Citations
- 57 F.2d 337
Full opinion text
AYIS, District Judge.
The Ford Motor Company and Cbiarello-Bros. Company, Inc., cacli heretofore filed libels against the New York Towing & Transportation Corporation (hereinafter called the towing corporation), its steamtug Philip J. Kenny and lighter Walter Franks, based upon a claim for damages arising out of a contract for transportation of merchandise for the Ford Motor Company, and a claim of Chiarello Bros. Company, Ine., for-damages alleged to have been sustained be-cause of injuries to the barge Tripoli owned by it:
These cases were duly heard by the court and interlocutory deerees entered in both eases for the amounts claimed, with interest, in rem against the steamtug Philip J. Kenny and in personam against the towing corporation. Reference was made to a commissioner to ascertain the amounts due, and he reported in favor of the Ford Motor Company in the sum of $27,396.15, with interest from April 23, 1931, and in favor of Chiarello Bros. Company, Inc., in the sum of $637, with interest from Apnl 23, 1931.
The towing corporation, because the amounts shown by the report appear to be m excess of the value of .the steamtug has filed its petition, praying a limitation of liability, and has filed a stipulation on ex parte proof of value, asking for injunction, etc.
. The ^ o£ the towifg coloration to Imitation depends upon the construction of two acts of Congress, which read as follows: “The liability of the owner of any vessel, for -any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, , n n i , • -j loss, damage, or forfeiture, done, occasioned, or incurred Without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner- in such vessel, and her freight then pending.” 46 USCA § 183.
“The individual liability of a shipowner . , .. .. . > r. shall be limited to the proportion of any or ..... ... ,, , , • • .. -i i all debts and liabilities that his individual , „ ,, . . , ,, , , , share of the vessel bears to> the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending: Provided, That this provision shall not prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said shipowners.” 46 USCA § 189.
~ The Ford Motor Company filed its answer, and, upon petition for replication, an n _ r \ . ’ order was made requiring the towing corporation to file a replication, to certain claims in the answer, which was duly filed. Subsequently, counsel for the Ford Motor Company moved to dismiss the petition for limitation, claiming that the towing corporation cannot limit its liability to the value of its tug and pending freight, because of its personal contract with the Ford Motor Company.
The personal contract relied upon to pre>-vent the limitation of liability reads as follows:
Freight Contract
“Between Ford Motor Company and New York Towing & Transportation Corp.
“17 Battery Place, New York City
«Owner of the Barge Hoister ‘Square/ agrees to let space on ‘gqliare> to Ford Motor oompaily) said space on ‘Square? being suffi-cjent to accommodate about
_F c b y _ “ ^ unboxed -iXTo. (Inboxes) _Tons Boxed Parts
„Ford Motor Company agree» to pay, tw at fte rate of ${&M d com. menci on deli o£ boister Square? at Ke K j; 1/18/2,g, ^ continuing un-,gquare, at point in watera-.
«0wner t& suppl space 0n barge, fully manned and ^ ^ including tarpaulins, and af. all times to be ^ gole conta)1 of . ation navi&ation and management: Ford Motor Company, as lessor of space on hoister