20 F.2d 924 | W.D. Wash. | 1927
(after stating the facts as above). The issue hinges upon the meaning of clause 15 and addenda C. If there is conflict, the addenda controls.
Clause 15 definitely provides for the stowing of the cargo under the master’s supervision, and employment of stevedores for “loading and discharging,” to be selected by the charterer, at current rates. The addenda changes two provisions of clause 15: (a) Definitely fixes the rate for loading at $1.70 per thousand board feet; and (b) charterers agree to load and stow the cargo. Addenda C has a further provision that charterers may work overtime by paying all expenses, and if the ship desires to work overtime, and the charterers consent, the expense of overtime shall be paid by the ship. This provision has reference only to loading by the charterers, and appears to definitely fix the status of the charterers as principal, and not as the agent in ship’s employment. If the charterer was to be agent for the ship, the provision was unnecessary, as the stevedores would be the ship’s employees, and the ship, of course, would have to pay overtime expense in all events. The provision of clause 15 and addenda C to me is plain. It does not appear ambiguous or to be susceptible to two constructions. The $1.70 per thousand board feet cannot take the place of current rates, as it has reference only to loading, and the current rate applies to loading and discharging, and, specifically, the “charterers agree to load and stow.”
The conduct of the parties is in harmony with this conclusion. A number of ships were covered by these charter parties, covering some period of time, and as in this case the charges for services were rendered to the charterers, and paid by the charterers, except in the instant ease, which were not paid. Nor was any demand made upon the owners in this ease until long after the service, and the lumber company, or charterer, was insolvent.
Of eourse it must be held as primer law that one contracting with a corporation is charged with knowledge of the legal limitations of its power (McCormick v. Market Bank, 165 U. S. 538, 17 S. Ct. 433, 41 L. Ed. 817), and that, while a corporation may do business in any place its charter allows and local laws permit (Baltimore & O. R. Co. v. Koontz, 104 U. S. 12, 26 L. Ed. 643), the corporation cannot move from the place of its creation to another sovereignty (Bank of Augusta v. Earle, 13 Pet. [38 U. S.] 519, 10 L. Ed. 274), and that, when it does go into another sovereignty and is permitted to do business, its powers under its charter provisions are controlled and limited by the laws of its domicile (Relfe v. Rundle, 103 U. S. 222, 26 L. Ed. 337). It is also fixed law that the business of stevedoring in stowing cargo is maritime engagement (Imbrovek v. Hamburg-Ameriean Steam Packet Co. [D. C.] 190 F. 229; International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 21, 71 L. Ed. -), and the court judicially knows that the lumber company is a creature of an interior province.
What relation did the act of the lumber company in employing the libelant have to the objects stated in its memorandum of association? Was the employment incidental to the main object of the corporation ?
“Traffic,” 3 Bouv. Law Diet. p. 3307, says, is “the passing of goods or commodities from one person to another for an equivalent in goods or money; and a trafficker is one who traffics or a trader, a merchant. Senior v. Ratterman, 44 Ohio St. 673, 11 N. E. 321.” Traffic may bo “either state or interstate * * * according to its origin or destination”; if shipped by the consignor from one state or country to another, “it is interstate traffic. Fort Worth & D. C. Ry. Co. v. Whitehead, 6 Tex. Civ. App. 595, 26 S. W. 172, 173.” 8 Words and Phrases, First Series, p. 7055.
“Incidental,” obviously, means depending upon or appertaining to something else as primary. “Burrill’s Law Dictionary defines ‘incident’ as ‘belonging or appertaining to; following; depending upon another thing as more worthy. * * * A thing may be necessarily or inseparably incident to another, or usually so.’ Webster defines it thus: ‘Something necessarily appertaining to or depending on another, which is termed the principal.’ Thomas v. Harmon, 46 Hun (N. Y.) 75, 77.” 4 Words and Phrases, First Series, p. 3494.
Lord Dunevin, in Trustee of Harbor of Dundee v. Nicol, [1915] H. L. A. C. 550, said: “Incidental, in my view, means incident to the main purpose of the main business.”
Delivery of lumber is incidental to sale or traffic, the main object; and delivery may bo made in any customary manner. If traffic is interstate, it must be shipped in the usual and customary way. Loading lumber on a truck, á ear, or a ship, for delivery in the usual way, is no doubt incidental to the business of trafficking in lumber; and the loading may be by the regular employees of the lumber company or by a special employee. Employing libelant to load its lumber in carrying forward its business in the lumber traffic by the lumber company, is not engaging in the business of stevedoring, even though a small per cent, (less than 4 per cent., I think the testimony
The libels must be dismissed.