The opinion of the court was delivered by: INCH
Libelant owned a quantity of coke and it is conceded that on or about the 9th day of February, 1935, contracted with the respondent for the full capacity of the barge Blue Crest, which barge was owned by the respondent, and was to be towed, by a tug also owned by the respondent, from New Haven, Conn., to Brooklyn, N.Y. The coke was thereupon loaded on the said barge at New Haven and, while in such tow, sank by reason of a collision with another vessel in the East River. The coke was damaged. Libelant brings this suit to recover such damage.
The sole defense is that there is no liability on the part of the respondent because of the third section of the Harter Act (Act of February 13, 1893, c. 105, § 3, 27 Stat. 445, title 46 U.S.C. § 192, 46 U.S.C.A. § 192).
At the trial the parties stipulated certain facts, but the court deemed such stipulation insufficient and, therefore, at the court's request, the parties have stipulated all the material facts and these have been made the basis for the findings of the court.
The respondent was a private carrier. It was a bailee to transport the coke for hire. It was not a common carrier. None of the contracts or receipts between the parties contained any reference to the Harter Act (46 U.S.C.A. §§ 190-195).
The respondent alone seeks to read into its agreements this particular section of this legislation of Congress on the theory that such law must be deemed to have been a part of the contract.
If respondent had been a common carrier this would be done. The G. R. Crowe (C.C.A.) 294 F. 506. If a private carrier expressly so contracted for release from such liability it would be allowed to do so. Warner Sugar Refining Company v. Munson S. S. Line (D.C.) 23 F.2d 194, affirmed without opinion (C.C.A.) 32 F.2d 1021. Nothing of this sort appears here. Respondent seeks to apply a portion of this legislation (section 3 [46 U.S.C.A. § 192]) without regard to the purpose of the legislation and on the theory that it must apply by reason of "its own force" to private carriers and bailees as well as to common carriers.
The reason apparently is that this court, in a prior decision not appealed from, has held that it does so apply. The Alberta M., 60 F.2d 154 (D.C.E.D.N.Y.).
Ordinarily this would be sufficient reason for me to do likewise, as contrary decisions of this sort, in the same district, are not to be approved, as they lead to uncertainty and confusion. However, if it appears that the facts are different or that a different rule has been laid down by the Circuit Court of Appeals of this circuit, the duty remains to otherwise decide the issue presented, however reluctant the court may be not to follow the able opinion of an associate.
Such is the case here, for while the facts are similar, I think the rule of the Circuit Court of Appeals for this circuit is contrary to the decision above referred to.
Only very recently this rule has again been announced by said appellate court. In the case of The Westmoreland (C.C.A. 2) 86 F.2d 96, 97, decided November 9, 1936, the court had before it a suit involving a private carrier, in which contract the Harter Act had been expressly incorporated, but it sustained another clause possibly in conflict therewith because such parties could make their own contracts.
The following excerpt from the opinion of the court (L. Hand, C.J.) is as follows: "The charter, being for the whole barge, made her a private carrier and left the parties free to contract as they chose. The Fri, 154 F. 333 (C.C.A,2); The G. R. Crowe, 294 F. 506 (C.C.A.2); the Elizabeth Edwards, 27 F.2d 747 (C.C.A.2); The Nat Sutton, 62 F.2d 787, 789 (C.C.A.2). Thus the Harter Act was relevant only because the parties incorporated it. " (Italics mine.)
In the case now before me the question only is whether the Harter Act (46 U.S.C.A. §§ 190-195), or section 3, thereof (46 U.S.C.A. § 192), must be deemed a part of this contract of the private carrier, although never made a part thereof by the act of the parties thereto.
The above case seems to be a sufficient answer to respondent, but it is argued, based on the Alberta decision, supra, that there had been only dicta on this subject. I do not think this part of said decision in The Westmoreland can be considered a dictum. It was aimed directly at the issue of the right to make a private contract and determined that issue. To be sure this is a ...