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THE NORTHERN NO. 29

February 24, 1936

THE NORTHERN NO. 29; FLAT-TOP FUEL CO., Inc.,
v.
MARTIN



The opinion of the court was delivered by: INCH

INCH, District Judge.

On Motion for Reargument.

Respondent moves for a reargument.

 By its decision the court refused to sustain the defense interposed by respondent as to his right to limit liability.

 The libelant was allowed to recover against respondent for the loss of a cargo of coal which sank with the barge Northern No. 29, in the Atlantic Ocean, at a place opposite a point in New Jersey, while the barge was being towed from Norfolk to Connecticut. Both the barge and the coal were total losses. The respondent owned the barge. The libelant owned the coal.

 There was no contract between respondent and libelant. Respondent had chartered the barge, for a consideration, to a third party, who, in turn, had subchartered it to libelant, and the latter had the coal loaded on the barge at Norfolk, and respondent there gave a receipt for the coal to libelant, in the form of a bill of lading prepared by libelant, and signed by the duly authorized representative of respondent.

 Shortly after the barge was loaded and without proof that the loading was excessive or not properly carried out, and while the barge was being towed at sea with no untoward weather or water conditions, the barge gave up and sank. The court found that the barge was unseaworthy when she broke ground. The court likewise held that, in the circumstances, respondent was not entitled to limit its liability, and cited the recent case of Cullen Fuel Co., Inc., v. W.E. Hedger, Inc., 290 U.S. 82, 54 S. Ct. 10, 78 L. Ed. 189.

 Respondent has asked for this reargument on the ground that refusal of this right was error, and urges the aforesaid authority is not in point, for the reason that in said suit there was a contract between the parties while there was none here.

 This motion for reargument is now denied for the following reasons:

 The Cullen Case, to be sure, was a suit where a contract existed, while none exists here. But that case cited a number of other cases, from all of which it would seem that the theory applicable to this case is made sufficiently clear without the necessity for further citation.

 It has been said: "The liability which the Act of Congress designs to limit is that which the law imputes to the ship owner by reason of his relation to the ship, her master and crew, not that liability which he voluntarily assumes by express contract. It is the liability imposed by law. * * *" Section 476, p. 567, vol. 1, Benedict on Admiralty (5th Ed., McCloskey).

 The liability, therefore, of respondent is that imposed by law either with or without the presence of a contract.

 Thus the Supreme Court in Capitol Transp. Co. v. Cambria Steel Co., 249 U.S. 334, 39 S. Ct. 292, 63 L. Ed. 631 (a case mentioned in the Cullen Case), fairly indicates that the liability may arise outside of a contract and states "in addition" a finding of the presence of contract.

 Where the respondent "expressly" warrants the seaworthiness, the Capitol Case justifies a refusal of this right. Where an "implied" warranty arises from the circumstances and the subject matter of the contract, the Cullen Case justifies such refusal, on condition that such implied ...


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