48 F. 463 | D. Me. | 1890
These controversies arise from a charter-party executed by Swanzy et 'al.. as charterers and Benjamin Webster, agent and managing owner of the brig Giles Loring, June 9, 1885. The brig, then lying at Boston, was chartered—
“For a voyage from Boston to ports on the west coast of Africa, between Grand Bassam and Whydali, both'included, vessel at all times to He afloat in safe anchorage, and’ to enter no rivers and cross no bars for discharging outward cargo, and loading a return cargo from a final port, either to Boston, united kingdom, or continent, at charterers’ option; and it is understood that, during vessel’s stay on the coast, charterers or their agents shall have the right to order the Vessel at'.'any. time from one port on the coast to another, at such times and in such manner as they may see fit-, on the terms following, that is to say:
“First. The said party of the flrst part doth engage that the said vessel in and during the said voyagfe shall be kept tight, stanch, well fitted, tackled, and pr.o.vided with every requisite, and with men and provisions necessary for said voyage. Second. Puts whole vessel at sole disposal of charterers for the voyage, except necessary room for crew, sails, cables, and provision.*465 Third. The said [owners] further engage to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as said party of the second part, or their agents, may think proper to ship.
“And the charterers covenant and agree to hire the vessel on the terms following:
“fi'irnt. They engage to provide and furnish to the said vessel a full and complete cargo of lawful merchandise under and on deck, or at all times sufficient ballast to continue the voyage; and it is understood that one-half of this charter is earned and payable on proper delivery of outward cargo, and that the charterers shall accept the captain’s sight draft on .London at $4.86 to the pound sterling for the said half; and it is understood that the charterers shall furnish the captain, while on the coast and other foreign ports, free of charge or commissions, any money needed for vessel’s disbursements. Second. To pay for the charter or freight of said vessel during the voyage aforesaid in manner following, that is to say: $5,300 lump sum for the round voyage, if vessel returns to Boston direct; blit, if vessel is ordered to Queens-town or Falmouth, for orders to discharge at a port in united kingdom, or on the continent between La Rochelle and Hamburg, $6,400; if to Gibraltar or Lisbon, for orders to discharge there, or at a port in the Mediterranean, not east of Marseilles, $6,800, — charterers to have the privilege of one port of call and one port of discharge only, port of call or discharge to be named on signing bill of lading, and forty-eight hours allowed charterers at port of call. Charterers to pay all vessel’s foreign port charges, such as pilotages, lighterages, custom-house and consul’s fees; balance of freight payable in U. S. currency, or equivalent, on proper delivery of homeward cargo.
“It is further agreed between the parties that there shall be allowed for the loading and discharging of the vessel at the respective ports aforesaid lay days as follows, that is to say: Ten (10) running lay days, Sundays excepted, for loading at Boston, sevonty-iive running lay days, Sundays excepted, for discharging and loading on the coast, commencing twenty-four hours after captain reports liis vessel ready to discharge cargo; time used changing ports on the coast to count as lay days; homeward cargo to be discharged according to the custom of the port, vessel’s crew to help discharging and loading on the coast, but not to go in boats for the purpose of landing or shipping cargo; and, in case vessel is longer detained, to pay demurrage at the rate of thirty-eight dollars and fifty cents per day, day by day, for every day so detained, provided such detention shall happen by default of party of the second part, or their agent.
“It is further agreed that, in going up and down the coast, vessel shall at any time charterers or their agents may desire take on board and deliver any lawful merchandise, free of charge at any factory, and in such manner as may be desired by charterers or their agents.”
The vessel was loaded at Boston, with a cargo suitable for the voyage she was to make, including a dock-load of lumber, and sailed from that port June 24, 1885, with a captain, first and second mate, cook, and four seamen, — eight in all, — and arrived on tho west coast August 24, making Grand Bassam as her first African port. Before the outward cargo was discharged, — indeed, while more than half still remained on board, — some small portion of the homeward cargo having been taken in, Evans, the captain, died, October 8,1885. Before his death, knowing that his mate, though an experienced sailor, was wholly incompetent to take command of the vessel, the captain communicated with Gapt.
The charterers libel for damages for breach of the charter, and the owners promote a cross-libel for freight and demurrage for 45 days, for wages of laborers hired by ship, the charterers tailing to furnish the men, as provided by the charter, and for the value of the vessel, alleged to have been lost by the fault, misconduct, and wrongful acts of the charterers and their agents on the coast.
It was contended on the part of the charterers that the libel of the .owners is not properly a cross-libel, but, upon a ruling adverse to this claim, they entered into a stipulation to answer to any decree against them, and put in an answer. I have no doubt of the correctness of the ruling on this point, as both parties assert their claiiná under the charter, and on its observance or violation their respective rights depend.
The speciiio breaches of contract asserted by the charterers are^ — (1} Failure to deliver cargo, by reason of unsoaworthiuess when the brig sailed from 15oston, in the condition of the vessel herself, and in not having competent and sufficient officers and crew. (2) Failure to keep the vessel in a seaworthy condition during the voyage, and sailing for Marseilles when il was known that the brig was unseaworthy. (¡5) Failure to forward the cargo from Minina after the brig had been condemned, though vessels could have been easily and readily procured to carry it. ( 1) The unjustifiable sale of the cargo by the master after the voyage was broken up.
The owners contend that the brig was seaworthy when she sailed from Boston in every respect, save the want of a competent mate, and that this failure did not contribute to the subsequent loss; that if the vessel after-wards became unseawortby, it was because of the wrongful acts of the charterers in overloading for the outward passage, and in unduly detaining the vessel on the coast, and keeping oil hoard of her the outward cargo; that the want of a suitable master after the death "of Capt. Evans was through the fault of charterers in not providing a proper person, as they are alleged to have undertaken todo; that the vessel was seaworthy when she set. out from Qnittah for Marseilles; tliat the failure to perform the charter was caused by perils of the sea after sailing for Marseilles; that they had never authorised Klose to act as captain, nor recognized him as such, oras in any way their agent; and that his possession of the vessel was through the fault of the charterers or their agents, and that for his wrongful acts and omissions they are in no wise responsible.
The Giles Luring was built in I860, and in 1884 reeeived extensive-repairs, after which she was given a class of A 11. On her outward passage the evidence shows she leaked some, but not enough, without
The condition of the vessel is claimed to have been occasioned by overloading at Boston, and by subsequent improper treatment on the coast, where it is said such proportion of the outward cargo was kept on board while the home-ward cargo was being laden as to overload her, and that in this way beams ivere broken, strains wore produced, and the hull kept submerged below the copper, and exposed fo worms, all by the fault of the charterers and their agents. This argument practically concedes the insufficient condition of the vessel, but, admitting that the particular method of loading and unloading- were as claimed, it does not exonerate the owners. The charter obliged them to lake a full cargo, and entitled the charterers to put such cargo on board, and for breach by cither in this respect an action could be maintained. It gave no right to overload, nor compelled the receipt of so much as would endanger the safety, or exceed the proper carrying capacity, of the brig. But it -was for the master to determine when the limit of safe loading was reached. The quantity and storage of cargo was subject to his control. If more was offered than was consistent with safety, he should have declined to accept it. The charterers were not responsible for the captain’s management. “If the master or sailors ship a larger cargo than is proper, they are considered in fault, and are liable for damages. Even if shipwreck ensue in consequence of the ship being too heavily laden, they are responsible.” Ingersoll’s Roeous on Ships and Freight, note, XXX.; Moll. De .Tur. Mar. bk. 2, c. 2, § 5; Weston v. Minot, 8 Woodb. & M. 486, 446-448; Hunter v. Fry, 2 Barn. & Ald. 421, 426; Sea Laws, 448, which may be found in 2 Pet. Adm. Append, p. 76; .Tac. Sea Laws, bk. 2, c. 2, p. 94, § 4.
This duty of the master also required him to see that his vessel was not loaded so deeply as to expose the hull to worms above the metal; and, if a full cargo would so settle his ship, he should have guarded against the danger by an addition to the copper, if it could be procured, and that it could, is shown by the evidence. It further appears that the copper was 11 to 111 feet high, and that the load draft of this brig was 13 to 131 feet. So with a full load, two feet or more of her planking would be unprotected. Injury by worms is not a peril of the sea. Rohl v. Parr, 1 Esp. 445; Hazard v. Insurance Co., 1 Sum. 218, 8 Pet. 557; Martin v. Insurance Co., 2 Mass. 420. “Where the owner of a vessel charters her, or offers her for freight, be is bound to see that she is seaworthy, and suitable for the service in which she is to be employed. If there be defects, known or-not‘known, he is'not excused. lie is
If it is considered that the absence of a competent master occasioned the loss, the responsibility does not rest on the charterers. It was the duty of the owners to provide for such a contingency as the death of a captain, especially on a voyage to the gold coast, by employing a mate competent to take the place. Richardson v. Winsor, 3 Cliff. 395. Seaworthiness includes competent master and crew. The Vincennes, 3 Ware, 171. It is true that upon learning the death of the captain, and the incompetency of the mate, they made honest and prompt effort to supply the deficiency, by invoking the aid of the charterers; and the charterers, in their turn, in good faith endeavored to comply with the appeal to them, and sent out a captain to take charge. The failure of the person thus sent out was not any fault of the charterers. After they had selected him, and given him instructions in behalf of the owners, he was the agent of the owners, appointed at their request. If he had any authority as master under that appointment, he was, as master, the agent of the owners, and they were responsible for him. But no blame can properly be cast on him. He found on his arrival that a master had been appointed by Capt. Smith, to whose charge Evans, when dying, committed the interest of his vessel, and by the American consul, which appointment gave Klose authority to act, and made the owners liable for his management of their vessel. The Jacmel Packet, 2 Ben. 109; Maclachl. Shipp. 158; The Zodiac, 1 Hagg. Adm. 320; The Alexander, 1 Dod. 278; The Kennersley Castle, 3 Hagg. Adm. 1-8; The Rubicon, Id. 9; The Tartar, 1 Hagg. Adm..l.
The failure to perform the charter being through the fault of the owners in not providing a vessel that was seaworthy, and in not keeping her so during the voyage* they are liable for the damages arising from that fault. The amount of damage must be decided on reference to a master; and, on the coming in of the report, the question of limitation of liability raised by the owners’ answer will be property presented.
Frcpi what has been said, it follows that the claim of the cross-libel for damages and injury to the vessel by misconduct of the charterers must be pronounced against. But the freight and demurrage and sums paid laborers may be regarded in considering the question of damages. Those matters are therefore left for further discussion on the report of the master.
on Master’s report.
(July 34,1891.)
The report of the assessor contains so full a finding of facts that, while not accepting or approving his conclusion in respect to dam
Mo error is found in tbe assessor’s determination as to tbe fact or tbe amount of demurrage, and the same is approved. But I cannot confirm his conclusions in regard to damages, lie correctly holds that the action of the master, Klose, in selling any portion of the cargo was unjustifiable, and was without the knowledge or authority of his owners, and that it has not since been ratified or adopted by them. From this unwarranted and wrongful conduct of the master no small part of the loss arose.
I concur in the conclusion of Brown, -I., in The Amos D. Carver, 35 Fed. Rep. 665, and followed by Nelson, J., in McPhail v. Williams, 41 Fed. Rep. 61, that “the act of 1884, limiting the liability of the owners of a vessel on account of tbe same, does not restrict the liability of owners upon their own personal contracts, but only their liability on account of the vessel.” But this interpretation of the statute does not make them liable without limitation for violation of his duty on the part of the master. The sale of the cargo by him was wholly apart from the owners’ contract, it is indeed true that by reason of the contraed ho had the opportunity to meddle with the property of the charterers; and it may be, that, inasmuch as the necessity for landing the palm kernels or removing them from the Giles Coring would not have existed had the owners performed their coniract that the ship should be seaworthy, they, in the absence of any law limiting their liability, would have been responsible for all the subsequent loss. But here we have a special loss from an independent cause, — -the misconduct of the master, — for whose tor-tious acts the owners are liable only to the extent of their interest in the vessel and pending freight. The argument has been pressed that the owners of the vessel, under the charter, became bailees for hire, and responsible for the sale delivery of the cargo against all hazards, the acts of God, public enemies, and perils and dangers of the sea alone excepted. To so hold would annul the statute exonerating owners from liability to respond beyond a limited measure for the fraudulent doings of others. The act of March 3, 1851, embodied in Bev. St. §§ 4282-4284, added to the excuses and accepted risks of the carrier or bailee. “This language is broad, and takes away the quality of warranty implied by the common law7 against, all losses except by tin» act of God and the public enemy,” is the emphatic expression of Sawyer, ,T.„, in Lord v. Steam-Ship Co., 4 Sawy. 301. Would the owners have any the less been bailees, or have stood in any different relation to the cargo, if their vessel, being in every respect stanch, seaworthy, and fit for the voyage, had encountered violent and continued storms, and had been by the winds and the sea driven ashore and helplessly wrecked? or if the loss had been caused by fire, or by the willful and criminal embezzlement of
Then what were those losses? They can be nothing but the value of the palm kernels sold to third parties, and the expense incurred by Burnett, the chartere's’ agent, to regain possession for them of the 110 tons of the cargo. These are the only losses attributable to the wrongdoing of the master. All expenses attaching to those 110 tons besides the amount paid at the sale to secure them are the same as they would have been if no sale had been attempted, and must be carried to the account of loss arising from the breach of charter as to seaworthiness of the vessel. By statute the limited liability is measured by the value of the ship and freight pending. These values are to be taken at the time of the termination of the voyage. In this case the voyage terminated at Elmina, when the brig was condemned and sold. The City of Norwich, 118 U. S. 468, 6 Sup. Ct. Rep. 1150; The Scotland, 118 U. S. 507, 6 Sup. Ct. Rep. 1174; The Great Western, 118 U. S. 520, 6 Sup. Ct. Rep. 1172. By the charter-party one-half of the freight was earned and payable on right delivery of the outward cargo from Boston to the west coast, and that half was accordingly paid. The other half was freight pending when the voyage terminated, and would be earned only on delivery of the cargo at its destination, before which it was of no value to the owners. The City of Norwich, 118 U. S. 491, 6 Sup. Ct. Rep. 1150. As that portion of the freight was never earned, nothing is to be added on its account to the value of the vessel, for the purpose of showing the amount of the owners’ liability. The only evidence as to the value of the vessel is that as to the price at which she was sold. Ko suggestion has been made of the inadequacy of that price, nor anything offered to excite the belief that the value exceeded the £68. 19s., the gross proceeds of sale. This in United States currency is equal to $835.09.
The' answer contains a statement that the proceeds of the sale of the vessel were appropriated to the discharge of liens of higher rank than the claims of the libelants. It is not for the owners to determine the priority of claims, or the distribution of the fund representing their limited liability. Neither is it their privilege to pass upon the question ^whether they are entitled to such limitation. There is a proper course Tor them to pursue if they seek the protection the law provides against 411 claimants. They have not pursued that course, nor indicated, except by the statement in the answer referred to, that there are any claims against them on account of this vessel, arising since the execution1 of the charter in this case, other than those of the libelant demanded in these proceedings. As to these demands they ask the benefit of the limitation. They can have a limitation, but cannot, by their voluntary act in disposing of a portion of tbe fund reserved for the satisfaction of their liability, restrict still more tlie limitation, or adjust the demands of claimants upon the fund.
Though I am of opinion, and decide, that, for the purpose of ascertaining the measure of liability, the demurrage due and unpaid must be treated as pending freight, yet in this case, the only party demanding damage being the same who is to pay the demurrage, the point is of little account, as, to this extent, the liabilities cancel each other. Had the limitation affected several creditors, the amount of the demurrage would make part of a fund for pro rain distribution.
Then, deciding that the owners of the ship are entitled to a limitation of liability as to the losses occasioned by the tortious acts of the master, and that the libelants, being the only creditors shown, are entitled for 'those losses to recover the whole amount of the value of the vessel and
DAMAGES caused BY BREA OH O.F CHARTER.
78 tons palm kernels, wholly lost, - - $3,553 87
Forwarding 226 tons freight,' - - 2,328 18
“ 110 “ at same rate, - - - 1,133 18
Expense bagging and shipping 226 tons, - 710 17
“ shipping and storing 110 “ - - 140 94
$7,866 34
Less charter freight saved. 3,398 00 $4,468 34
LIMITED LIABILITY ON LOSS BY TORT OK MASTER.
Value of the vessel, - - - - $ 335 09
Pending freight, .... 731 50
$1,066 59
Less demurrage due from charterers, - - 731 50 335 09
$4,803 43
As to costs, those on libel and cross-libel will be set off, and decree for the excess in favor of the party whose costs are greatest.
The only matter remaining for determination is whether the respondents are liable in solido, or only in proportion to their respective ownership in the vessel. The act of June 2G, 1884, (chapter 121, § 18, 23 St. p. 57,) fixes the rule “that the indivddual liability of a ship-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole;” and the question is presented whether this limitation, like that which is measured by the value of the vessel and pending freight, is to be confined to the liability of owners “on account of the vessel;” that is, “the liability imposed on them by law in consequence of their ownership of the vessel,” and incurred “without the owners’ express intervention.” Though the relation of part owners to each other is that of co-tenants, yet as to third parties they-have made in law but one owner. It has been considered that in the employment of the common property they are quasi partners; because of their joint interest in the vessel, they have been held in solido on liabilities to strangers, whether arising from contract or tort-. This statute was evidently designed to modify in some way the liability previously imposed on them by law, and to relieve ship-owners of some portion of that liability. The intention to accomplish this, in part, by breaking up'the solidarity of responsibility, is plain. Relief in this way is not in terms made to depend on the condition that the owners are in position to take advantage of the other portion of the statute, and be discharged of all liability beyond the value of their shares of the vessel. The burden of a part owner, who can free himself from debt or obligation by the surrender of his interest in the vessel, did not more urgently
The costs must be differently dealt with. They cannot be treated as a liability or debt of the owners, as owners, but are expenses of litigation for which the owners contesting are held in solido. Let it be so decreed.
IN THE CUOSS-LTREL.
A decree in favor of libelants for demurrage in the sum of $731.50, and costs.
