155 F. 242 | E.D. Pa. | 1907
This is an action in personam, '■'brought by the libelant to recover from the respondent two sums of -money that are averred to have been improperly deducted by his agent at his direction from the freight due for the carriage of a cargo in the steamship Bencliff. Originally it was sought to recover three items, but the dispute concerning one of them was settled after the suit was brought.
The facts, which are not in controversy, are as follows: In July, 1902, the libelant and the respondent entered into a charter party, whereby it was agreed, inter alia, that the Bencliff should proceed 'to the port of Bilbao and there load from the respondent’s shippers a cargo of ore, which she was to deliver as directed by him at whichever of four specified ports in the United States he might select. Perth Amboy having been chosen, the cargo was in due season delivered at that port; and it is for certain stevedores’ charges and for fees paid to the customs officials that the present suit is brought. These sums were deducted by the respondent’s orders when his agent settled for the freight with the master, and the libelant contends that the deductions were improperly made; the argument being that under the charter party the payments in question should fall upon the respondent and not upon the ship.
Unquestionably, if the agreement of the parties had embraced nothing more than an undertaking on the part of the ship to carry and
The respondent’s principal defense to this item, as it appeared upon the argument of the case, is the cesser clause of the charter:
“It is agreed that the charterer’s liability as to all matters, before and after the shipping of the said cargo, shall cease as soon as the cargo is shipped, it being agreed that the captain shall have a lien on the cargo for freight, dead freight and demurrage.”
This provision, it is argued, confined the remedy of the ship to an action in rem, and relieves the respondent from liability in the pending action. It is, I think, a sufficient reply to this defense to say that it was made too late. The answer did not set it up either originally or by amendment. The libelant’s attention was not directed to it while the testimony was being taken; and it would, I think, be inequitable to permit the respondent to bring forward at the argument a substantial defense which is not included in the issues raised by the pleadings and the testimony. Moreover, it deserves careful consideration, which may well be deferred until the question is squarely raised and thoroughly argued, whether the cesser clause applies to a situation where the charterer is also the consignee, and, having obtained delivery of. the cargo without paying the freight, afterwards makes a disputed claim growing out of the delivery itself. I express no opinion on this question, as the point has not been properly raised.
The respondent’s claim for night work must therefore be disallowed.
The second item is for the fees paid for a customhouse permit to discharge at night, and for the services of the government inspectors and weighers during the same time. These charges were also paid by the respondent and deducted from the freight. In my opinion they stand on a different footing from the stevedores’ wages and were properly deducted. They seem to me to be included in another clause of the charter party, which provides that the specified rate of freight shall be “in full of primage, consulage, port charges, trimming, pilotage, towage, etc., as customary.” The items in question are certainly “port charges,” and have nothing to do with the wages to be paid to the master stevedore and his men. The ship agreed to permit discharge by -night as well as by day, and, if the result of this permission was to subject her to additional “port charges,” she was bound to pay them because she had contracted to pay all such charges, and had made no exception whatever. If she had been delivering the cargo herself, and had been obliged to carry out the obligation to work by night as well as by day, I think her liability to pay these fees could scarcely be questioned; and I cannot see how she is relieved from the express agree
A decree may be drawn in accordance with this opinion, the total costs to be equally divided between the parties.