248 F. 466 | 2d Cir. | 1917
(after stating the facts as above):
The single question argued is whether under such a charter the scowmaster for any purpose, or in respect of any duty, remained the employé and therefore the agent of the man who alone had hired and could have discharged him — i. e., the scow owner. Whether under the pleadings as above outlined the point can be taken may well be doubted; but, as the matter has been discussed without any reference to the pleadings, we shall decide what the parties intended to submit.
If the man whom the owner pays and furnishes for this purpose fails (for example) to watch and arrange his lines according to the exigencies of the tide, he fails to serve the charterer just as much as the boat would fail to serve, should she be unseaworthy through no fault of the charterer. Third persons may, of course, regard charterers such as these libelants as owners, and the crew as the charterer’s crew; but, as between the parties to the contract of charter, the question may always be asked: For whom was a given employé acting when the act complained of occurred?
The point is not without direct authority. Hastorf v. Hudson, etc., Co. (D. C.) 110 Fed. 669, we affirmed upon the opinion of Judge Addison Brown, 114 Fed. 1019, 52 C. C. A. 566. That case covers the point here presented. In Hastorf v. Long, etc., Co., 239 Fed. 854, 152 C. C. A. 638, we said, of a vessel under a charter precisely like the presenj.one:
“Between tlie owner and tlie charterer in cases of such boats [i. e., harbor craft without motive power] the former is liable for any injury to the boat by reason of the negligence of her master in caring for her.”
There can be no difference between injury to the boat caused by her master’s negligence and injury by the boat similarly occasioned.
We have not overlooked Gibson v. Manetto Co., 194 Fed. 331, 114 C. C. A. 291. That case relates to an entirely different class of vessels ; our decisions have, as above indicated, rested on the nature and exigencies of harbor business only. The case of The Carroll, 248 Fed. 475, - C. C. A. -, decided this day, marks the different result when the laborer is chosen by the charterer. Hahlo v. Benedict, 216 Fed. 303, 132 C. C. A. 447, and cases cited, covers the demise of a navigating vessel.
Decree áffirmed, with interest, and costs to libelants. No costs to the city of New York.