The Tug R. A. Turrentine, Her Engines, Etc. Brown & Root, Inc. v. American Home Assurance Company

TUTTLE, Circuit Judge

(concurring specially).

Having concurred in the opinion of this Court in the Mississippi Valley Barge Line Co. case, supra, but since on more thorough consideration of it in relation to the Supreme Court’s decision in Sacramento Navigation Company, I have some considerable doubt as to the correctness of our decision, I think it appropriate to point out some respects in which this case differs from Mississippi Valley Barge Line.

Here, as there, the barge was furnished by the shipper and not by the carrier. *816 That is the distinguishing characteristic which we assigned for not following the Sacramento Navigation Company principle. Here, though, different from Mississippi Valley, there .was no bill of lading issued by the owner of the tug for the carriage of the cargo. There was here only a contract for the hire of the tug to tow the barge, as is pointed out in the opinion of the Court. Furthermore, it is not contended here that Brown and Root were common carriers, a point which appellee says is critical in determining whether a Harter Act defense is available to it. The Mississippi Valley Barge Line Company was a common carrier by water, thus further distinguishing that case from this.

Finally, it appears in this case “that appellants pleaded that they had ‘chartered’ the tug; that the charter of the Tug ‘R. A. Turrentine,’ was one of engagement only to tow the barge of Magco Towing Co., Inc.” (Emphasis added.) No such situation existed in Mississippi Valley.

I am, of course, bound by this Court’s decision in the Mississippi Valley Barge Line case, more especially because I participated in it. If this were a similar case, however, I would announce my concurrence only because of the principle of stare decisis, since I now have some considerable doubt as to the validity of the distinction we there drew with Sacramento Navigation Co. As it is I am satisfied to point out the facts which I think distinguish this case from Mississippi Valley, and which clearly require the result announced by the Court.