This is an action by the owner of a vessel to recover its value from the defendant to whom it was chartered. The judge found for the defendant and reported the case.
“On October 16, 1922, at Yarmouth, Nova Scotia, the plaintiff and defendant executed a charter party ... by the terms of which the schooner 'Annie L. Spindler’ was chartered to the defendant for the term of three months. Simultaneously the same parties executed another agreement . . . from which it appears that the defendant agreed to pay the premiums on insurance policies covering marine risks and taken out in the sum of $10,000 by the plaintiff, the owner. The defendant, having paid the plaintiff the sum stipulated for' the hire of the vessel and having paid the insurance premiums, placed his own master and' crew aboard as well as all necessary supplies and provisions and the vessel sailed from Yarmouth. On December 28, 1922, it was cast ashore at Provincetown, Massachusetts, in a' 'storin' of unusual *56violence and became a total wreck. The loss was not attributable to negligence on the part of any one. The insurance companies have refused to pay the insurance and the policies have ever since been in the possession of the plaintiff.”
The plaintiff contended that by the terms of the charter party the defendant became responsible for the loss of the vessel, whether its loss was due to negligence or solely to the perils of the sea or the act of God, and relied in support of that contention upon these terms of the agreement: “The party of the second part [the defendant] warrants that during the said term of three months, the said schooner or vessel shall be kept seaworthy, and in every respect fit . . . and shall in every respect indemnify the party of the first part from any expenses or charges therefore.”
A bailee is hable only for negligence unless by express agreement his liability is enlarged. Sun Printing & Publishing Association v. Moore, 183 U. S. 642. Young v. Leary, 135 N. Y. 569. The terms of the agreement quoted are not fairly susceptible of the interpretation that the charterer guaranteed the safe return of the vessel. They specifically refer to keeping the vessel seaworthy and fit and provide that if the charges and expenses for this work should be incurred by the owner the charterer would reimburse him. “ . . . where from the nature of the contract it appears that the parties must from the beginning have contemplated the continued existence of some particular specified thing as the foundation of what was to be done, then, in the absence of any warranty that the thing shall exist, the contract is to be construed not as a positive contract, but as subject to an implied condition that the parties shall be excused in case before breach performance becomes impossible from the accidental perishing of the thing without the fault of either party.” Hawkes v. Kehoe, 193 Mass. 419, 423. Texas Co. v. Hogarth Shipping Co. Ltd. 256 U. S. 619, 629. Wells v. Calnan, 107 Mass. 514. Butterfield v. Byron, 153 Mass. 517. The owner agreed that the whole vessel should be at the sole use and disposal of the charterer for the term of three months, and that no goods should be loaded on board otherwise than from the charterer without his consent in *57writing; and the owner agreed to take and receive on board during the term all such lawful goods and merchandise as the charterer might think proper to ship. But if the contention of the plaintiff, that the entire vessel was let to the defendant with the transfer of command and possession, and control of its navigation and crew for the specified period, be true, still its loss by perils of the sea without negligence would excuse him from his obligation to keep it "seaworthy, and in every respect fit.”
The case is to be distinguished from those in which the charterer has assumed the absolute obligation to return the vessel. Sun Printing & Publishing Association v. Moore, supra. See Phillips v. Stevens, 16 Mass. 238; Mill Dam Foundery v. Hovey, 21 Pick. 417, 441; Drake v. White, 117 Mass. 10; Harvey v. Murray, 136 Mass. 377.
The finding of fact, that there is nothing to indicate that the owner intended, or that it was his purpose, that the vessel should be used for the unlawful carriage of liquor, eliminates the defence of illegality. The rulings of the judge were right. The plaintiff’s requests for rulings in so far as they were not given or rendered immaterial by the findings of fact were denied properly. In accordance with the terms of the report, judgment is to be entered for the defendant.
So ordered.