(dissenting). I agree that it is settled, certainly in this circuit, and probably elsewhere, that a covenant to return a vessel, “reasonable wear and tear excepted,” imposes no added liability on the bailee. He may be charged only for his negligence. Whatever be the justification for giving no effect to such language, the rule is now too well settled to question it any longer. Therefore, if the libelant’s letter had stood alone and had contained only the last paragraph, I should agree that the city of New York was not liable without proof of negligence. But it was preceded by this language: “We will hold the city of New York liable for all damages to our scows while under your charter.” I cannot see any substantial difference between that and the language construed in Sun P. & P. Ass’n v. Moore, 183 U. S. 643, 22 S. Ct. 240, 46 L. Ed. 366. It is true that there the vessel had been valued, and that to the extent of that valuation the charterer agreed to give security for any loss which might happen. Nevertheless, although the court regarded this as fortifying its conclusion, it would have reached the same result without the addition. Pages 655, 656 (22 S. Ct. 240).
Besides, the libelant’s letter does not stand alone. The city, on December 4th, tried to get the owner to accept the risk of fire, and the owner expressly refused. Instead, it insisted that the city should be liable for all damages to the scows. Our decision, therefore, imposes upon the owner exactly that burden which he refused to assume, and gives the city the exoneration which it could not secure. By what reasoning this result can be reached I do not see.
I think that the city is liable, but I agree that the tug is not.