30 F. 261 | S.D.N.Y. | 1887
The libel in ibis case was filed to recover the sum of §576.86, the balance of freight due the ship Reporter upon the delivery of 1,129 packages of lea brought from Hong Kong, China, and delivered to the defendants in February, 1886. The answer denies that the goods were delivered by the ship to the defendants, and alleges that the delivery was made by the ship to Russell & Co., and that Russell & Co. delivered the teas to the defendants, and that on the voyage the cases wore so damaged by the carrier’s negligence that the cases required cooperage to tlio amount of some §500, which they claim to offset, if liable at all. The tea was shipped at Amoy, China, by Brown & Go., on board the steamer Esmeralda, and a bill of lading therefor, dated September 25,1885, ivas given, signed by the “Agents of Russell & Co., Charterers of the Reporter,” which recited the shipment of the tea by “Brown & Co. in good order, on board the Esmeralda, bound for llong Kong, * * * for transhipment to American ship Reporter for Hew York, and to he delivered, in like good order and condition at New York, to the order of Messrs.
Russell & Co. were engaged in the business of carriers and forwarders from Amoy, and at the time of the above shipment had obtained a charter of affreightment of the libelant’s, ship Reporter for a voyage from Hong Kong to New York, for the round sum of $10,000 in gold, “in full for the whole capacity of the vessel.” The charter provided that bills of lading “should be signed by the captain atvany fate of freight without prejudice to the charter-party, and that the captain should have an absolute lien on the cargo for freight.” On arrival of the Esmerelda at Hong Kong, the tea was transhipped to the Reporter, and bills of lading therefor signed by the master of the Reporter on October 2, 1885; reciting that the goods were shipped in good order by Russell & Co. on board the Reporter, bound for New York, and to be delivered there “to Russell & Co., as agents; freight payable in New York at the rate of 25 shillings sterling per ton; not accountable for leakage or breakage.”
On arrival of the Reporter in New York in February, 1886, the custom-house broker of the defendants, to whom the original bills of lading had been given, for the purpose of entering the goods in the customhouse, finding that entry could not be made without the bills of lading of the Reporter, surrendered the Esmeralda’s bills of lading to the libel-ants’ agents here, and received instead thereof bills of lading signed by the master of the Reporter. Upon the latter bills of lading the goods were entered at the custom-house by the defendants, and delivery of the tea was made directly from the Reporter to the defendants at the wharf, whence they were carried to the warehouse designated by them.
The evidence shows that, though no tea was lost, the eases were considerably broken, and required cooperage as stated in the answer. There is no evidence to show any negligence on the part of the Reporter. The master states that he observed the„condition of the cases when they were received on board of the Reporter at Hong Kong, and that they were in the same condition when delivered here as when they were received there, and that no damage arose on the Reporter. The stoivage on the Reporter was good, and there was no evidence of any derangement of the cargo, or of any rpngh usage. Upon the question of fact, it must be assumed that the breakage arose prior to the receipt of the goods at Hong Kong, for which the Reporter, and the libelants, as her owners, are in no way responsible.
The question for determination is -whether, under the above circumstances, the Reporter is entitled to collect the whole freight stipulated, .or whether her demand for the agreed freight is subject to any offset on account of negligent handling prior to her receipt of the goods.
1. The respondents are liable personally to pay whatever freight the Reporter was authorized to collect, and for which she might have main-
2. It is well settled in this country that each carrier on a through bill of lading, or on connecting lines, is liable only for the negligence that arises on his own lino, unless some different understanding bo shown, or circumstances upon which such an understanding should he inferred. Railroad Co. v. Pratt, 22 Wall. 123, 95 U. S. 43; Harding v. International Nav. Co., 12 Fed. Rep. 168. The fact that a through rate is .stipulated for is not sufficient to prove such an understanding. Stewart v. Terro Haute, etc., 3 Fed. Rep. 768, 1 McCrary, 312. There is no evidence of any such understanding between Russell & Co. and the master, of the Reporter as should make the latter liable for the faults of the former; nor, as respects the carriage of the goods from Hong Kong to New York, was there any relation of principal and agent between them, although Russell & Co., by their original bill of lading may have made themselves answerable for the whole distance. See The Bernina, 12 Prob. Hiv. 36. The master of the Reporter acted by an independent contract with Russell & Co. He had chartered the whole capacity of his vessel to Russell & Co. for a lump sum, stipulating that for his security for the pay nient of that sum ho should have a lien upon the cargo for his freight. This is the usual form of a charter of affreightment. Under ibis arrangement, which the shippers at Amoy, by acceptance of the bill of lading, assented to and authorized, Russell & Co. were alone liable for negligence before transhipment, and both Russell & Co. and the Reporter for any subsequent negligent damage.
There is nothing in those relations or in the charter-party that can serve to charge the master of the Reporter with any responsibility for the negligence of the Esmeralda, or of Russell & Co., before the transhipment at Hong Kong. The teas might have been damaged by such prior negligence far beyond the amount of the whole freight. It could not be contended that the Reporter, or her master, upon any evidence in this case, could be made liable for any such excess of damage; and, if not liable for the excess of damage, whatever it might be, how can slio be made liable for any part of it that was not occasioned by her own fault? And, if not liable for any part of the damage, none can he legally offset against her just claim for freight. There was nothing in this ease to mislead either the shippers at Amoy, or their vendees, the respondents here, as to the rights of the Reporter, or as to the per
Upon bills of lading where no transhipment is provided for, if the vessel is under the necessity of transhipping the goods at an intermediate port, through disasters at sea, it is said by the supreme court in the case of Hugg v. Augusta Ins., etc., Co., 7 How. 595, 609, that “the owner of the cargo is liable for any increased freight arising from the hire of. another vessel.” Searle v. Scovell, 4 Johns. Oh. 218; Worth v. Mumford, 1 Hilt. 1. Doubtless, communication with the owner, w’here practicable, ought to be had. Gibbs v. Grey, 2 Hurl. & N. 22, 31; Matthews v. Gibbs, 3 El. & El. 282, 303. The right in such cases to recover any excess of freight is doubtless a controverted question, and depends upon the view taken of the extent of the master’s authority. See Emerigs, Ins. (Meredith’s Ed.) 342, 345; Pardessus, Droit Com. 644, 715; Boulay-Paty, Droit Mar. 400, 405. Contra, 1 Valin, Comm. 651, 653; Poth. Charter-parties, 68.
Had the claim to freight stood only upon the right of Russell & Co., doubtless it would have been subject to be offset by the damage which was a legal demand against Russell & Co. But such is not the nature of the libelants’ claim. They sue, not upon any right of Russell & Co., but upon the right of the Reporter, as an independent carrier from Hong Kong, a right which is impliedly recognized and provided for in the original bill of lading.
Where a new bill of lading is given upon a transhipment, it is said to be usual to make the goods “deliverable to the holders of the original bill of lading, duly indorsed, to prevent conflicting claims under the two bills of lading.” Scrutton, Charter-parties, art. 56, p. 115. In the present case the form of the second bill of lading, to “Russell & Go., as agents,” was evidently designed for the same purpose. Its meaning is that the goods were to be delivered, not to Russell & Co. for themselves, but as the property and for the benefit of whoever held the original bill of lading given by Russell & Co. Upon the delivery and transfer of the Reporter’s bill of lading by Russell & Co. to the respondents, the owners of the property, and their surrender of the former bill of lading, the legal effect became the same as if the Reporter’s bill of lading had been directly to the respondents.
Upon arrival here, the agents of Russel] & Co. appear to have acted also as the agents of the Reporter in collecting the freights. The bills for the freight rendered by Russell & Co.’s agents show that the claim against the respondents was for freight due “to owners of American ship Reporter.” In the subsequent settlement by Russel] & Co. with the local agents of the ship here for the $10,000 charter money, the claim in suit uncollected was turned in as a part payment, and the balance only appears to have been paid to the. libelants in cash.
There is no evidence to show that the whole amount of this freight was not needed to make up the charter money due to the Reporter. It does