(dissenting):
The complaint herein is based upon the theories both of contract and tort. On the theory of tort, the record is barren of any proof *290whatever of any act or omission upon the part of the defendants, or either of them, constituting negligence. On the theory of a breach of contract, plaintiff has failed utterly to prove what the terms of the alleged agreement of charter were. The testimony is no more than that the agent of the Morrison Coal and Coke Company said: “ I want to charter that boat for another trip,” and plaintiff said: “All right, you can have it,” and the rate to be paid per ton and the demurrage were agreed on. Disregarding the conflicting inference raised by the bill of lading that this was a mere contract of affreightment, and treating it as one of charter, the duty was upon plaintiff to show that defendants had agreed to return the vessel in good order and condition, or in default thereof to prove negligence on their part. As was said by Judge Rogers of the Circuit Court of Appeals, Second Circuit, in Schoonmaker-Conners Company, Inc., v. Lambert Transportation Company (268 Fed. 102, 104): “ It is settled law that, where a charter party contains no covenant for the return of a vessel in good order and condition, there is no liability for injury to the vessel without proof of negligence (C. F. Harms Co. v. Upper Hudson Stone Co., 234 Fed. 859). The liability of a charterer depends upon the terms of the charter party, and if the injuries complained of are not within the terms of the charter party then liability will turn upon whether the damages are attributable to the charterer’s negligence (Worrall v. Davis Coal & Coke Co., 122 Fed. 436.) ”
And in The Raymond M. White (290 Fed. 454) Judge Campbell of the United States District Court for the Eastern District of New York said (at p. 456): “ The Courts have differed in their construction of charter parties with reference to the words ‘ in the same condition as it is in now, less ordinary wear and tear,’ when used therein; but I believe that the weight of authority holds that in no case should a bailee for hire be made a.n insurer by implication, but only by clear and explicit language, and that by the use of the words quoted this respondent became hable only for its own negligence.” (Citing cases.)
As I regard the present record as totally devoid of the required proof of negligence by defendants, I, therefore, dissent from the reversal of the judgment and vote to affirm the same.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.