The opinion of the court was delivered by: Will, District Judge.
The complaint in this action alleges injuries to the
plaintiff, a longshoreman, while working in the hold of the
vessel, INGRID WEIDE. Count I seeks recovery under the Jones
Act and count II under the general maritime law for
unseaworthiness. Defendants — the charterer of the vessel and
its agent — have moved for summary judgment with supporting
The basis of defendants' motion is that, as time charterer
and time charterer's agent, they are not liable for injury to
third persons aboard the chartered vessel, since, in law, the
burden of that liability is the owner's. Plaintiff argues,
however, that in this case the time charterer has become the
owner of the vessel pro hac vice by virtue of the terms of the
charter party, that in fact the charter party is one of demise,
not of time.
The charter party in the present case — which is before the
Court — is entitled a "Uniform Time-Charter" and is the
standard form used in contracts of affreightment between owners
and time-charterers. In two cases in this Court, Austin
Jennings v. Kolner Reedersi, et al., 57 C 1403 and Presley
Archie, Jr. v. M/V Hermann Schulte, Poseidon Lines and James W.
Elwell Co., 59 C 335, precisely the same form of time-charter
contract was involved. In both cases the time-charterer's
motion to be dismissed out was granted on the ground that the
owner was the proper party defendant. These cases also involved
longshoremen injured aboard ship during loading or unloading
operations, and the provisions of the charter parties there as
to possession, control, management, liability and the like were
exactly the same as the provisions of the charter party in the
Reliable indicia in a charter party of who is considered in
command, possession and control of a vessel are the provisions
for (1) hiring and paying the master, officers and crew, (2)
the time length of the charter, and (3) the use to which the
charterer is putting the vessel. Gilmore and Black, "The Law
of Admirality", pp. 215-218. Paragraph 3 of the charter party
herein provides, "The Owners to provide and pay for all
provisions and wages, for insurance of the Vessel, for all
deck and engine-room stores and maintain her in a thoroughly
efficient state in hull and machinery during service." It is
also clear that the owners are to hire the master, officers
and crew. The length of charter is not indefinite but "for a
period of three or four round voyages", and its purpose is for
the carriage of cargo and nothing more.
It is true, as plaintiff points out, that there are certain
areas in which the master is subject to the orders of the
charterer (paragraph 9) and certain limitations on the
liability of the owner (paragraph 13). These reservations,
however, do not alter the conclusion that the owner is the
proper party defendant. The charter party is between the owner
and the charterer and does not inure to the benefit of third
persons, regardless of what indemnification provisions the
owner may wish to make to protect himself. The test of
ownership is complete command, possession and control if that
ownership is to be attributed to the charterer. Clearly, this
charter party does not vest such powers in defendants.
Accordingly, defendant's motion for summary judgment is
granted. An order consistent with the above will be entered.
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