*897On Rehearing.
WARD, Circuit Judge.The libelants contend in the first place that, as the court has lound the towage' contract made between the owners of the steamer Oceánica and the barge Massasoit to have been from Marquette to Buffalo, its terms cannot be held to apply to the subsequent towage from Búllalo to Tonawanda. Therefore it is argued that the agreement of the owner of the barge to assume all risks did not apply to the stranding of the barge in the Niagara river. We think this view erroneous. If the master of the Oceánica to oblige the master of the barge towed the barge beyond Buffalo against his owners’ orders, then neither the Oceánica nor her owners are liable because the owners of the barge knew that the contract was to tow simply to Buffalo. The R. F. Cahill, 9 Ben. 352, Fed. Cas. No. 11,735; The Andrew White (D. C.) 108 Fed. 685. On the other hand, if the towage beyond Buffalo was within the authority of the master of the ()ceanica, and not contrary to his owners’ orders, then the contract liiust be regarded as extended and applying in all its terms to towage beyond Buffalo.
In the next place the petitioners contend that, the ownership of the cargo being different from the ownership of the barge, the cargo owners have a right to recover, even if the barge owners have not. No difference between the rights of the cargo and of the barge were pointed out either in the pleadings, in the proofs, in the printed briefs, or on the oral argument. It is now, however, admitted by the claimants of the Oceánica that the cargo was owned by third parties, and the question, therefore, arises whether their rights against the Oceán-ica differ from the rights of the owners of the barge.
The claimant of the Oceánica contends that the cargo owners must claim through, and are therefore bound by, the towage contract. New Jersey Steam Navigation Co. v. Merchants’ Bank, 6 How. 344, 381, 12 L. Ed. 465; Stoddard v. Long Island R. R. Co., 5 Sandf. (N. Y.) 180, 188. When the towage contract was made, the owners of the barge were bailees of the cargo, and under the right and duty of representing it in matters necessary to transportation. The contract was certainly to tow the barge and her cargo. If it had contained no exemption, the owners of the barge could have recovered against the Oceánica for damage to both barge and cargo. So if the owners of the Oceánica had refused to perform the towage, and damage had thereby ensued, the contract could have been enforced for the benefit of the cargo as well as of the barge. We think that the cargo owners are not strangers to the contract, and that for the reasons next to be considered the contract is a defense against their claim.
But the libelants claim that, even if the owners of the Oceánica in a suit in personam could not be held by the owners of the barge for the loss of the barge because of the contract, still that the vessel herself is liable to them in rem. The authorities cited only show that a vessel guilty, of a tort is personified in the admiralty, and may sometimes be held liable in rem when her owners arc not liable at all. For example, a vessel may be condemned as guilty of engaging in piracy, her owners not being liable at all, because it was without their knowledge or *898privity (The Malek Adhel, 3 How. 310, 11 L. Ed. 339); or a vessel may be held at fault in rem for a collision because of the negligence of a compulsory pilot, when her owners would not be liable in personam (The China, 7 Wall. 53, 19 L. Ed. 67; and see Homer Ramsdell Co. v. Compagnie Générale Transatlantique, 182 U. S. 406, 21 Sup. Ct. 831, 45 L. Ed. 1155); or a vessel demised by charter party may be liable in rem for negligence of the owner pro hac vice, when her owners would not be responsible in personam (The Barnstable, 181 U. S. 464, 467, 21 Sup. Ct. 684, 45 L. Ed. 954). The subject has been considered by this court in The W. G. Mason, 143 Fed. 913, 917, 74 C. C. A. 83, in which Judge Wallace pointed out that according to the law of this country liability in rem is not necessarily coextensive with the personal liability of the owner.
No doubt a suit in rem against a vessel for negligence is a suit ex delicto, even if there has been a contract between the parties. Suits arising out of negligence are ex delicto, even when charter parties or bills of lading regulate the rights of the parties. This fact, however, does not nullify the contract. In such suits against a vessel in rem the agreement is always pleaded and proved. The books are full of suits against vessels for damage to cargo or baggage, where the vessel was discharged because of exemptions contained in the agreement between the parties. If the claimant shows that by agreement he is legally exempted from liability, his vessel is exempted also. It would, indeed, be extraordinary if a libelant by proceeding in rem could recover against the owner’s property, when by virtue of the contract between the parties he could not recover against the owner in personam. The law is well expressed by Mr. Justice Brown in Bancroft v. Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 378, 45 L. Ed. 419. In that case the libelant sued the vessel in rem for damages to a shipment under a bill of lading containing the following clause:
“It is expressly agreed that all claims against the P. G. S. S. Co., or any of the stockholders of said company, for damage to or loss of any of the within merchandise, mpst be presented to the company within 30 days from date hereof, and that after 30 days from date hereof no action, suit, or proceeding in any court of justice shall be brought against said P. O. S. S. Co., or any of the stockholders thereof, for any damage to or loss of said merchandise ; and the lapse of said 30 days shall be deemed a conclusive bar and release of all right to recover against said company, or any of the stockholders thereof, for any such damage or loss.”
The action was begun four years after the loss. The claimant excepted to the libel because, among other things:
‘‘The causes of action have been waived and abandoned by virtue of a limitation clause of 30 days contained in the bill of lading or shipper’s receipt.”
This exception was overruled by the District Court (The Queen of the Pacific, 61 Fed. 313, 314), but sustained in the Supreme Court; Mr. Justice Brown saying:
“The Court of Appeals in its opinion dwelt upon several propositions arising upon the pleadings and evidence, but in the view we have taken of the case we shall find it necessary to discuss but one, which is, in substance, that the libelants did not, as required by the bill of lading, present to the company their claims for damage to the merchandise within 30 days from the date of the bills of lading, April 27 and 28, 1888. There is no pretense of *899a '•oinplinnce with this condition. Two answers are made to this defense: First, that the limitation applies only to claims against the steamship company or any of the stockholders of said company, and. not to claims against the vessel; second, that the limitation is unreasonable.
“1. The first objection is quite too technical. It virtually assumes that Hiere were two contracts, one with the company and one with the ship, the vehicle of transportation owned and employed by the company, and that while the company as to all its other property is protected by the contract, as to this particular property, used in carrying it out, it is not so protected. But, if such be the case with respect to this particular stipulation, must it not also he so with respect to the other stipulations in the bill of lading, to which the company is a party, but not the ship? Thus, ‘the responsibility of said company shall cease immediately on the delivery of the said goods from the ship's tackles.’ Can it be possible that the responsibility of the ship shall not c-ease at the same time? ‘The company shall not be hold responsible for any damage or loss resulting from lire at sea or in port, accident to or from machinery, boilers or steam,’ etc. But shall the company be exempt and not the ship? ‘It is expressly understood that the said company shall not be liable or accountable for weight, leakage, breakage, shrinkage, rust, etc., * * * nor for loss of specie, bullion, etc., unless, shipped under its proper title or name, and extra freight paid thereon.’ But shall the ship be liable for all these excepted losses, notwithstanding (hat the company is exonerated? These questions can admit of but one answer. There was in truth but one contract, and that was between the libelants, upon the one part, and the company in its Individual capacity and as the representative of the ship, upon the other.
“There is no doubt of the general proposition that restrictions upon the liability of a common carrier, inserted by him in the bill of lading for his own benefit and in language chosen by himself, must be narrowly construed. Still they ought not to be wholly frittered away by an adherence to the letrer of the contract, in obvious disregard of its intent and spirit. It is too clear for argument that it was the intention of the company to require notice to he given of all claims for losses or damage to merchandise intrusted to its care, and as such damage could only come to it while the merchandise was upon one of its steamers, or in the process of reception or delivery, and as the owner would have his option to sue either in rom or in personam, it could never have been contemplated that in the one case he should be obliged to give notice and not in the other. In either event, the money to pay for such damage must come from the treasury of the company, and we ought not to give such an effect to the stipulation as would enable the owner of the merchandise to avoid its operation by simply changing his form of action, it would be almost as unreasonable to give it this construction as to hold that it should apply if the action were in contract, but should not apply if it were in tort. The ‘claim’ is in either case against the company, though the suit may bo against its property.”
The Circuit Court of Appeals for the Third Circuit had, before this decision was handed down,.said of a similar clause in a bill of lading:
“It is further contended by the libelant that the stipulation as to notice contained in the St. Hubert’s bill of lading is not a defense to an action in rem, because the provision was only Cor the protection of the shipowners, and did not apply to the ship. We do not think there is either reason or authority for so narrow and harsh a construction of this stipulation as to notice. There may be cases in which it is necessary to discriminate between the liability of the shipowner and that of the ship; but this is not one of them. It is an exemption stipulated for in the bill of lading of the ship for injury to goods done on the ship, notice of claim for which, is required to be given before removal front the custody of Hie ship. The shipowner can hardly be said to have secured himself against liability for want of notice of claim, if such exemption is not available whom Ms property is seized and subjected to payment of that very liability, its said by Judge McPherson in the case of The Westminster (1).' C.) 102 Fed. 808, where a similar clause was under *900consideration: ‘This, I think, cannot properly be construed so as to. exempt the shipowner i£ he should he sued personally in a formal proceeding that may end in seizing his property by one kind of writ, and to deny him exemption if he should be sued in another form of proceeding that seizes his property in the beginning by a different kind of writ. * * * Ultimately his property is to be reached in order -to satisfy the libelant’s claim; and, if he is “liable” when his property is exposed to the danger of a final writ of execution in a personal action, I can see no ground for holding that he is any the less liable when his property is seized in limine by a proceeding in rem. It is familiar law that exemptions are to be strictly construed, against the carrier; but even in an exemption a strained construction should not prevail over the plain meaning of words.’ ” The St. Hubert, 107 Fed. 727, 781, 46 C. C. A.. 603, 607.
We do appreciate keenly that the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions. The question should, and we hope will, be set at rest in this case by the Supreme Court.