The Barnstable

This case originated in a libel by the owners of the schooner Fortuna against the British steamship Barnstable, for a collision which took place off Cape Cod on January 13, 1896, and resulted in a total loss of the schooner, and the personal effects of her master and crew. Nine of the crew were drowned.

A claim was interposed by the master of the Barnstable on behalf of the Turret Steamshipping Company, a British corporation, and the owner of the steamship; and an order was subsequently entered substituting that corporation as claimant.

Before the time to answer expired, the Turret Company presented a petition, setting forth that at the time of the collision the Barnstable was chartered to the Boston Fruit Company, a Massachusetts corporation; that the charterer supplied its own officers and crew, who were navigating the vessel at the time of the collision, and that, if there were any faults on the part of the Barnstable, they were the faults of the charterer, and not those of the owner. In compliance with the prayer, a summons was issued to the Boston Fruit Company to appear before the district court to answer the petition. The company appeared and answered, admitting the charter (copy of which was annexed to the petition), but denying liability for the negligence of the officers and crew of the steamship, or that it had assumed liability therefor under its charter.

Subsequently, however, but after certain testimony had been taken, counsel for the owners and also for the charterer became satisfied that the Barnstable was in fault, and assented to a decree against her, leaving the question of liability as between the owner and charterer to be passed upon by the court.

The material provisions of the charter party, which was for thirty-six months from March, 1894, were that the charterer should 'provide and pay for all oils and stores for the vessel, gear, tackle, and appliances for loading and discharging the cargo, and for all the provisions and wages of the captain, officers, engineers, firemen, and crew, who, except the guarantee engineer, shall be appointed by them;' that the owners should 'maintain the vessel in a thoroughly efficient state' for the service, but the charterer should 'provide and pay for all the coals, fuel, port charges, pilotages, agencies, commissions and all other charges whatsoever, excepting for painting and repairs to hull and machinery and everything appertaining to keeping the ship in proper working order;' to pay for her use £550 per month, and that 'in the event of loss of time from collision, stranding, want of repairs, break down of machinery, or any cause appertaining to the duties of the owner, preventing the working of the vessel for more than twenty-four working hours, the payment of hire shall cease from the hour when detention begins until she be again in an efficient state to resume her service.' There was a final and most important provision, upon the construction of which the case turned, 'that the owners shall pay for the insurance on the vessel.'

The case, as thus presented between the owner and the charterer, was submitted to the district court, which dismissed the owner's petition, holding it to be liable under the charter for the consequences of the collision. 84 Fed. Rep. 895. This decree was affirmed by the circuit court of appeals, 36 C. C. A. 199, 94 Fed. Rep. 213.

Mr. J. Parker Kirlin for petitioner.

''Messrs. Arthur H. Russell, Charles Theo. Russell, Eugene P. Carver, and Edward E. Blodgett'' for respondent.

Mr. Justice Brown delivered the opinion of the court: