228 F. 143 | D. Mass. | 1915
This is a libel by the owner of the steamship Symra against the cargo- and freight, to recover the balance alleged to> bo due for the hire of the steamer under a charter to- the Canadian-Venezuelan Ore Company. I shall speak of that company as the Ore Company, and of the charter to it as the charter.
The charter was on what is known as the government form, and was “for the time of about thirty-six calendar months from- the day of her
It was further provided that “the owner shall have a lien upon all cargoes for freight or charter money due under the charter.” The charterers were “to have the option of subletting the steamer.” The captain was to be'under the orders and directions of the Ore .Company “as regards employment, agency, or other arrangements,” and was to sign bills of lading at rates of freight as directed by the Ore Company; and the Ore Company was to “indemnify the owner for all consequences or liabilities that may arise from the captain so doing.” The charter also contained numerous other provisions.
The Ore Company sublet the steamer to the Munson Cine, the claimant, under a charter similar to that from the libelant to the Ore Company. In the charter to the Munson Cine, the Ore Company were described as “time charterers” of the steamship. The Munson Cine loaded the vessel at Progresso, Mexico, for Plymouth, Mass., with a cargo of hemp consigned to Henry W. Peabody & Co. The rate of freight was agreed upon between the Munson Cine and Peabody & Co. The bill of lading was on a Munson Cine form, and was signed by the captain as master. The freight was payable on delivery.
, Before loading with the hemp at Progresso, the vessel had been at or near Havana, Cuba, with a cargo of coal shipped under a Mun-son Cine bill of lading, on which the freight was also' payable on delivery. There was at that time a balance due to the libelant for the hire of the steamer, and counsel for the libelant threatened to enforce by proceedings at Havana the lien for such balance which he claimed the libelant had under the charter on the cargo of coal and freight. Thereupon counsel for the Munson Cine gave an undertaking which was satisfactory to counsel for the libelant, and the steamer was allowed to proceed on her voyage. Subsequently a stipulation was entered into between the parties, the object of which was and is to put the parties, without prejudice to the rights of either, in the same position as they would have been in, if the cargo here in question had been in the vessel’s hold with the freight unpaid at the time of the filing of the libel, and both had been duly attached.
The Munson Cine has accounted for and paid over to the Ore Company, directly and through garnishee proceedings in New York instituted by the libelant, all that was due from it to that company for the hire of the steamer under the subcharter from the Ore Company to it. It does not appear, if material, whether these payments were before or after notice was given by the libelant of his intention to enforce his alleged lien; and no question has been raised as to the effect
This gave the charterers, as the charter was no doubt intended to do, such control of the ship as was- necessary for the passenger and freighting business for'which they chartered her, but left the ship itself in the possession and management of the libelant, with the result that he thereby had. such possession of the cargo as if possession is one of the things necessary to a lien on the cargo — as it undoubtedly is — was
Not only.is there nothing in the charter limiting in terms the cargoes on.which a lien was reserved to those shipped by the charterer, but I think that such a construction would not be warranted as matter of law. It is said, in American Steel Barge Co. v. Chesapeake & O. Coal Co., 115 Fed. 669, 53 C. C. A. 301, of the clause similar to this:
“Neither the origin nor the history o£ the clause * * * can be clearly traced.. * * .* That, however, it was not framed simply with reference to furnishing a lien on a cargo belonging to a charterer, seems to follow from Paul v. Birch, 2 Atk. 621, where, as early as 1743, it was held sufficient to bind to the owner of the ship a cargo in which the charterer had no interest."
And in Portland Flouring Mills v. Portland Steamship Co. (D. C.) 145 Fed. 687, it was held that the lien referred to in a similar clause in a bill of lading was the maritime lien as understood in the jurisprudence of, the United States, and that the effect of it was or might be to preserve the lien where it might otherwise be deemed to°be •waived by other provisions relating to the time and manner of paying the freight. Whatever, therefore, may be the true ground on which the provision rests, it is clear, it seems to me, that in the present case it gives to the libelant the benefit of the lien which the ship has for its carriage on the cargo as security for the payment of the charier money.
The fact that the claimant has paid the Ore Company what was due from it to that company does not create an equity in its favor. The Ore Company was described in the subcharter as a “time charterer.” In addition, Mr. Robinson, previously referred to, testified that he knew that the Ore Company had a time charter of the vessel and was not the owner. The Munson Line was bound, as a matter of prudent business conduct, to examine the charter of the Ore Company, and to govern itself by the provision therein reserving to the owner a lien on “all cargoes” for the charter money. See Gracie v. Palmer, 8 Wheat. 616, 5 L. Ed. 696. The payment by the Munson Line to the Ore Company must, I think, be deemed to have been made at its risk.
It follows that the libelant is entitled to maintain and enforce the lien on the-cargo for the purpose of, enabling him to recover the charter money due from the Ore Company. See The Albert Dumois (D. C.) 54 Fed. 529; Wehner v. Dene Steam Shipping Company, Ltd., [1905] 2 K. B. 92. As incidental to that, he has a right to pursue the freight,
The remaining question relates to the amount which the libelant, is entitled to recover. It is in substance agreed that that is $1,635.62, with interest and costs, unless that amount should be proportionately reduced by the withdrawal of the vessel by the libelant from the charter to the Ore Company on February 2, 1914, at 3 p. m., as alleged by the claimant, instead of on February 5th, as alleged, by the libelant. The charter provided that, on default of the Ore Company in the payment of the charter money when due, the libelant could withdraw the vessel from its service. There was a monthly payment due from the Ore Company to the libelant on January 5, 1914, for the month ending February 5th, which was not paid when due. It is the balance of this payment which the plaintiff seeks to recover.
According to the deposition of Capt. Handeland, the master of the ship, she arrived at Plymouth on January 28, 1914, with a cargo of hemp from Progresso, and commenced to discharge at 11 o’clock a. m., and finished discharging at 5 p. m. on the 29th, the next day, when the ship was redelivered by the Munson Line, the charterers of that voyage, to the Ore Company. The vessel sailed from Plymouth for New York February 2d at three p. m., aud it is a‘ fair inference from the deposition of Capt. Handeland that he sailed pursuant to orders which he had from his owners to proceed to New York for orders. On February 4th a formal notice of withdrawal from the charter for nonpayment of the last monthly installment was served on the Ore Company by Bowring & Co. of New York, acting for the owner. This recited that:
The “steamer Is now at Plymouth, having completed the discharge of her outward cargo there, and thus ended her charter with the Munson Steamship Company, and, as it becomes necessary to arrange further employment, and inasmuch as you have not paid the last installment of hire due, and have advised us that you cannot continue the vessel under your charter and continue to pay hire for her, the owners notify us to inform you that they accordingly withdraw the boat immediately from the charter with you. * * * ”
Mr. Richards, referred to above, testified that the vessel was withdrawn February 5th. The recital in the notice that the “steamer is now at Plymouth,” on which the notice was based, was manifestly an error. Although the notice was not given until after the steamer had left Plymouth, it is plain, I think, that the intention was to withdraw the steamer from the charter when she had finished discharging her cargo at Plymouth, and had tints terminated her charter from the Ore 'Company to the Munson Line. When the captain sailed from Plymouth to New York on P'ebruary 2d, pursuant to orders from his owners, as he deposed, the vessel was in fact withdrawn from the service of the Ore Company. It follows that the sum claimed should be proportionately reduced.
Decree accordingly.