(after stating the
facts as above). As a bailee, the respondent would normally be liable for negligence, and for nothing more. C. F. Harms Co. v. Upper Hudson Stone Co., 234 F. 859, 148 C. C. A. 457 (C. C. A. 2). Indeed, in this circuit a covenant to redeliver in good condition, less wear and tear, adds nothing to the charterer’s obligation. Mulvaney v. King Paint Co., 256 F. 615, 167 C. C. A. 642; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Simmons Transportation Co. v. Wright & Cobb Co. (D. C.) 290 F. 454, affirmed (C. C. A.) 296 F. 1023. Thus, unless the clause relieved , the charterer of negligence, it was brutum fulmen. Sueh a contract was lawful; the only question is what it meant. The case is similar in principle to City of New York v. Clyde Lighterage Co., 13 F.(2d) 533 (C. C. A. 2), though the words there used were very different. We ought to give some effect to the language chosen, if we can, and, as no other can be found but to excuse the charterer’s negligence, it must have that.
Each side relies on New Orleans-Belize Co. v. U. S., 239 U. S. 202, 36 S. Ct. 76, 60 L. Ed. 227; but we think it makes for the appellant. To be sure, in that case there was no demise; but the charter party contained a covenant to redeliver in good order, for which the charterer had no excuse but in the exculpatory clause. See, also, Morgan v. U. S., 14 Wall. 531, 20 L. Ed. 738. It is quite true that the opinion was at some pains to say that the charter was not a demise, which, if we are right, was irrelevant.
On this the appellee bears hard, and rightly. However, it was apparently the chief point argued at bar, and courts are apt to follow counsel’s lead in such matters. In any case, we do not see how the clause can be an excuse for a breach of the charterer’s covenant to redeliver when he is not a bailee, and not an excuse when he is. There ought to be no more reluctance so to construe the language when it exonerates a bailee from negligence than an ordinary charterer, who by his orders carelessly exposes the ship. Nor, if we are to suppose that upon a demise there is an implied covenant to redeliver alongside of the express, should we treat the former as more immune from such an exception than its fellow.
The clause continuing the hire when the barge was laid up through the fault of the United States seems to us the measure of its obligation. For the rest the owner must look to his underwriters.
Decree reversed.