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DELAWARE RIVER TERMINALS, INC. v. M/S ANCORA

May 11, 1966

DELAWARE RIVER TERMINALS, INC., Libellant,
v.
M/S ANCORA and Canadian Transport, Inc. and Curtis Bay Towing Company of Pennsylvania and P. F. Martin, Inc., Respondents. P. F. MARTIN, INC., Cross-Libellant, v. CANADIAN TRANSPORT, INC., Cross-Respondent. CURTIS BAY TOWING COMPANY OF PENNSYLVANIA, Cross-Libellant, v. CANADIAN TRANSPORT, INC., Cross-Respondent



The opinion of the court was delivered by: LORD, JR.

 In this admiralty action, the libellant, Delaware River Terminals, Inc. (hereafter called Terminals) seeks to recover for damage done to its pier during the docking of the M/S Ancora. There are four respondents. The first is the Ancora herself. The next is the present moving party, Canadian Transport, Inc., charterer of the vessel (hereafter called Canadian). The third and fourth respondents are, respectively, Curtis Bay Towing Co. of Pennsylvania (hereafter called Curtis), and P. F. Martin, Inc. (hereafter called Martin). Curtis and Martin are maritime service companies engaged in the business, inter alia, of supplying tugs and tows.

 The libel alleges that the docking operation involved herein was being conducted by Curtis and Martin pursuant to agreements with respondent Canadian. It is also alleged that the docking operation was under the joint and several control of the three corporate respondents.

 Answers have been filed by Curtis and Martin. They admit the allegation that the docking of the Ancora was undertaken pursuant to an agreement between them and Canadian. But they go on to deny that they were in control of the Ancora while she was being docked. To the contrary, Curtis and Martin allege that she was at that time under the direction and control of Canadian.

 In lieu of an answer, Canadian has filed Exceptive Allegations and Exceptions, together with a copy of the Charter Party, seeking to be dismissed with respect to libellant's claim on the ground that respondent was a time charterer and consequently was not responsible for the docking operation that caused libellant's damage.

 Libellant has filed an initial and also a supplemental brief contra Canadian's exceptions. Martin and Curtis likewise filed a joint brief in opposition to the exceptions, and are understood to have also adopted the supplementary brief of libellant so far as applicable. Meanwhile Canadian has submitted a copy of the charter party (as already mentioned) together with two briefs in support of its exceptive allegations and exceptions.

 The Court has heard oral argument in the matter, and has examined the briefs and authorities submitted by the parties, and the matter is ready for adjudication. All authorities cited by the parties, and a great many more, have been consulted, with the result that the Court is constrained to rule in favor of Canadian. This position has been reached after much more study than the basic narrow and well-settled question would at the outset seem to warrant. Such caution is the result of a procedural reluctance to dismiss a party from an action, at its outset, when testimonial eventualities might reveal unanticipated grounds of responsibility.

 But there is simply no basis in law for retaining Canadian in the case. As a time charterer, Canadian is not responsible for navigation of the ship, and docking is a part of her navigation. Luckenbach v. Insular Line, 186 F. 327, 328 (2nd Cir. 1911). As was said in that case at page 328:

 
"It has been repeatedly held that this form of time charter is not a demise of the ship. It is sufficient to refer to our recent decision in The Volund, 181 Fed. 643, where we held that the navigation of the ship during the time of the charter is in the hands of the owner. We consider the docking of the vessel a part of her navigation. * * * Many authorities are cited on appellant's brief in support of his contention that the charterer was in control of the navigation of the vessel for the purpose of docking her, and that the tugs were consignee's agents, for whose negligence it would be liable. We find in none of the cases cited anything to induce a modification of the conclusions expressed in The Volund. * * *"

 The applicability of the quoted passage to the instant case is inescapable. The foregoing authorities unerringly fasten liability on the owners, to the exclusion of the charterers.

 Some 45 years have elapsed since that decision, however. Thus it has been necessary to determine whether those authorities have been modified or eroded since 1911. Accordingly, all opinions in the courts of the United States, from 1910 to April of 1966, in which the foregoing conclusions of the Luckenbach and Volund cases were cited, have been reviewed, i.e. The Volund, 181 F. 643, 666 (2nd Cir. 1910); Luckenbach v. Insular Line, 186 F. 327 (2nd Cir. 1911). And in the process of examining more than 20 such cases, not a single statement derogating from the stated principles was encountered.

 Since the integrity of the principles of those two cases is the touchstone of decision here, the doctrine has even been traced chronologically through the decisions disclosed by the above-described search. To mention all such cases would be unnecessarily burdensome, but a few are selected for citation herein: The Capitaine Faure, 7 F.2d 131, 132 (E.D.N.Y.1924); Scottish Nav. Co. v. Munson S.S. Line, 60 F.2d 101, 102 (S.D.N.Y.1924); The Niels R. Finsen, 52 F.2d 795, 798 (S.D.N.Y.1931); The Terne, 64 F.2d 502, 503 (2nd Cir. 1933); Venezuelan Meat Export Co. v. United States, 12 F. Supp. 379, 386 (D.Md.1935); The West Eldara, 101 F.2d 45, 47 and 104 F.2d 670, 671 (2nd Cir. 1939); The Henry W. Card, 51 F. Supp. 380, 381 (E.D.N.Y.1943), affirmed in 144 F.2d 705, 706 (2nd Cir. 1944); Palardy v. American-Hawaiian S.S. Co., 169 F.2d 619 (3rd Cir. 1948); People of State of California v. The Jules Fribourg, 140 F. Supp. 333, 337 (N.D.Calif.1956); Bergan v. International Freighting Corp., 254 F.2d 231, 233 (2nd Cir. 1958); Randolph v. Waterman Steamship Corp., 166 F. Supp. 732, 733 (E.D.Pa.1958).

 These cases present the foregoing principle in a great variety of aspects, yet not one of them suggests any exception to the rule. That rule, to restate it, is that in the case of a time charter, the navigation of the ship is the responsibility of the owner, and docking is a part of navigation. Of the foregoing list of cases, the very earliest is rather squarely in point. The Volund, 181 F. 643 (2nd Cir. 1910). The Volund, steaming up the Hudson River, collided with the steam yacht Normandie, passing downstream. The collision was the fault of the Volund, but it was held that the owner and not the time charterer was liable. The fact that the Volund was at the time being navigated by a supercargo employed by the charterer as provided by the charter party, and that the supercargo was then acting as pilot with consent of the master, did not affect the time charterer's freedom from liability.


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