SUR LIBELLANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
KIRKPATRICK, District Judge.
While being docked, assisted by two tugs, at a pier in the Port of Philadelphia, the Acadia collided with another vessel and with the pier. The owners of the Acadia began this action to recover for the resulting damage against the owners of the tugs and their employee, Louis Szalejko, who was acting as pilot and whose negligence is alleged to have caused the accident.
The Acadia was operating under a time charter between her owners and the impleaded respondent, the charterer. The tugs were owned by respondent, Curtis Bay Towing Company (Curtis Bay). The contract under which Curtis Bay was employed was in writing and had been executed by the agent of the charterer who signed it with the name of the libellant.
Curtis Bay pleaded a number of defenses to the libel among which was that the action was barred by the pilotage clause contained in the dockage contract which provided, in effect, that, when the pilot goes aboard the vessel and uses its engines, he will be the servant of the vessel being assisted and that neither the party furnishing the tugs nor the tugs nor the pilot will be liable for any damage resulting from the pilot's handling of the vessel. Another clause of the contract provides that, where the charterer orders the services of the towing company without having been authorized to bind the vessel to the pilotage clause, it will indemnify the towing company for all damage and expenses which it may incur in consequence of such lack of authority.
The motion now before me describes itself as "a motion for summary judgment in the nature of a motion to strike the defense" of the pilotage clause.
The principal argument advanced by the libellant to support this motion is that the pilotage clause in the charterer's contract with Curtis Bay was of no effect as to it for the reason that the charterer had no authority to bind it by the pilotage clause. The charter party provided nothing more with regard to pilotage than that the charterer was to "provide and pay for * * * pilotages," certainly not enough to commit the owner to the terms of whatever contract relating to pilotage the charterer should make.
In People of State of California v. The Jules Fribourg, D.C., 140 F. Supp. 333, 340, a case very nearly on all fours with the one now before me, the Court said,
The charterer had the authority to provide for pilotage, but whatever undertaking it entered into in doing so was its own responsibility. It is not reasonable to imply from the charterer's authority to provide a pilot, the incidental authority either to waive any rights of the owner or to subject the owner to an employer's responsibility for the actions of a person who in fact was controlled by and owed primary allegiance to another employer. The implication of such authority would not be justified even if, as the tug company contends, the owner of the Jules Fribourg was aware that pilotage clauses such as the present one were in frequent use.