Petition of S. C. Loveland Co. Inc., et al., 170 F.Supp. 786, 791-792 (E.D.Pa.1959).
But, respondent argues, since the charter was of a barge without power, Florence became owner pro hac vice of the vessel and was responsible for the master's negligence. Numerous cases, particularly those arising out of New York harbor incidents, have found that the charter of a barge without power, even where accompanied by a master employed by the owner, is a demise and the charterer becomes the owner pro hac vice. The R. Lenahan Jr., 48 F.2d 110 (2 Cir., 1931); Ira S. Bushey & Sons, Inc. v. W. E. Hedger & Co. Inc., 40 F.2d 417 (2 Cir., 1930); Dailey v. Carroll, 248 F. 466 (2 Cir., 1917); Hahlo v. Benedict, 216 F. 303 (2 Cir., 1914); Gibson v. Manetto Co., 194 F. 331 (5 Cir., 1912); The Nat E. Sutton, 42 F.2d 229 (E.D.N.Y.1930); Moran Towing & Trans. Co. v. New York, 36 F.2d 417 (S.D.N.Y.1929); The Daniel Burns, 52 F. 159 (S.D.N.Y.1892). There is some indication that peculiar conditions at New York required such a rule, Dailey v. Carroll, supra, but it has been adopted by the Third Circuit. The Doyle, 105 F.2d 113 (3 Cir., 1939).
What respondent argues for would be a vacuum-like application of these cases as a formula. Whether a particular charter is or is not a demise, must still depend upon the facts of the case. The terms of the charter and the actions of the parties to the charter are determinative. And the facts must be interpreted in light of the Supreme Court's direction that there is no demise unless the charterer has been given control of the vessel. United States v. Shea, 152 U.S. 178, 14 S. Ct. 519, 38 L. Ed. 403 (1894); cf. Guzman v. Pichirilo, 369 U.S. 698, 82 S. Ct. 1095, 8 L. Ed. 2d 205 (1961). As stated quite clearly in Gilmore and Black, The Law of Admiralty, 216 (1957):
'The test is one of 'control'; if the owner retains control over the vessel, merely carrying the goods furnished or designated by the charter, the charter is not a demise; if the control of the vessel itself is surrendered to the charterer, so that the master is his man and the ship's people are his people, then we have to do with a demise.' (citing, inter alia, United States v. Shea.)
The Doyle, supra, involved a fact situation materially different than that of the instant case. There the charter was to a towing company which undertook all navigation of the barge, using its own tugs to move it from place to place. The towing company had clearly taken over complete control of the vessel and was therefore correctly treated as the owner. The question of control was consequently not before the Court.
The evidence shows that the FELL LOVELAND was a barge without power, that S. C. Loveland Co. Inc. had the duty to tow it to Chester's dock, and that the master was responsible to Loveland for certain aspects of the loading. There is no evidence that Florence could control the master. Further, there is no evidence that Florence was ever responsible for or could control the navigation. Respondent had the burden of establishing the necessary control and it has not been sustained.
CONCLUSIONS OF LAW
1. This Court has jurisdiction of the subject matter of this cause and the parties.
2. The barge FELL LOVELAND sank on March 12, 1955 as the result of the negligence of respondent Chester.
3. The sinking of the FELL LOVELAND was not caused or contributed to by any negligence or fault on the part of libellant Florence.
4. Libellant is entitled to recover from respondent the sum of $ 6,931.57, the value of the cargo lost and additional freight expense incurred as the result of the sinking of the FELL LOVELAND, with interest from February 17, 1959 (the date of Judge Van Dusen's Findings) at the rate of 6% Per annum and costs.
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