The opinion of the court was delivered by: ABRUZZO
The Conners-Standard Marine Corporation, the libelant, is the owner of a barge called the Ben Ticknor. The libel alleges that this barge was chartered to the respondents, Marine Fuel Transfer Corp. and Charles Valentine, by telephone and confirmed later by letter. It appeared at the trial that there was no evidence as against the respondent, Charles Valentine, and by consent the libel was dismissed without costs as to him.
It appears that the Ben Ticknor was being towed to Revere, Massachusetts, by the tug A. J. McAllister. This barge was loaded with oil, being a dumb steel barge having no means of supplying steam heat to oil in her tanks. She did have coils with connections through which steam could be passed to heat her cargo from the outside. This barge was loaded with oil at the Patchogue Oil Terminal, Brooklyn, New York, on March 17, 1950, and when she left for Revere had a one-foot freeboard. It encountered severe, stormy weather enroute through the Long Island Sound. During this bad weather the barge lost a great deal of its deck equipment and fittings overboard. Water got into the engine room and pump room through the ventilator, the exhaust, and the open metal gratings above the engine room. It was conceded that the cargo of oil was not in any was damaged. The tow left at 6 p.m. on March 17th and arrived at New London, Connecticut, between 8 and 9 p.m. of March 18th.
The respondent Marine Fuel Transfer Corp. after the commencement of this libel suit impleaded the tug A. J. McAllister. In this impleader it alleged that the damages sustained by the Ben Ticknor were by reason of the negligence of the tug A. J. McAllister. Marine Fuel Transfer Corp. also raised the contention that the damage to the Ben Ticknor was caused by the negligence of the captain of that barge. In any event Marine Fuel Transfer Corp. lays blame on the Ben Ticknor and/or the A. J. McAllister.
For the purpose of understanding exactly what must be decided, reference will be made in this opinion to the libel by Conners-Standard Marine Corporation against Marine Fuel Transfer Corp. and the impleader of the tug A. J. McAllister as problem No. 1. The Marine Fuel Transfer Corp. not only impleaded the tug A. J. McAllister but cross-libeled the Conners-Standard Marine Corporation. The basis of that particular cross-libel is to recover expenses allegedly sustained by the Marine Fuel Transfer Corp. from Conners-Standard Marine Corporation because of the delay when the barge reached Revere, Massachusetts, in discharging this cargo of oil. This presents problem No. 2.
The tug A. J. McAllister, the claimant-impleaded, is not a party to the cross-libel and is, therefore, not concerned with problem No. 2.
By stipulation of all the parties it was conceded that both of these matters be tried at the same time.
For the purpose of brevity, Conners-Standard Marine Corporation will hereinafter be referred to as Conners, Marine Fuel Transfer Corp. as Marine, and the tug A. J. McAllister as McAllister.
Four witnesses were called. Joseph F. Herrman was the vice president of Conners and arranged the charter of this barge with Charles Valentine of Marine. George Hamp was the Marine superintendent of Marine. Suerr Knutsen was the captain of the barge Ben Ticknor. William F. Geiger was the acting master of the tug McAllister.
It is conceded that Marine chartered the barge Ben Ticknor from Conners at the agreed price of $ 185 per day for nine days. Libelant's Exhibit 1 of March 16, 1950, contained the clause that the barge was to be 'returned to us in the same condition as when received, less ordinary wear and tear.' It was returned in a damaged condition. A great deal of its deck equipment and fittings were washed overboard. Water got into the engine room and pump room through the ventilator, the exhaust and the open metal gratings above the engine room which caused a great deal of damage.
The libelant relies upon its contract of charter for recovery. It contends that the charterer is prima facie liable for the damage and has the obligation of showing that the damage did not occur either through its fault or the fault of the barge captain. Ira S. Bushey & Sons v. W. E. Hedger & Co., 2 Cir., 40 F.2d 417; O'Boyle v. United States, 2 Cir., 47 F.2d 585; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734; The E. T. Halloran, 2 Cir., 111 F.2d 571; O'Donnell Transp. Co. v. M. & J. Tracy, 2 Cir., 150 F.2d 735; Seaboard Sand & Gravel Corp. v. Moran Towing Corp., 2 Cir., 154 F.2d 399; The C. W. Crane, 2 Cir., 155 F.2d 940; North River Barge Line v. Chile Steamship Co., D.C.E.D.N.Y., 111 F.Supp. 895, affirmed, 2 Cir., 213 F.2d 884.
As said by the Circuit Court for this Circuit in O'Donnell Transp. Co. v. M. & J. Tracy, supra, in affirming a decree of this Court, 150 F.2d at page 737:
'Liability is imposed upon charterers upon the theory that they should at all times care for the barge while she is under charter to them and that they are under a duty which may not be delegated to others. While they do not warrant the safety of the barge they have an obligation to have it properly cared for by any person with whom they entrust it. * * *'
and, similarly, more recently in the case of Seaboard Sand & Gravel Corp. v. Moran Towing Corp., supra, 154 F.2d at page 402:
'It is the duty of a charterer, as bailee, to care for a vessel while it is under charter to him and he cannot delegate that duty to others. While he does not warrant the safety of the vessel intrusted to him, he does have an obligation to have her properly cared for by any person to whom he intrusts the vessel ...