111 F. 542 | D. Wash. | 1901
After rendering a decision upon the merits in these cases, the court granted a rehearing and admitted further proof, and now, upon due consideration of tbe additional evidence and arguments, tbe court finds it necessary to revise its decision.
The amended libel alleges losses to tbe charterer, of which I have made tbe following condensed statement:
Beef and potatoes negligently wasted............................ if 2,018 99
Barge Mildred abandoned at Juneau............................ 4,000 00
Two days’ unnecessary detention at Juneau of steamer.......... 500 00
False expense voucher......................................... 257 50
Four days’ unnecessary detention at St. Lawrence' Bay.......... 1,000 00
Failure to collect freight on goods carried from St. Lawrence Bay to Ttnalaklik ...............................................” 3,000' 00
Two days’ unnecessary detention at Dutch Harbor.............. 500 00
Cash collected for extra meals and retained by captain.......... 112 50
Nemoral of cabins and reduction of passenger accommodations, and knocking down of fare's by captain...................... 15,(¡30 00
Carrying passengers and freight gratis......................... (¡85 00
Two anchors and one winch removed from barge Mildred....... 125 00
Stores conliscated when steamer was taken from charterer’s possession ..................................................... 300 00
Wrongfully taking- steamer from charterer 27 days before expiration of charter.............................................. 10,000 00
That part of the libelant’s claim which is for losses alleged to have been caused by or resulting from the incompetence and mis
“Affreightment contracts are of two kinds, and they differ from each other very widely in their nature, as well as in their terms and legal effect. Charterers or freighters may become the owners for the voyage, without any sale or purchase of the ship, as in the cases where they hire the ship, and have, by the terms of the contract, and assume in fact, the exclusive possession, command, and navigation of the vessel for the stipulated voyage. But where the general owner retains the possession, command, and navigation of the ship, and contracts for a specified voyage,—as, for example, to carry a cargo from one port to another,—the arrangement in contemplation of law is a mere affreightment sounding in contract, and not a demise of the vessel, and the charterer or freighter is not clothed with the character or legal responsibility of ownership. Unless the ship herself is let to hire, and the owner parts with the possession, command, and navigation of the same, the charterer or freighter is not to be regarded as the owner for the voyage, as the master, while the owner retains the possession, command, and navigation of the ship, is the agent of the general owners, and the mariners are regarded as in his employment, and he is responsible for their conduct. Courts of justice are not inclined to regard the contract as a demise of the ship, if the end in view can conveniently be accomplished without the transfer of the vessel to the charterer; but where the vessel herself is demised or let to hire, and the general owner parts with the possession, command, and navigation of the ship, the hirer becomes the owner during the term of the contract, and, if need be, he may appoint the master, and ship the mariners, and he becomes responsible for their acts.”
The same distinction and the same rule for determining whether a charterer is to be treated as the owner of the ship during the life of the charter party are recognized and applied in nearly all of the decisions cited upon the argument of this case. See Marcardier v. Insurance Co., 8 Cranch, 39, 3 L. Ed. 481; The Gracie v. Palmer, 8 Wheat. 605, 5 L. Ed. 696; Leary v. U. S., 14 Wall. 607, 20 L. Ed. 756; Shaw v. U. S., 93 U. S. 235, 23 L. Ed. 880; U. S. v. Shea, 152 U. S. 178, 14 Sup. Ct. 519, 38 L. Ed. 403; Donahoe v. Kettell, Fed. Cas. No. 3,980; The Aberfoyle, Fed. Cas. No. 16; Certain Logs of Mahogany, Fed. Cas. No. 2,559; Drinkwater v. The Spartan, Fed. Cas. No. 4,085; Eames v. Cavaroc, Fed. Cas. No.
Having in view the law applicable to this case as settled by the above authorities, it is not a difficult matter to ascertain which of the parties to the cause now before the court should be held responsible for the conduct of the captain and steward of the Del Norte as to the several matters alleged in the libel. The charter party is set forth in the pleadings of both parties, and there is no controversy as to its exact terms. The contract is in writing, and the
There is certainly very little, if any, ground for claiming that this instrument is ambiguous, or that its meaning is doubtful with respect to its being a demise of the ship. The different provisions are harmonious with the manifest purpose to place the ship, during the term for which she was hired, in the possession of the charterer, and to give him complete control of the entire ship, and her employment, and also complete control of her officers and crew. His right to have such complete possession and control could only be forfeited by failure on his part to make the required payments, or by a breach of his covenants to not expose the vessel to forfeiture by any infraction of the laws, or by failure to keep the ves
On the rehearing it has been argued very earnestly that the twelfth article of the charter party vests in the master authority superior to the right of the charterer' to control the' operations of the vessel in towing barges, and that, as the owner is expressly exempted from liability for abandonment of any tow when, in the judgment of the master, the safety of the vessel requires such abandonment, this article should be construed differently from other parts of the contract, and that for the loss of a barge, alleged to have resulted from abandonment thereof in a safe harbor, when there was no imminent peril to the ship, there is an implied agreement that the owner should be liable. I might assent to this argument if in fací the twelfth article did confer upon the master any unusual or extraordinary power; but it does not. Under the law the master of a ship is responsible for the proper stowage of cargo. It is part of his duty to see that his vessel does not proceed upon a voyage overburdened, and he has authority superior to that of the charterer or owner to abandon a tow or jettison cargo to save his ship when in peril, and it is also his duty to be diligent to protect property intrusted to his care, whether, it be a barge in tow or merchandise in the hold. Stipulations in the contract agreeing that the master shall have such powers, and that he shall be obligated to perform such duties, have no more effect to enlarge the rights of the charterer than would an agreement that the master shall maintain discipline on the ship, and supervise the work of his subordinates and the crew, and see that the steward does not waste the stores provided for a voyage. The contract in its entirety must be construed as an agreement that the master to be chosen by the owner should have all the powers pertaining to the office of master, and that in the operations of the ship he should be subject to the control of the charterer only to the same extent that an owner usually exercises his power to control. In my opinion, the twelfth article adds nothing to the contract except the right of the charterer to have such increased profits as might be earned by performing towing services. The only addi
For the reasons I have stated, all of the damages claimed by the libelant on account of the alleged misconduct of the captain and steward must be eliminated, and further inquiry with respect to the damages demanded by the libelant must be confined to the claim which he makes on account of being dispossessed before expiration of the time for which the vessel was hired. A forfeiture of the charter party was claimed, and the owner, by his agents and representatives, took the vessel out of the libelant’s possession on the 10th day of September, 1898,. which was 27 days before the expiration of the term specified in the charter party. The only ground for this proceeding is an alleged default on the part of the charterer by nonpayment of the full amount of rent which became due and payable on the 1st day of September. If, in fact, all the payments made by the charterer and the earnings of the vessel received by the captain and turned over to the owner were insufficient to pay all the wages earned and other expenses of operating the vessel and the full amount of rent to the end of the term, the owner had a right to take possession of the vessel at any time after September 1st, and the charterer is precluded from claiming damages on account of being dispossessed. It appears by a voucher introduced in evidence as “Exhibit E” that cash payments were made to John W. Graham, the agent of the owner, who conducted the negotiations for the charter and signed the charter party as agent for the owner, and money was deposited, as required by the charter party, to the amount of $10,650, and said agent also received in lieu of cash an order for $600. The statement of account rendered to the charterer by an agent of the owner, after the vessel returned from her northern voyage, which was produced in evidence, and marked “Libelant’s Exhibit A,” shows that the earnings for the voyage and money paid by the charterer to the captain amounted to the total sum of $5,408.88. Presumably this money, less the amount which the captain claimed to have disbursed in Alaska, was turned over by the captain to the owner, otherwise the owner wrould not have accounted for it to the charterer,—making an aggregate amount of cash credits in' favor of the charterer on account of the charter party of $16,658.88. Against this total the charterer is to be debited with the rent for
The owner’s agent in Seattle demanded a sum very much in excess of the true balance due, and the libelant now claims that he was greatly prejudiced by this exorbitant demand, and was thereby prevented from securing money sufficient to meet the payment necessary to have entitled him to retain the vessel to the end of the term, and on that ground he urges that he should be relieved from his obligation to pay rent and wages for the time after September 3d, but, having failed to make a legal tender of the .sum which was due, there is no legal ground upon which the court can grant relief.
A decree will be entered in favor of the cross libelant for the amount of said balance and interest and costs.