or "bareboat" charter.
Since by Clause 26, this is a time charter and not a demise, it is well settled in law that Clause 8 only charges the States Marine Lines, Inc. with the obligation to bear the expense of the loading, stowage, trimming and discharge of the cargo, but leaves the duty of the actual loading and discharge with the owners. (Emphasis supplied.)
This paragraph (Clause 8) will not suffice to shift the responsibility for stevedoring operations or control of the ship to the time charterer. The cargo operations are under the control of the Captain and the charterer's obligation to pay for the cargo operation does not make it responsible for the conduct of that operation. Mondella v. S. S. Elie V., D.C., 223 F.Supp. 390 (1963). The charterer merely rents cargo space. Randolph v. Waterman Steamship Corp., 166 F.Supp. 732, 733 (E.D.Pa.1958). The time charterer only takes over her carrying capacity. Saridis v. S. S. Paramarina, ...
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