The opinion of the court was delivered by: ABRUZZO
This action was instituted by the libellant to recover the sum of seventy-five thousand and no/100 ($75,000.00) dollars damages, arising out of the stranding of the barge "Tenas" on Conch Reef, about sixty miles south of Miami, Florida, while in tow of the tug "Henry W. Card", on November 26, 1941.
The issue of fact was not tried, there having been a stipulation as to the facts involved, which has been received in evidence as Exhibit No. 1.
It is undisputed that in the early morning of November 26, 1941, while the "Henry C. Card" was towing the "Tenas", loaded with phosphate rock, off the east coast of Florida, in good weather, the tug caused the "Tenas" to run aground and strand on Conch Reef. The tug was able to work herself free, but the "Tenas" was so stranded that the tug could not float her.
It is uncontradicted that the stranding of the barge "Tenas" was caused by the Master of the tug mistaking the identity of a lighthouse, as a result of which the tug changed her course too soon and the true location of the tug was not learned until after she had stranded herself and the barge.
The "Tenas" remained aground on the reef for two days and a half and was finally pulled off by another tug. The "Henry W. Card" then towed the "Tenas" to Key West, Florida, where she was inspected and surveyed and damage found. Upon the recommendation of the surveyor, the tug proceeded with the barge to Baltimore, Maryland, where she arrived on December 10, 1941, and discharged her cargo on December 11, 1941.
Thereafter, the tug, "Henry W. Card", towed the "Tenas" to Norfolk, Virginia, where she arrived on December 15, 1941 for repairs.
At the time of the occurrence of this unfortunate stranding, the "Henry W. Card", owned by the claimant, the Card Towing Line, Inc., was in the service of the libellant under the terms of a written charter party, copies of which are annexed to the libel and to the stipulation of facts.
The agreement refers tothe libellant as the "charterer" and provides that the libellant hired the tug "Henry W. Card" for a period of one year, commencing June 16, 1941, for the purpose of towing two barges owned by the libellant between United States Atlantic Coast Ports and/or United States Gulf Ports. The barges were to be the "Tenas" and the "Portsmouth" or substitutes.
The libellant was obligated to pay the claimant monthly hire.
Paragraphs "Third" and "Fourth" of the agreement provide that the claimant, owner of the tug, should at its own expense provide and pay wages and all operating expenses, and that the vessel should always be tight, staunch, strong and carry a full complement of officers and crew for the performance of the agreement.
The "Eighth" paragraph provided that in the event of the loss of use of the tug to the libellant, including stranding, payment of hire should cease for the time lost thereby.
Paragraph "Tenth", obviously the "bone" of contention herein, reads as follows: "Tenth: Acts of God, enemies, fire, restraints of Princes, rulers and peoples, strikes, riots and civil commotions, takings at sea and all other dangers and accidents of the seas, rivers and harbors, machines, boilers and navigators and errors of navigation, latent defects and unseaworthiness, not resulting from Owner's failure to use due diligence, always mutually excepted."
The libellant claims that it is clear under these provisions that the charter party did not constitute a demise of the tug to the charterer and, consequently, the navigation of the tug during the time of the charter was in the hands of the owner, and unless there was a specific exemption in the charter party, the owner would be ...