84 F. 495 | 8th Cir. | 1897
after stating the case as above, delivered the opinion of the court.
Courts in admiralty, like courts of equity, hasten to consider the substance of right, and do not tarry long on mere matters of form. Hence we shall not stop to discuss certain questions of practice suggested by counsel for appellant, merely remarking in passing that we see nothing in any ruling in respect thereto which wrought injury to the substantial rights of the appellant. Obviously, if only the findings of fact are before us for consideration there can be little doubt of the justice of the decree. There is a distinct finding of an unreasonable detention, of the time of such detention, and the damages caused thereby. Nor is there anything in the other findings which diminishes the significance of this one, or operates to relieve from the conclusion which it compels. Bo that, if this were a common-law action coming from a trial court, which, without a jury, found specially these facts, the propriety of the judgment would be beyond dispute.
It may be doubtful whether the act of February 16, 1875 (18 Stat. 315), is applicable to this case, or, indeed, whether it has not been entirely superseded. The first section of that act required circuit court's, in deciding admiralty cases, to find the facts, and provided that the' review in the supreme court upon appeal should be limited to a determination of questions of law arising- upon the record. It relieved the supreme court from the consideration of any mere questions of fact. The E. A. Packer, 140 U. S. 360, 11 Sup. Ct. 794; The City of New York, 147 U. S. 72, 76, 13 Sup. Ct. 211, and cases cited in the opinion. In favor of the contention that it is applicable to
It is contended, in the first place, that the finding of the court that (here was an unreasonable detention cannot be sustained, because it appears that there were no public docks at the port of Duluth with capacity sufficient to receive and support this cargo, and equipped with coal-discharging machinery, and that to have made arrangements for discharging the cargo at one of those docks would have taken from eight to twelve days; that, including the dock of claimant, there were hut five private docks, and that no one of them would have taken and received the coal for storage; that, as the cargo
These considerations also obviate any objections that are suggested by reason of the fact that claimant did not own the coal, that it had made no contract with the boat, and that it was under no obligation to. the owners of the coal to accept and discharge the steamer of its cargo. The demurrage insisted upon is not a personal claim against the Pioneer Fuel Company for a breach of its contract, but arises out of the breach of the contract made with the owners of the coal for whom the carriage was undertaken. The vessel had nothing do do with the question of the ownership of the coal, or any contract made or to be made in reference to a sale. It did not contract to carry the coal to Duluth, and hold it there while the owners should make arrangements for a sale. Its contract was to carry and deliver it to the claimant, the Pioneer Fuel Company, and, of course, impliedly, at its dock, where it was in the habit of receiving such shipments. It had no right to know (and, as a matter of fact, did not know) whether the coal had been sold to the claimant, or whether it was to be received by the claimant for purposes of sale. Those were matters between the claimant (the consignee) on the one hand, and the shippers (the owners) on the other. The contract was one of carriage free of handling; that is, the shippers were to see to the matter of loading and unloading. It was a duty resting upon them, and any failure on their part to promptly discharge this duty gave to the boat a right to recover damages. It would be strange, indeed, if, making a contract like this to carry a cargo free of handling, a steamer could be compelled to
It is further claimed that these damages are not recoverable, because when the claimant finally purchased the coal it notified the master of the vessel that it would not he responsible for freight or demurrage. It subsequently agreed to advance the freight, and, after this action was commenced, did so. But a notice of this kind did not affect the claim for demurrage. Whatever arrangements might be made between the consignee and the owners, whether for a purchase by the consignee at a fixed price or even for a donation by the owners to the consignee, are immaterial, so far as (he claim of •i‘.e vessel for demurrage is concerned. And this claim is not at all interfered with although full notice is given to the master of the vessel of the terms and conditions of the contract between the owners of the cargo and the consignee.
It is also insisted that the vessel consented to the delay, and waived any claim for demurrage; hut this is a mistake. On the-27th of July the master of I he vessel served a written notice upon the claimant that the cargo had been ready for delivery ever since •July 24th at 7 a. in., and that the vessel would look to the cargo for aenmn-age at the rate of §200 per day, beginning July 21fh; and one of The owners of the boat also gave personal notice to the same effect. It is true that the agent of the boat at Duluth was aware of negotiations looking to a sale of the coal to the claimant, and took some part in assisting in those negotiations; but, in the face of the written and verbal notices given by the master and one of the owners of the vessel, it cannot he held that there was any waiver of the right to demurrage.
blindly, it is said that the lien was lost because the cargo was in fact delivered, hut ihe rule is settled that the mere unloading of a cargo does not discharge the lira. That may be only a conditional delivery, and, unless there he circumstances to show an abandonment of the lien, as where other security is taken, or unless the cargo when delivered is so mixed with other goods as to he incapable of separation and identification, the lien will continue. In this case it appears that there was distinct notice from the vessel to the claimant that the lien on the cargo would he insisted upon, and the coal, when unloaded, was placed in a pile by itself, and so situated with
It is claimed by the libelants that the amount of demurrage allowed was not sufficient, and they insist that, although they took no appeal from the decree, the appeal on the part of the claimant brings the whole case into this court for a rehearing, and upon the facts as presented this court is at liberty to increase the amount of the award,—citing Irvine v. The Hesper, 122 U. S. 256, 7 Sup. Ct. 1177, in which it was held by the supreme court that such was the rule on an appeal from the district to the circuit court. But the appeal from the district to the circuit court simply transferred the case from one court to another for trial, and it may be questioned whether that rule applies in a case brought to an appellate court for review. But, be that as it may, we do not find in the testimony sufficient to justify us in disturbing the conclusions of the district court in this respect. The fact of damage, and the actual amount thereof, must be clearly shown. The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510; Empire Transp. Co. v. Philadelphia & R. Coal & Iron Co., 40 U. S. App. 157, 23 C. C. A. 564; and 77 Fed. 919, and cases cited in the opinion. Upon a careful examination of the testimony we are not satisfied that we should be justified, even if we had the authority, in disturbing the conclusions reached by the trial court.
These are all the questions we deem worthy of consideration. Upon the record, as it stands, we find no error calling for a reversal or modification, and the decree of the district court is affirmed.