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IN RE HOWARD

October 7, 1943

Petition of HOWARD; THE CHAS. P. GREENOUGH; THE THOMAS H. O'LEARY; THE AGNES HOWARD; THE KATHERINE HOWARD


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

The petition was brought for exoneration from, or to limit liability for the loss of the cargo of coal owned by the claimant, Shawmut Coal & Coke Company, Inc., laden on the barge Katherine Howard, and the cargo of coal owned by the claimant, Metropolitan Coal Company, laden on the barge Thomas H. O'Leary.

The petitioner Thomas J. Howard was the owner of the barges Katherine Howard and Thomas H. O'Leary, and the charterer in possession, by oral charter, of the tug Chas. P. Greenough from the petitioner William G. Howard who was the owner thereof.

 The tug Chas. P. Greenough left New London, Connecticut, on the afternoon of December 4, 1940, with the box barges Thomas H. O'Leary, Katherine Howard and Agnes Howard in tow tandem in the order named. Each of the three box barges had taken on a cargo of coal at a New Jersey port, and was bound in tow of the Chas. P. Greenough to the port of Boston, Massachusetts.

 After leaving New London, the tug Chas. P. Greenough, and her tow passed through Fishers Island Sound, and out by Watch Hill into Block Island Sound, and proceeded in an easterly direction toward their destination.

 During the evening of December 4th, the Katherine Howard broke away from the Thomas H. O'Leary, and subsequently became a total loss, as did also the Agnes Howard.

 After the middle and stern barges broke adrift, the tug Chas. P. Greenough headed for Point Judith Breakwater, but the Thomas H. O'Leary filled up and sank at a point said to have been about two miles westerly of the entrance to Point Judith Breakwater.

 We are not concerned with the Agnes Howard, as no claim for loss of her cargo has been filed in this proceeding.

 The bargees, or captains of the Thomas H. O'Leary and the Katherine Howard, signed bills of lading for the cargoes in question on their respective barges, but the charter-parties constituted the contracts of carriage, and not the bills of lading.

 Before the cargo in question had been loaded on the barge Thomas H. O'Leary, the petitioner, Thomas J. Howard, had entered into a written charter-party with the claimant Metropolitan Coal Company, which covered the carriage of the cargo of coal in question (Metropolitan Ex. 2).

 That charter-party contained the following provisions:

 "The acts of God, dangers and accidents of the sea, and navigable waters, * * * breakdown of engines, boilers, and/or machinery (either of Tug or Barge), * * * or any other cause whatsoever beyond the control of the Charterers, Owner, Barge, or Tug always excepted. It is also agreed that this Charter Party and all shipments hereunder are subject to the provisions of and exemptions from liability contained in the Act of Congress of the United States approved February 13, 1893, entitled 'An act relating to navigation of vessels,' etc., [46 U.S.C.A. § 190 et seq.] and the supplements thereto, and of Sections 4282 to 4287 each inclusive of the U.S. Revised Statutes, [46 U.S.C.A. §§ 182 to 187] which provisions and exemptions shall extend to and govern the liability of the Barge and/or Tug, and/or Owners and/or Agents to the cargo loaded on the Barge and/or to the Owners of the said cargo.

 "If the Owner and/or Agents shall have exercised due diligence to make the Tug and/or Barge in all respects seaworthy and properly manned, equipped and supplied, neither the Owner or Agents, nor said Tug and/or Barge shall be liable for any loss of, or damage to cargo resulting from fault or negligence of the pilot, master or crew in the navigation of the Tug and/or Barge, or from latent or other defects, or unseaworthiness of said Tug and/or Barge, whether existing at the time of shipment or at the beginning of the voyage but not discoverable by due diligence; * * *."

 Before the cargo on board the Katherine Howard, which was being carried for the claimant Shawmut Coal & Coke Company, Inc., was loaded thereon, oral arrangements were made by it and the petitioner Thomas J. Howard, and thereafter and on or about November 22, 1940, before the said cargo was loaded on said barge on November 25, 1940, a written charter-party was forwarded by the said petitioner to said claimant and retained by said claimant without noting any objection to its terms.

 It contained the following provisions:

 "The acts of God, dangers and accidents of the sea, and navigable waters, * * * breakdown of engines, boilers and/or machinery (either of Tug or Barge), * * * or any other cause whatsoever beyond the control of the Owner, Barge or Tug always excepted. It is also agreed that this Charter Party and all shipments hereunder are subject to the provisions of and exemptions from liability contained in Section 3 of the Act of Congress of the United States approved February 13, 1893, entitled 'an act relating to the navigation of vessels,' etc. 46 U.S.Code 192 [46 U.S.C.A. § 192], and the supplements thereto and of Sections 4282 to 4287, each inclusive, of the United States Revised Statutes, and that the provisions, exemptions and limitations of liability in said Statutes shall extend to and govern the liability of the Barge and/or Tug and/or Owners to the cargo loaded on the Barge and/or to the Owners of said cargo. The Owner does not by implication, or otherwise, warrant the seaworthiness of the Barge or the towing vessel."

 "If the Owner shall have exercised due diligence to make the Tug and/or Barge in all respects seaworthy and properly manned, equipped and supplied, neither the Owner nor said Tug and/or Barge shall be liable for any loss of, or damage to cargo resulting from fault or negligence or errors of navigation of the pilot, master or crew in the navigation of the Tug and/or Barge, or in the care and custody of the cargo, or from latent or other defects, or unseaworthiness of said Tug and/or Barge, whether existing at the time of shipment or at the beginning of the voyage; * * *."

 The said petitioner having thus given notice to the claimant, Shawmut Coal & Coke Company, Inc., on what terms he would furnish tug and barge service, the said claimant actually accepted such terms and entered into a special contract incorporating them when it ordered such service without protest. The Oceanica, 2 Cir., 170 F. 893; Ten Eyck v. Director General of Railroads, 2 Cir., 267 F. 974, certiorari denied 254 U.S. 646, 41 S. Ct. 14, 65 L. Ed. 455; Sun Oil Co. v. Dalzell Towing Co., Inc., 2 Cir., 55 F.2d 63, affirmed 287 U.S. 291, 53 S. Ct. 135, 77 L. Ed. 311.

 Under these circumstances the papers signed by the Barge Captains, denominated bills of lading, were merely receipts and do not express the terms of the carriage. The William I. McIlroy, D.C., 37 F.2d 909, affirmed 2 Cir., 45 F.2d 1023; The G.R. Crowe, 2 Cir., 294 F. 506, 508; Flat-Top Fuel Co., Inc., v. Martin, 2 Cir., 85 F.2d 39, 41.

 The petitioner Thomas J. Howard was a private carrier. The entire capacity of each of the barges was given to the shippers, and no cargo other than that of the claimant shipper was carried, therefore, the petitioner Thomas J. Howard was not a common carrier, but a bailee, and the contract of carriage was a private contract of carriage. The Fri, 2 Cir., 154 F. 333, 338; The William I. ...


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