The Carroll
248 F. 475
2d Cir.
1917
Check Treatment
HOUGH, Circuit Judge

(after stating the facts as above). That the charter party was a demise, and made the New England Steamship Company a bailee, admits of no doubt. There was not even the usual hiring of the boat and taking the master with her, he remaining under owner’s pay, which we have repeatedly held to constitute a demise in respect of harbor craft. Hastorf v. Long, etc., Co., 239 Fed. 852, 152 C. C. A. 638; Monk v. Cornell, etc., Co., 198 Fed. 472, 117 C. C. A. 232. This scow master was entirely the servant of the charterer ; the charterer appointed and controlled him; that he came with the boat is not decisive. Hahlo v. Benedict, 216 Fed. 303, 132 C. C. A. 447. The New England Company was therefore by its contract liable for failure to return the Panay in good order and condition, unless her injury or' loss was occasioned by some act of the owner, or of one for whom the owner was responsible, or by a cause excepted in the charter party. These exceptions are understood to mean such causes of injury as could not be prevented or avoided by the exercise of that ordinary skill and care covenanted for by the charterer — if not implied from the nature of the agreement.

That barges without motive power are daily insured from injury by *477removing them to more sheltered berths is a matter of common knowledge. Danger of this kind may be, and commonly is, avoided by the exercise of this ordinary care and skill. Therefore the libel must be sustained against the New England Steamship Company, unless the injury was caused (a) by the negligence of the master, who (b) at such time was the servant or agent of the owner. Since, as above pointed out, this master was for all purposes the charterer’s master, it makes no difference to this libelant whether he was negligent or not. Therefore that defense fails, although it may be said in passing that we perceive no fault in him.

Though Norton, Lilly & Co. were the agents of the steamship', the evidence proves .that, after they had issued to the New England Steamship Company the “permit” for cargo, they had nothing more to do with the management or berthing of barges like the Panay. That matter was in charge of the -lessees of the wharf at which the steamer lay, whose employe gave directions as to" how barges should be unloaded and where they should lie while awaiting their turn. He it was who employed and directed the Carroll to put the Panay where, on the following day, she was injured by storm. This wharfinger is not a party to this suit, and therefore the question of negligence on his part is not before us. The Carroll was not even called upon to produce evidence in the -court below, and it is plain that her relation to the injured barge terminated when in calm weather she placed the Panay where ordered by the wharfinger’s agent.

The decree below is affirmed, with costs to all the appellees.