The Salem's Cargo

21 F. Cas. 227 | D. Mass. | 1858

SPRAGUE, District Judge.

The acts and agreement of the claimants are a waiver of any objection which he might have¹ had to the time of bringing the libel. And if there had been no waiver, it would be in the power of the court, by giving costs or otherwise, to give to the claimant a complete indemnity for all the loss or inconvenience he can sustain by the premature commencement of the suit. And it would not have been necessary to dismiss the libel, which, as the goods have now gone beyond the reach of process, would defeat the remedy against them. It is not the practice of courts of admiralty to favor formal or technical objections, to the sacrifice of substantial justice.

The taking of the drafts by the master did not in law constitute a payment. It was not shown, and it is not to be presumed, that the master intended to receive them in payment, and they had no effect upon the lien which the ship-owner might have for the amount due him.

By the charter-party, the owner of the vessel was entitled to a lien upon all the goods of the charterers, at least, if not upon those of other parties, for the payment of all that should be due to him. This was, in legal effect, a part of the contract between the owner of the vessel and the charterers. It is clear, upon principle, and well established by authority, that the master cannot change the contract made by his employers with the charterers. He could not, therefore, while at Buenos Ayres, rightfully make any agreement by which the goods of the charterer should be shipped, and not be subject to the lien for freight under the charter-party; and such agreement, if made by him, would give no rights to a person who entered into it with the knowledge of the charter-party. Nor would the master’s attempt afterwards to carry such an agreement into effect, by giving a bill of lading pursuant thereto, strengthen the right of such person. It appears by the testimony of Brackett, who was a witness for the claimants, that they knew of the existence of the charter-party, and declared that they had been troubled on former occasions by charter-parties, and therefore entered into an agreement for the bills of lading, and received it for the purpose of depriving the ship-owner of his lien. If such an arrangement had been made with the li-bellant himself, it would have been valid, but as the master had no authority to make it it cannot bind the libellant, or give any right to the claimants. The hides and nine bales of wool purchased at Cordova, having been sold at Buenos Ayres, and the proceeds having been applied to the payment of the freight under the charter-party, they have contributed their proportion of it, and are not now liable for the balance. The amount of the ship-owner’s claim on the goods is not limited to the penal sum mentioned in the charter-party.

A decree was entered for the libellant for the full amount claimed and costs.