Opinion
No. 84.
November 5, 1945. Motion Denied December 21, 1945. See 152 F.2d 657.
Appeal from the United States District Court for the Southern District of New York.
In admiralty. Libel by Conners Marine Company, Inc., as owner of the Scow Everett Fowler, against Petterson Lighterage Towing Corporation, to recover damages sustained by libelant's scow while under charter to respondent, wherein respondent impleaded the United States, alleging that it was the latter's negligence which caused the damage. From an interlocutory decree by which libelant was awarded damages against respondent and by which petition against the United States was dismissed, 60 F. Supp. 960, respondent appeals.
Affirmed in part and reversed in part.
Libellant sought the recovery of damages sustained by its scow, Everett Fowler, while under charter to the respondent-appellant. Appellant in turn impleaded the United States, alleging that it was the latter's negligence, as consignee, that caused the damage.
Libellant, the owner, chartered the barge to the appellant by an oral bare-boat charter, the owner's bargee being supplied. The appellant, pursuant to a contract entered into with the United States, loaded the barge with drums of gasoline, and on April 4, 1944, the barge was towed to a designated point for unloading. On coming near the docks, a United States Army Patrol boat directed appellant's tug to moor the barge beside an Army stakeboat, on the Red Hook flats. It is not clear whether the Everett Fowler was secured directly to the stakeboat or to other barges tied up at the stakeboat. The bargee, at some time not definitely stated, left the barge and went ashore; apparently there was no one on the stakeboat at the time. Later, while the barge was still secured, heavy weather came up which made her pound, and caused the injuries in question. The bargee had previously called Petterson, and told them that he thought the barge should be shifted because it was pounding. Petterson had then telephoned the Army's tug dispatcher, who advised him that he would "take care of it." The barge was subsequently moved by Army tugs, but not until after the damage had been done.
The District Court found that the respondent, Petterson, was liable for the damages to the barge, but dismissed the petition against the United States on the ground that the court had no jurisdiction. From this decision the respondent, Petterson, appeals.
Purdy Lamb, of New York City (Edmund F. Lamb and Thomas J. Irving, both of New York City, of counsel), for libellant-appellee.
Kirlin, Campbell, Hickox Keating, of New York City (Robert S. Erskine and John F. Gerity, both of New York City, of counsel), for respondent-appellant.
John F.X. McGohey, of New York City (Vincent A. Catoggio, of New York City, of counsel), for United States.
Before L. HAND, CHASE and FRANK, Circuit Judges.
Petterson, the charterer, is liable to the owner. See O'Donnell Transportation Co. v. M. J. Tracy, Inc., 2 Cir., 150 F.2d 735; there we held that a charterer is thus liable where its consignee is negligent, on the ground that the charterer must at all times care for the barge while under charter to him, and that that duty may not be delegated. The United States, the consignee, was negligent here in failing to provide a safe berth after receiving notice of the storm and of the resultant danger to the barge. Petterson's contention that it was not sufficiently shown that the owner's bargee was free from negligence lacks merit. The bargee, having notified Petterson in time to prevent the damage did all that he could reasonably be expected to do.
There was no jurisdiction, under the Public Vessels Act, 46 U.S.C.A. § 781, to entertain the charterer's petition against the United States. Canadian Aviator Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, is not in point, because the damage to the barge was not chargeable to the negligence of persons on the stakeboat, nor was it sufficiently shown that the danger was caused by pounding against the stakeboat. But the court had jurisdiction of that petition under the Tucker Act, 28 U.S.C.A. § 41(2); for an action under that statute may be maintained for the breach by the United States, as consignee, of its contractual obligation to the charterer. It is of no moment that the petition stated that it was "filed under" the Public Vessels Act. As the petition showed a cause of action, the label should be disregarded.
It follows that the United States, because of its obligations to Petterson, is primarily liable, and Petterson secondarily.
Reversed as to the United States; affirmed as to respondent Petterson.