11 F. Cas. 928 | D. Mass. | 1863
Several questions have arisen on the auditor’s report, and also upon the provision of the shipping articles in reference to spirituous liquors. 1 will first examine the former. The respondents claim commissions for selling and guaranteeing the oil, if they are to be charged with the credit price, or if that claim is not allowed, then that the credit price should be reduced to the price at which the oil could have been sold for cash.
I have several times decided against the commissions. Years ago It was urged that it was usual. I decided against the Claim as inconsistent with the contract itself. In one clause of the articles the seamen bind themselves to serve for the share of the proceeds set against their names. If this, stood alone, the inference might be that they were joint owners of the product of the voyage; but another article says that the seamen shall receive payment for their shares as soon as the oil can be sold and the accounts made up. It is apparent that they are not intended to be owners or to have a share of oil, and it was long ago so decided, but they are to be paid. Then it is clear the owners are to have the property in the oil. It is the duty of the officers and seamen to bring the cargo home, and deliver it to the owners; then the owners are to sell it and make up the accounts;, that they have engaged to do, and they have no inore right to charge for their personal services in doing what they have promised to do. than the seamen would have to charge monthly wages. A practice to the contrary is in direct violation of the contract. It must have grown up from error or by reason of the character of the men dealt with; acquiesced in, because the individual amount was small, the crew in a hurry, and it was not an object for them to contest it. These charges must be disallowed.
Then as to price. In my view, the articles contemplate a cash sale. The.oil is to be sold as soon as it can fairly be put into the market, and sold for cash.' It was never contemplated that the seamen should wait four or six months, or that the owners should have the power of making them submit to their terms to obtain the ready money. The duty of the owner is clear, to will for cash in a reasonable time and with reasonable efforts. If he has not done só/then the other •party must be put in as good a condition as if he had. If, therefore, a; sale is made on credit for a larger price, all the owner ■is responsible for is the price Of a cash sale: he is not bound by the credit sale. That may come in as evidence, but it is not the rule. In this case, on the assessor’s report, I must allow two cents a gallon, as the difference between the cash and credit price.
The next claim is, that the owners should be allowed the value of the casks, a strong argument is urged from the language of the articles: it is said, the crew are to be paid from the product of the voyage, and ■ that therefore they have only a right to the pro-, ceeds of the oil and bone, and the price of the oil must be ascertained independently of the casks. On the other hand, we must consider that the articles are extremely abstinent in regard to the duties of the owners. If we look at these articles alone, no obligation will be found on their part to furnish casks at all. If this were the first whaling voyage.
The next question is one of appropriation of payments. The respondents contend that the payments made to the libellant’s wife during the voyage, and to the libellant on his return, should be applied to his lay. On the other hand, the libellant says the payments should be left to be applied to his account as part owner. The libellant’s counsel say that these advances were not payments, as nothing was due when they were made. That is true; they are not, strictly speaking, payments, and the same may be said if you attempt to appropriate them to the account with him as'owner. So both stand cm equal ground here. What was the real understanding as to these advances? I do not suppose in such cases ..they are thought to be mere loans, creating a debt that may be sued at once, but an advance to come into the settlement of the,voyage; and there is no claim for repayment till then, if at all, in case the voyage does not amount to so much. If the libellant was only master, no question would arise.; but here he. is also owner, and he says he has his choice to appropriate to that account. But there is great difficulty in this. It seems to me that when advances have been made the owner may say, I am to be repaid out of the first settlement. I have a right to deduct from either. That is most probably the understanding, and is what the owner might well have insisted on. In point of fact, the lay of the master, if settled separately, would be settled first, and the payments would generally be deducted from the lay. I see no reason why I should compel an owner to pay the whole of the master’s lay, and turn him over to the chance of getting his pay in another settlement. One insurmountable obstacle is that a court of admiralty does not take cognizance of accounts of part-owners, unless incidentally. Now, if I took the libellant’s view, it would be necessary for me to go into those accounts to see if there is any thing due from which the respondents could deduct the advances. It may turn out as between the owners that nothing is due to libellant as one. I shall therefore deduct these payments from the lay.
The last question arises upon the use of spirituous liquors by the master, and his violation of the provisions of the shipping articles against taking them on board as his private stores.
First, as to the question of forfeiture. The articles prescribe a forfeiture of the wages for' the whole voyage. But I shall treat this as forfeitures are generally treated, — they are to be cut down to a just amount under all the circumstances. I cannot suppose, indeed, that it was really intended that a total forfeiture should be made as prescribed. Some voyages are four or five years in length; then If any seaman should, after four years of faithful service, bring on board, when liberty was given on shore, a single bottle of liquor, he would, by the terms of this provision, forfeit his whole voyage. It cannot be supposed that such an injustice was intended by the owners.' I have therefore no hesitation in saying that the court are not called on rigidly to inflict the whole of this forfeiture.
But then the inquiry arises, when this stipulation has been violated, as is proved here to be the case, what shall be the actual amount inflicted as a penalty? ' That is the most difficult question. I have no guide. Certainly, where the master, who has entered into this agreement himself, and whose duty it is to see that others observe it, violates it habitually, he has no claim for indulgence. The proof of the extent of his misconduct in this matter is somewhat conflicting, and less satisfactory than could be desired. (The judge here adverted to the evidence.) There is no testimony that any particular damage was done to this voyage, but no question that the master had liquor on board, and drank frequently. The damage is then left to inference. It might be inferred that he was less competent, that it disturbed his judgment, caused delay in port, recklessness in management, &c. These are all matters of inference, and it remains true that there are no specifications of injury. Then, also, the fact is to be considered, that this was a fair voyage or something- more. I am left to say how much should be inflicted as a deduction. I suppose men of certain views might inflict the whole amount, while another class would say, nothing, without proof of special damage. I think there should be damages given without proof of special damage. I hold the contract to be‘ an important one, and one that the owners have a right to make, and to see that it is enforced. If the master does not intend to abide by it, he should not go the voyage. It can never be ascertained with certainty, how much the
