The Junior

279 F. 407, 1922 U.S. App. LEXIS 1561

• Court: Court of Appeals for the Second Circuit
• Decided: February 6, 1922
• Docket: Nos. 175-179
• Status: Published

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). There are presented no new or doubtful questions of law. The extent of damage is substantially agreed upon, and the salvage award is so plainly moderate that we do not further consider it. Question is made as to whether National Lead Company, on chartering the Junior, agreed to return her in like good order and condition as when received. We find as a fact that no such contract was made, although, as will appear, the exact form of words used in hiring the lighter is not controlling.'

[ 1 ] The applicable law is this: Lead Company chartered the boat, and the so-called captain came with her; he was appointed and paid by the owners, Boyer’s Sons; consequently the charter was exactly that of The Willie, 231 Fed. 865, 146 C. C. A. 61. Whether it would make any difference if there had been a specific agreement to return in like good order and condition need not be considered, for that agreement was never made; but on this subject see Mulvaney v. King, 256 Fed. 612, 167 C. C. A. 642, and Schoonmaker, etc., Co. v. Lambert (C. C. A.) 268 Fed. 102.

The charter being what it was. National Lead Company can be held liable only on the ground of negligence. Harms Co. v. Upper Hudson, etc., Co., 234 Fed. 859, 148 C. C. A. 457. The relation between the Junior’s owner and her charterer was exactly that exhibited in Hastorf v. Long, 239 Fed. 852, 152 C. C. A. 638, and Dailey v. Carroll, 248 Fed. 466, 160 C. C. A. 476, viz. although the charterer became owner pro hac vice, the so-called captain remained the agent 'and representative of the general owner, in so far as the care of the boat or the internal economy of the vessel was concerned.

[2] This doctrine must be applied to the following further findings of fact: The weather, and the condition of ice in the river on February 4th and thereafter, made the Gas House Dock an exposed and unnecessarily dangerous berth for the Junior. This fact was known to the National Dead Company, whose own wharf was nearby, as was its own tug. Other vessels had removed, on account of weather, from the wharf where the Junior lay. Thus the owner pro hac vice — i. e. National Lead Company — knew of the Junior’s daqger, had means of relieving it, was under a duty to relieve it, and failed so to do. This was negligence.

The decrees appealed from are reversed, and the cause remanded, with directions to enter decrees in conformity with this opinion. Appellant, National Lead Company, will recover the costs of this court as against Boyer’s Sons Company. No other costs in this court. The costs of .the court below will (in the decrees to be entered) be settled in conformity to the principles of a division of damages, or apportionment between two tort-feasors, as the case may be.

[3] On the other hand, we find that, before she broke away, the master of the Junior had persistently absented himself from his boat for some time, probably as much as two days; he was not caring for her, and, if he had so cared and been competent, he would have reported her dangerous berth, and sought the safer place to which he was entitled. This was negligence attributable to his employer — the owner. It results that all the consequences of the drifting, injury, and rescue of the Junior and her cargo should fall upon the National Lead Company and Boyer’s Sons Company in equal shares.