119 F. 118 | 9th Cir. | 1902
In 1898 the appellee, owner of the steamer Del Norte, chartered her tO' the appellant Townsley for a term commencing on the 6th day of June of that year and ending on the 6th day of October, 1898, under which charter the vessel was delivered to Townsley, who retained possession thereof until about September 3, 1898, when, because of his failure to pay the rent stipulated by the charter to be paid, the owner, the Crescent City Transportation Company, took possession of the vessel. Thereupon Townsley libeled the ship for damages, alleging that he had suffered certain specified losses and damages by reason of the misconduct of the master and steward of the ship and the dishonesty of the master during the time she was under charter to him. The transportation company filed a cross-libel against Townsley for rent alleged to be due it from him under the charter party, which cross-libel was answered by Townsley, denying the claim made for rent, and the claimant of the ship answered the libel, denying the alleged losses and damages to the libelant. The judgment below was against the libelant’s claim for damages, and in favor of that of the cross-libelant for rent, 111 Fed. 542.
The case depends upon the question whether the master and stew
“That the said party of the first part [the owner], for and in consideration of the covenants and agreements hereinafter contained on the part of the party of the second part, to he kept and performed by the said party of the second part, does hereby charter, let, and hire to the said party of the second part the whole of the steamship Del Norte, now lying at the port of Seattle, her tackle, apparel, furniture, machinery, appurtenances, and appliances, for the term commencing on the 6th day of June, A. D. 1898, and extending to and including the 6th day of October, A. D. 1898. Said vessel to be employed during the term of this charter party in plying between the port of Seattle, Washington, and ports, islands, and places in the territory of Alaska.”
The second article provides that the vessel shall be delivered to the charterer at Seattle in good order and repair. The third article declares that the owner shall protect the vessel from all liens and claims of liens on account of debts contracted prior to the date specified for her delivery to the charterer. The fourth article specifies the rent to be paid by the charterer, and the dates, places, and' manner of payments, and provides that in case of nonpayment the owner may retake possession of the vessel. It also provides for the forfeiture in that event of a specified sum to the owner as damages. The fifth article declares that should the vessel receive such damage as to disable her, by reason of which the charterer is actually deprived of her use for the purpose for which he would otherwise have used her, no charter money shall be earned during the time of such deprivation, but that the wages and sustenance of the crew shall continue to be borne by the charterer, and that:
“In the event of the loss of said steamer from any cause, or in case said vessel shall from any cause be damaged to such extent as not to be worth repairing in the opinion of the master, this charter party shall immediately cease.”
By the sixth article it is provided that the charterer shall not be liable for reasonable wear and tear of the vessel or her equipment, and that all damage to the steamer arising from collision, by reason of
By the supplemental agreement of June 10, 1898, the owner agrees that the ship may, at the option of the charterer, during the continuance of the charter party, be employed to carry freight or live stock and passengers between the west coast of Alaska and the eastern coast of Siberia, provided that safe ports must be used, and that the vessel shall not be required by the charterer to land freight or passengers at any port or place which may in any way endanger the
It is thus seen that by the contract of the parties the entire ship was let to the charterer, and the ship delivered to him, under the express and distinct agreement that he should have full charge of her; that all of the officers of the vessel, including those that it was stipulated should be appointed by the owner, should be “in all respects under the order and direction” of the charterer; and that all of the earnings of the vessel during the term, of whatever character, should belong to the charterer and inure to his sole benefit. These facts leave no room for doubt that not only the possession, but the entire control, of the ship and of all of its officers passed by the agreement of the parties from the owner to the charterer. In further confirmation of this conclusion is the covenant on the part of the charterer in the eleventh article to deliver the vessel at the expiration of the charter party to the owner at the port of Seattle in as good order and condition as she' was in at the time of the agreement, reasonable wear and damage growing out of the casualties mentioned in the sixth article only excepted. As a matter of course performance of that covenant on the part of the charterer’ necessarily presupposed that during the life of the charter the vessel should be in the possession of the charterer.
It is contended on behalf of the' appellant that the agency of the master and steward for the owner is “conclusively established” by that provision of the eleventh article of the charter party wherein it is stipulated that, for failure to pay the rent or wages agreed to be paid by the charterer, the master should, upon receiving notice of such default, at the request of the owner, take and hold possession of the vessel “for and as the representative of the party of the first part [the owner].” The correct inference to be drawn from this provision is the direct opposite of that drawn by appellant’s counsel; for the provision that the master should take and hold possession of the vessel as the representative of the owner upon the happening of the specified condition necessarily implies that prior to the happening of the desig
We are of the opinion that neither the master nor the steward of the ship can be properly regarded as the agent of the owner during the life of the charter party in question, and therefore that the owner cannot be held liable for the alleged wrongful acts of its officers. These views will be found to be supported by the cases of Gracie v. Palmer and U. S. v. Shea, above cited; Drinkwater v. Spartan, Fed. Cas. No. 4,085, 1 Ware, 145; The Aberfoyle, Fed. Cas. No. 16, Abb. Adm. 242; Winter v. Simonton, Fed. Cas. No. 17,894, 3 Cranch C. C. 104; Posey v. Scoville (C. C.) 10 Fed. 140; Donohoe v. Kettell, Fed. Cas. No. 3,980, 1 Cliff. 135; The Bombay (D. C.) 38 Fed. 512; American Steel Barge Co. v. Cargo of Coal "(D. C.) 107 Fed. 964.
The judgment is affirmed.