256 F. 612 | 2d Cir. | 1919
The barge Header was demised to the King Paint Manufacturing Company under the terms of the following letter:
“Kent Avenue, S. 9th, and S. 10th Sts.,
“Brooklyn, N. Y., June 2, 1916.
“Mr. J. Mulvaney, Summit, Columbia Heights, Brooklyn — Hear Sir: Confirming our numerous telephone conversations with both you and Mr. Murphy this letter will confirm the charter of barge Header for a period of six months from June 2d at a monthly rental of $300.00 per month for bare boat, barge to be returned to you in same condition as received with the usual wear and tear.
“Charter money to bo paid every thirty days.
“Thanking you for your courtesy in this matter and with kindest regards, we remain,
“Very truly yours, King Paint Mfg. Co.,
“Per Robert M. King.”
On June 2d, the King Paint Manufacturing Company subchartered the barge to the Simmons Transportation Company under the same terms, except that the rental was fixed at $387.50 per month. The barge was delivered on the same day, direct from the libelant. While thus navigated, under the terms of this charter, and on June 30, 1916, the barge was damaged by reason of the Black Tom disaster, which, concededly, was without fault on the part of the charterers. The resulting loss to libelants amounted to $599.90. A survey held on November 29th showed the chime log was split, a bottom plank was broken, and a doorsill was split. The bottom plank was damaged by the explosion at the Black Tom dock, hut the evidence is not clear as to how the damage to the chime log occurred or as to how the door sill was split. The district judge found that the damaged chime log could be seen only when the vessel was in dry dock, and rejected the testimony that it was in good condition when seen, as claimed by the witness Pritchard, in August. The record is barren of proof as to an occurrence which would cause injury while the vessel was under charter to the respondent Simmons Transportation Company. Capt. Olson, who was in charge of the barge during the entire period of the charter, states that she was not in any collision, nor was she jarred or jolted in any manner, such as might bring about an injury as that sustained to the chime log. And he says she had plenty of water. He was unable to account for the damage. It was stated that the cost of repairing would amount to $325. No evidence is offered to indicate how the damage to the doorsill occurred, but the cost of repair was given as about $10. The district judge held that the char-
“It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle. This rule was tersely stated by Mr. Justice Bradley in Clark v. United States, 95 U. S. 539 [24 L. Ed. 518], where it was said (p. 542): ‘A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the general law on the subject [citing authorities].’ ”
Where, by contract of bailment, the hirer has either expressly or by fair implication assumed the absolute obligation to return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is controlling, and must be enforced according to its terms. A bailee who assumes but the common-law liability is exempt from liability for loss of the consigned goods arising from inevitable accident. But the bailee may, however, enlarge his responsibility by contract, express or fairly implied, and render himself liable for the loss by destruction of the goods committed to his care. The bailment or compensation to be received therefor being a sufficient consideration for such an undertalcing. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99, 37 L. Ed. 1093.
In Young v. Leary, 135 N. Y. 569, 32 N. E. 607, the covenant required the vessel to be redelivered in the same condition as she is now, any ordinary wear and tear excepted. There the court said:
“When language is used which does no more than express in terms the same obligation which the law raises from the facts of the transaction itself, the party using the language is no further bound than he would have been without it.”
It would therefore appear that the charterers here are liable only to the extent of the stipulations of the contract, and in construing the contract, since the terms merely declare the liability which the common law would impose, the liability of the bailee is neither increased, nor changed, and the charterer undertook merely to return the barge after six months in the same condition as received, with the usual wear and tear. There is no obligation to do more.
We therefore conclude that such injury was that which was contemplated by the parties as due to ordinary wear and tear. The decree is therefore affirmed.