255 F. 917 | D. Mass. | 1919
This is a suit in rem to enforce a lien of the libelant upon the cargo of the ship George S. Repplier for carrying 9,889 bags of malt from Hoboken, N. J., to Mystic Wharf, Boston, and for four days demurrage.
The contract of carriage is shown by the bill of lading, by correspondence, and by oral testimony of conferences of the libelant with one Elder, who appears to have been the agent for Renke, the undisclosed principal. It appears that the undertaking on the part of the libelant was to get the malt to Boston, to deliver it to Mystic Wharf, and to use all diligence to catch the steamship Moorish Prince, upon which the malt was to be carried from Boston to a foreign port.
From an examination of the proofs, it appears that the contract was made on July 12, 1917. On July 13, at 7 in the morning, the libelant produced the barge for loading in Hoboken, N. J. Late in the afternoon of July 15, the barge was being loaded by the shippers. The necessary bills of lading were not produced until July 16. The barge then sailed through Hell Gate on July 17, and proceeded the same day to Whitestone Head off Long Island Sound.
The testimony must be held to prove that up to July 17, the time which had elapsed was due to the loading of the barge by the shippers, over which the libelant had no control, and to the delay of the shippers in producing the necessary bills of lading. The voyage was made without further delay, except for the thick fog which prevailed.
The testimony tends to show that the delay in reaching Boston was from 'no fault of the libelant, but from conditions of weather, or, in other words, from perils of the sea.
The libelant engaged a towing company to take the barge; he also gave orders for prompt action. He appears to have used reasonable diligence in making the voyage. His contract was not to reach the Moorish Prince, in any event before she sailed, but to use all diligence to reach her.
He has met the burden of proving that he did use such diligence, and that he performed his contract.
“Courts of admiralty, when carrying into execution maritime contracts and. liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usage's and necessities of trade. !S * It. is the interest of the shipowner that Ids vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery. And it would he a serious sacrifice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with, her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty.” '
See, also, Costello v. Cargo of Laths (D. C.) 44 Fed. 105; The Anna Kimball, 2 Cliff. 4, 15, Fed. Cas. No. 7,772.
Under the maritime law of this country, a manual turning over of cargo by shipowners to an independent warehouseman, or even to the consignee itself, does not of itself operate of necessity to discharge their lien for freight. Where the intent of the shipowners in making such delivery is merely to discharge the cargo, and not to deliver it, their lien for freight remains in full force. ‘ 600 Tons of Iron Ore (D. C.) 9 Fed. 595, 597; 151 Tons of Coal, 4 Blatchf. 468, Fed. Cas. No. 10,520; Davidson S. S. Co. v. Bushels of Flaxseed (D. C.) 117 Fed. 283.
Tn the case before me, the testimony proves that the libelant has earned his freight, and that he did not intend to lose his lien by abandonment of possession. According to the liberality of the admiralty law, he is still able to enforce the lien against the cargo. The price for the libelant’s services, fixed by the contract, appears to have been
A decree may be presented for the libelant, for the sum of $2,649.07. The libelant recovers costs.