277 F. 889 | 5th Cir. | 1922
This was a libel by the appellant, Pensacola Shipping Company, against the appellee, United States Shipping Board Emergency Fleet Corporation, to recover the amount of payments made by the appellant for coal and other necessaries furnished to the steamship Belair, a vessel belonging to the appellee, between the date of its arrival at the port of Pensacola' on January 10, 1920, and its departure therefrom on January 28, 1920. The evidence adduced showed that the amounts claimed were paid by the appellant under the following circumstances:
On December 22, 1919, a New York firm of ship agents sent to the appellant at Pensacola a telegram, of which, omitting the address and signature, the following is a copy:
“Dale Universal have Belair due Pensacola ‘first Jany. to load lumber for Plate can arrange ag.ency for you fifty dollars want quotation five hundred bunkers wire whether agency acceptable you stop they intimate possibly have several sailings monthly.”
On the next day the appellant replied to that telegram by one stating, “Dale Universal agency acceptable at fifty dollars,” and quoting
disbursements, yon will kindly send us your full accounts Immediately upon completion of vessel and we will then reimburse you.”
The appellant handled the agency according to the charterer’s instructions. The disbursements, except a small amount for telegrams, ,were made by paying bills for the supplies, etc., rendered against the vessel itself and approved by its master. Soon after the vessel sailed from Pensacola the appellant sent a statement of the disbursements it had made to the charterer’s New York agent, and requested payment thereof. The account was returned with a letter directing that it be sent to the appellee for payment. In response to a letter from the appellant on the subject, the appellee declined to pay, denying liability foi disbursements for which the ship was not responsible under the terms of the charter party. What was alleged to be a copy of that instrument was made an exhibit to the appellee’s answer.
The evidence as to the circumstances under which the appellant was-put on inquiry as to the terms of the time charter party referred to in a letter to it from its principal, the charterer, persuasively calls for the conclusion that, if the appellant had exercised reasonable diligence, it would have ascertained, before it made the payments in question, that, both its principal, the charterer, and the master, were without authority to bind the vessel or its owner therefor. As above stated, the appellant was in direct communication with the charterer during a considerable time before it was called on to make payments in pursuance of the charterer’s instructions and on the faith of the latter’s promise of reimbursement. Under the circumstances the agent reasonably could have expected that an inquiry of its principal would elicit information as to the terms of the charter party bearing upon the question of the right or lack of right to bind the .vessel for supplies or other necessaries furnished or paid for at the instance of the principal. The agent was entitled to be informed by the principal in that regard, as no liability of the ship or its owner would result from payments made for supplies required to be furnished and paid for by the principal, the charterer. If information as to the terms of the charter party had been withheld after a timely request therefor, it is not to be supposed that the agent would have made the disbursement pursuant to the principalis instructions, unless the agent! intended to look to the principal alone for reimbursement, or was influenced by the mistaken belief that the vessel would be responsible for the value of the supplies and other necessaries so- furnished, whether by the terms of the charter party the charterer was or was not required to provide and pay therefor.
The fact that the appellant was in touch with the charterer a considerable time before the payments in question were made distinguishes-the instant case from the case of W. G. Coyle & Co. v. North America Steamship Corporation (C. C. A.) 262 Fed. 250. In the cited case there was no evidence tending to prove that any one who was to be presumed to be able to furnish information as to the terms of the charter party was within reach of the libelant at or prior to the time the supplies were furnished. We think that the evidence in the instant case warrants the conclusion that the appellant’s ignorance of the terms of the charter party is to be attributed to its negligent failure to try to get that information before it paid for the coal, etc. It is disclosed that appellant did not avail itself of accessible sources of information in that regard, because of the mistaken belief that the vessel would be bound for the amounts so disbursed, whatever might be the terms of the charter party. It is plain that the making, long after the-appellant paid for the coal, etc., of the request by the appellant of the appellee for information as to the terms of the charter, was not the
“liefer your letter fourteenth Belair Accounts Slop Pensacola disbursements should he submitted this office for audit we return them to you Cor transmittal to Dale Universal Dine latter should then reimburse you immediately.”
The appellee’s previous letter, which contained the above-mentioned denial of responsibility, contained also the following:
“Yon did not, however, transmit copies of hills upon which I could determine what is chargeable against the Shipping Board and what is chargeable against the charterers. Upon receipt of these bills I shall be glad to issue necessary instructions for our managers to pay such bills as were disbursed by you for account of the owners.”
The charter party contained the following provision:
“That the owners shall provide and pay for all provisions, wages and consular shipping and discharging fees of the captain, officers, engineers, firemen and crew; shall pay for the insurance of the vessel; also for all thfe*894 cabin, dock, engine room, and other necessary stores; and shaU exercise due diligence to maintain her in a thoroughly efficient state in hull and machinery for and during the service.”
An examination of the account by the appellee was appropriate to enable it to ascertain if payments made by the appellant covered things which the owner was required by the charter party to provide and pay for. The appellee’s request that the accounts be submitted to it for audit was made under circumstances which negative the conclusion that the appellant was influenced thereby to refrain from enforcing its claim against the charterer, or otherwise to change its position. A reasonable person, situated as the appellant was, could not have been misled as to the significance of the request that the account be submitted to the appellee for audit, as, when that request was made, it had been unequivocally disclosed that the appellee refused to be responsible for the appellant’s outlay, so far as it was for what the charter party required the charterer to furnish and pay for, but was willing to make reimbursement for so much, if any, of the outlay as was for things which the charter party required the owner to furnish and pay for. There is no merit in the contention that the appellee estopped itself to deny or defeat the liability asserted by the libel.
Tlje conclusion is that, under the facts disclosed, the claim asserted by the libel was not maintainable. It follows that the decree appealed from should be affirmed; and it is so ordered
Affirmed.