Gibson v. Manetto Co.

PARDEE, Circuit Judge (after stating the facts as above). Taking the written contract between the parties — and we do not find. it materially varied by action Of the parties thereunder — we are of opinion that there was such a demise of the schooner Emma Eliza as put the respondent company in complete control of the same and rendered it responsible for damages resulting to the schooner through its negligence. The general rule is that, where the owner parts with the possession, command, and navigation of the ship, the- hirer becomes the owner during the term of the contract, and may appoint a master, and ship the mariners. In United States v. Shea, 152 U. S. 178, 14 Sup. Ct. 519, 38 L. Ed. 403, a suit was brought to recover damages under a contract for hiring which provided, among other things, as follows: "Article I. That the said Daniel Shea shall provide and furnish to the parly of the first part, whenever called upon during the fiscal year ending .Tune 30, 1887, such vessels of the description hereinafter given as may be required to take the place of the vessels now performing service for the U. S. army between New York City and Governor’s Island, New York, Governor's Island and Sandy Hook, and New York Harbor generally, respectively, the steamers Atlantic, Ordnance, and Chester A. Arthur. That the vessels furnished as aforesaid must each have an engineer and fireman, and conform to the following conditions, viz.: The steamer to take the place of the Chester A. Arthur must be of about the size and the character of the Chester A. Arthur, and the steamers to take the places of the Atlantic and Ordnance, respectively, must have the capacity for freight and passengers and be of the size and character of the steamer James Bowen. That all the vessels furnished must be staunch, in first-class order in every respect, well equipped, and conform fully to the requirements of the law. It is fully agreed that the fuel required l>y said vessels so furnished, while in service under this agreement, shall be supplied by the government, and that this contract shall commence on the 1st day of .Tidy, 1880. And it is further agreed that the party of the second part shall furnish, when required, the remainder of the crew, consisting of a captain, a mate, two deck hands, and a fireman.” In passing upon that case the court declared the law as follows: "Tills case turns upon the construction to he given t'o the contract of May 28, 1880. taken in connection with the action of the parties thereunder. Was this a contract of hiring or for service? In Reed v. United States. 11 Wall. 594, 600 [20 L. Ed. 220], It was said by Mr. Justice Clifford, speaking for the court: Affreightment contracts are of two kinds, and they differ from each other very widely in their nature, as well as in their terms and legal, effect. Charterers or freighters may become the owners for the voyage, without any sale or purchase of the ship, as in cases where they hire the ship, and have by the terms of the contract, an’d assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner retains the possession, command, and navigation of the ship, and contracts for a specified voyage, as, for example, to carry a cargo from one port to another, the arrangement in contemplation of law is a mere affreightment, sounding in contract, and not a demise of the vessel, and the charterer or freighter is not clothed with the character or legal responsibility of ownership. * * * Courts of justice are not inclined to regard the contract as a demise of the ship, if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer; but where the vessel herself is demised or let to hire, and the genefhl owner parts with the possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and, if need be, he may appoint the master and ship the mariners, and he becomes responsible for their acts.’ “And subsequently, in Leary v. United States, 14 Wall. 607, 610 [20 L. Ed. 756], Mr. Justice Field thus discussed the question: ‘If the charter imrty let [334] the entire vessel to the charterer, with a transfer to him of its command and possession and subsequent control over its navigation, he will generally be considered as owner for the voyage or service stipulated. But, on the other hand, if the charter party let only the use of the vessel, the owner of the same retaining its command and possession and control over its navigation, the charterer is regarded as a mere contractor for a designated service, and the duties and responsibilities of the owner are not changed. In the first case the charter party is a contract for the lease of the vessel; in the other, it is a contract for a special service to be rendered by the owner of the vessel. * * * All the cases agree that entire command and possession of the vessel, and consequent control over its navigation, must be surrendered to the charterer before he 'can be held as special owner for the voyage or other service men-† iioned. The retention by the general owner of such command, possession, and control is incompatible with the existence at the same time of such special ownership in the charterer.’ ” The court further said: “No technical words are necessary to. create a demise. It is enough that the language used shows an intent to transfer the possession, command, and control. * * * A demise may be for a day as well as for a year, and may be terminable at the will of the lessor. The pay, by the fourth article, was to be ‘for each vessel employed.’ Not only this, but the conduct of the parties in the execution of the contract removes all obscurity as to its scope and meaning. As the findings show, the vessel, the James Bowen, was furnished by petitioner, and was accepted and used by the defendants. During the time of its use it was under the exclusive management and control of the defendants. The very condition resulted which is the purpose and effect of a demise — the transfer of the exclusive possession, management, and control. The vessel was not, when injured, returned to the petitioner, but, when the repairs were finished, ‘resumed work.’ It is insisted by the defendants that there was no demise, because, as claimed, the petitioner did not contract to furnish one vessel for any length of time, and, could, if he wished, change vessels. It is doubtful whether that is a correct interpretation of the instrument, and whether it was in the power of the petitioner, after a vessel had been tendered and accepted by the government, to substitute another therefor. But, even if it were so, the substituted vessel would pass into the exclusive possession of the government, the same as the vessel for which it was substituted. We think little significance, is to be attached to the provisions in reference to furnishing a crew or supplying fuel. They were matters of detail, affecting the price to be paid, but throwing no particular light on the question of hiring or control.” This decision seems to control this case, where it is undisputed the entire control of the schooner Emma Eliza was in the contract transferred to the respondent. We so far agree with the trial judge that the proximate cause of the loss of the Emma Eliza may have been the failure on the part of the crew of the schooner to watch the chocks, but in the management and sailing of the schooner the crew were the servants of the Respondent. Whether the trip should have-been made in the daytime, whether the boiler ought to have been carried on board at all, or whether the crew was negligent in watching the chocks, the libelants were not responsible. The proof in the-case is to the effect that the Emma Eliza was worth $2,500. Under the pleadings and evidence, the libelants should have had a decree for that amount. The decree of the District Court is reversed, and the cause is remanded, with instructions to enter a decree in favor of libelants in the sum of $2,500 and for all costs.