116 Misc. 502 | N.Y. Sup. Ct. | 1921
The facts in this case are not in dispute and upon the trial both sides moved for a direction of verdict.
The plaintiff was the owner of a coal barge named Lloyd, and on the 1st day of July, 1919, chartered the said coal barge to Hartmann-Blanchard Co., Inc., from July 23, 1919, until April 1, 1920, at the rate of ten dollars per day. Said barge was to be used to carry coal in the vicinity of New York harbor and Hudson river, or any place covered by the regular harbor insurance policy. All towage and wharfage charges while under this charter were to be paid by the' charterer, Hartmann-Blanchard Co., Inc. The plaintiff, owner, agreed to keep the boat in repair, and to arrange and pay insurance on the bottoms.
On December 4,1919, during the term of the charter party, the barge Lloyd was, at the request of the charterer, Hartmann-Blanchard Co., Inc., taken in tow by one of the defendant’s tugs, and at about five-thirty a. m. on December 5, 1919, the barge was in collision with another tug of the defendant, named the John E. Berwind; by reason of the collision ¿the barge was damaged, the reasonable cost of the repairs, concededly being $1,790; with nineteen days’ loss of the usable value of the boat, amounting to $190, and the resulting towing of the barge, at the expense of the plaintiff, of $40.
Prior to the collision in question and oh September 2, 1918, the director-general of railroads, operating the Pennsylvania railroad and acting on behalf of the United States railroad administration, sent to Hart- . mann-Blanchard Co.,. Inc., the charterer of the boat, by registered mail the following notice:
“ Office foot of Cortlandt Street,
“ New York, N. Y., September 2nd, 1918.
Gentlemen.— We beg to inform you that it has become necessary for us to cease being responsible for vessels while in tow of our tug. On and after September 11th, 1918, the following conditions will apply to all work accepted and performed by tugs owned, employed or chartered by the Pennsylvania Railroad Company:
“All towing is done at the risk of the tow. Neither we nor the tugs employed in the service nor the owners shall be responsible for any damage done to the tow through negligence, and the masters and crews of the tugs, in the performance of the towage service shall become the servants of, and identified witli the vessel or the craft towed, whether singly or with other vessels owned by you and in possession of charterers, and to the shifting of vessels in and around piers and in slips.
<< yery truly yours,
“ D. C. Chase,
“ Su-p’t. Steam Toioing.”
This notice was received by Hartmann-Blanohard Co., Inc., on September 3, 1918.
Thereafter on the 4th day of December, 1919, the charterer gave an oral order to the defendant to tow .the plaintiff’s barge Lloyd from Stanton street, East river, to South Amboy.
The contention of the defendant is that conceding the negligence of the defendant arising out of the collision of the tow with another tug belonging to the defendant, that it is exonerated from liability by reason of the notice sent by the director-general of railroads to the charterer, as above set forth.
Since the respective property rights of the bailor and the bailee in the thing bailed are separate and distinct, the clause in the contract of towage must be limited in its application to exempting the defendant from liability for damage to the property rights of the bailee only. This must necessarily be so unless it be assumed that a bailee is an agent of the bailor, with authority to contract away the latter’s property rights. No authority for such agency in the bailee has been found by me nor has any been pointed out by counsel. The case of Ten Eyck v. Director General of Railroads, 267 Fed. Repr. 974 (C. C. A. 2) does not
Judgment is directed in favor of the plaintiff in the sum of $2,020, with interest from December 5, 1919, and the costs of this action.
Judgment for plaintiff.