Dailey v. Carroll
248 F. 466
2d Cir.
1917
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above):

[1] There is no doubt that the oral charter of the scow Woods, even though the owner sent with it a “master” or laborer in his own pay, constituted a demise, and made the charterer a bailee. The Willie, 231 Fed. 865, 146 C. C. A. 61. This holding, repeatedly announced by this court in cases of which Hastorf v. Long, etc., Co., 239 Fed. 852, 152 C. C. A. 638, is a recent instance, has always been in respect of boats with no motive power, incapable of navigation in the sense of independently pursuing a course, and depends ultimately on the fact, commonly known, that the so called “captains” of such craft are no more than laborers'or deckhands, who cannot reasonably be looked upon as are shipmasters exercising a real command, based on statute, custom, and historic law.

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.

[2] The evidence shows the charterer in absolute control and entitled to direct the navigation and employment of the vessel. These are the indicia by which the nature of the charter party is tested and decision reached as to whether it is a demise or not. United States v. Shea, 152 U. S. 178, 14 Sup. Ct. 519, 33 L. Ed. 403. They do not conclude the point argued. That point may be illustrated by asking what was made the subject of the bailment, or what came to the bailee? Not the bare boat, but the boat and man; and just as the boat was impliedly warranted seaworthy, so the man was impliedly represented competent and careful to take care of the boat; he existed and was supplied for that purpose.

*468It is, we think, impossible to lay down any hard and fast definition as to what is comprised in the phrase “caring for a boat.” To do so would require consideration of contingencies perhaps unforeseeable, and certainly not suggested by anything in this record. Cases must largely depend upon special facts; but we may and do hold that an owner, who lets his boat and man to a chartered owner, pro hac vice thereby, in the absence of special agreement to the contrary, represents that the man or men who go with her are reasorinbly competent to attend to the care or. internal economy of the vessel in question, and further that customary cleaning, pumping, mooring, and watching are parts of such care, and watching a vessel includes watching her lines. As to mooring, cf. The Lyndhurst, 147 Fed. 110, 77 C. C. A. 336, for the rule as to fastening tow lines.

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.