(dissenting).
On November 23, 1958, Cargo & Tank-ship Management Corporation, agents for the vessel Atlas, telephoned McAllis-ter Brothers, Inc. and requested them to provide tugs and furnish a pilot so that the Atlas could dock at Linden, New Jersey on the following morning. The district court found that the Atlas went aground and sustained considerable damage as a result of the negligence of the pilot provided by McAllister.
Appellant, McAllister Brothers, Inc., sends tugs and licensed pilots to assist vessels in docking in the port of New York. As in Sun Oil Co. v. Dalzell Towing Co., 55 F.2d 63, 64 (2d Cir.), aff’d, 287 U.S. 291, 53 S.Ct. 135 (1932), so in this case, “the contract was oral, and, as is usual in towage cases, consisted merely of an order telephoned * * * [by appellee’s agent to appellant], so that the full terms of the contract must be spelled out by the court from the previous dealings of the parties.”
On at least four previous occasions Cargo and Tankship had received and paid bills from McAllister containing the following clause:
“Pilotage — When the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power, goes on board said vessel or any other licensed pilot goes on board such vessel, it is understood and agreed that said tugboat captain or licensed pilot becomes the servant of the owner of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service and in respect to the handling of such vessel, and neither those furnishing the tug and/or pilot nor the tugs, their owners, agents or charterers shall be liable for any damage resulting therefrom.”
On two occasions prior to the accident, viz., on November 12 and 13, 1958, the *901master of the Atlas had signed a slip containing the pilotage clause, and the appellant’s bill for services also containing that clause was paid by Cargo and Tank-ship. There is nothing in the record to indicate that appellee’s agent ever objected to the pilotage clause or asserted that it was not applicable to them.
This history of prior dealings is enough to establish that the parties intended the pilotage clause to be incorporated into the oral contract.
After the Atlas had gone aground, the master of the vessel signed a tug assistance slip containing the pilotage clause and Cargo and Tankship paid a bill for services containing the clause. The costly accident must surely have directed the attention of appellees to the question of liability and therefore to the pilotage clause with which they were without doubt already familiar. Without commenting upon or protesting about the pilotage clause, the master signed the slip and the appellees paid the bill. The slip and the bill both contained the terms and conditions of the contract into which the appellees entered by signing.
I must respectfully dissent.