290 F. 361 | 2d Cir. | 1923
This libel was filed in rem, and process, with a clause of foreign attachment, was issued against the Norwegian vessel Sif¡ The claim is for dispatch money earned by the appellees, who were the charterers of the Sif. The amount of the dispatch money is not disputed. It was paid by the appellees to the French government. The Sif is a tramp steamer, and was owned by a Norwegian corporation of Bergen, Norway. The charterers shipped a cargo of flour from Newport News, Va., to Nantes, France, on a sale to the French government dated January 22, 1916. A firm of ship brokers in New York City, correspondents of a ship broker in Bergen, negotiated the charter. The New York firm collected and remitted to the owner in Norway the charter freight, and the same firm afterwards suggested the name of the agent at Nantes to whom the charterer might consign the vessel, as required in a clause of the charter party, and acted as an intermediary in passing negotiations between the charterers and this agent. The agent selected at Nantes was a ship agent and broker, his appointment was affirmed by the charterers, and on instructions from the owner payment of the dispatch money earned under the charter was made to him. The cargo was consigned to Fa Commission Internationale de Ravitaillment at London, which was an agency of the French government.
By the terms of the charter party, the voyage contemplated was madfe from Newport News “to a safe port on the Atlantic coast of France, between Bordeaux and Brest,” both inclusive, at the charterers’ option. It was provided that the charterers’ agent pay the cost of discharging the cargo and all port charges incidental to the cargo at the discharging port to which the steamer would be ordered, and provided an agent of' the custom house business free of commission. It provided that the steamer be consigned to the charterers’ agent at the ports of loading and discharging, and their broker to attend to the ship’s business free of commission. It further provided that, “if sooner dispatched, steamer to pay ¿175 for each day saved.” There were saved at the port of discharge 7 days 23 hours, resulting in dispatch money of ¿1,392.14.2. Of this ¿1,090.2.1 was due to the charter
This suit is to compel the owner to pay ¿1,090.2.1 over again, the claim being that the owner owes this to the charterer. By the tenth clause of the charter the charterers’ agent was to pay the cost of discharging cargo, pilotage, and all port charges incidental to their cargo at the discharging port, and by the twelfth clause the steamer was consigned to the charterers’ agent at ports of loading and discharging. There is evidence of a custom that, in the absence of any specific instructions from the charterers, the master or owner deals with the charterers’ agent at the discharging port in connection with all matters that might arise. The questions presented are whether the agent at Nantes, having authority to receive payment, could bind his principals,, the charterers, in paying out the moneys so received, and whether or not he had implied authority to make payments of the moneys so received. When this shipment was made in 1916, it was during the war period, when there was much activity in maritime affairs, and solvent governments were purchasing through boards, commissions, and other established agencies. The flour was sold to the French government and consigned to the orders of the charterers, with instructions to notify the French government at Nantes, France. The dispatch was claimed by the French Commission, acting under instructions from the French War Office. The Norwegian owner of the vessel had no communication with the charterers, nor did the charterers communicate with the owner directly. All the negotiations ceased when the charter was closed and the charter party freight was collected and remitted to the owner in Norway. From that point on, the master and owner dealt entirely with the agent appointed at Nantes for instructions as to all matters connected with the charter party at Nantes. The ship had been consigned to this agent at Nantes as the charterers’ agent for all the purposes of the charter party. The owner could not and did not learn what arrangement the charterers had made in connection with the sale of the'flour. The dispatch may as readily have been made payable to the consignee as to the charterers.
It appears to have been a practice at times to pay dispatch money to the consignee. This was usually determined by instructions from the charterer, and, if no instructions as to payments were given, the dispatch money was usually paid to the charterers or their agent at the discharging port. The consignee’s liability for demurrage and authority to collect dispatch money are reciprocal, and the claim for dispatch may be enforced by the consignee by a suit in rem. The Corvus (D. C.) 282 Fed. 939. Indeed, in this regard the testimony of the charterers is that the French government had no claim under the contract, because
It further appears that the charterers were advised that the consignee made claim to the dispatch moneys. It must be borne in mind that the brokerage firm, which represented the owner in making the charter at the request and on behalf of the charterers, suggested the name of the agent who was selected at Nantes. When the vessel finished discharging on June 18, 1916, this agent wired that the consignees were asking ¿100 per day dispatch money. The appellees answered that this was unreasonable, and on June 27th the French government was demanding dispatch money in a larger sum. Then the New York brokerage firm wrote the appellee:
“We must admit that we are at a loss to understand why the French Commission are requesting dispatch money, unless, of course, you have some arrangement-with them of which we are not cognizant.”
On January 27th the charterers replied that they did not understand, but were “waiting to receive full particulars prior to settlement "either way.” Undoubtedly the claim of the commission was made in good faith. Again on July 19th the New York brokerage firm suggested by letter that they deemed it advisable for the appellees to straighten out the matter as to who was entitled to dispatch money with the French War Office in London, and on July 21st the appellees replied that they had cabled their agents in Paris and hoped to have the matter settled without trouble. But during all this period no instructions were given to the agent at the discharging port as to what position he should take in the matter of the French government’s claim, nor did the New York brokerage firm communicate with this agent or the owner. However, on July 17th, the charterers’ agent at Nantes wrote instructing the owner to pay the French government in London. It was only on August 24th, after the charterer had learned the money was paid to the French government, that they proclaimed that they did not recognize the agent at Nantes or the French Commission.
These facts demonstrate, that the appellees were guilty of laches. They were chargeable with the knowledge that it was common to pay dispatch money to the consignee. They knew that the consignee, a sovereign power, was demanding dispatch money, whether rightly or wrongly, and they failed to communicate with their agent at Nantes, leaving him without information or instruction for his. guidance. They are,- by this conduct, estopped from denying implied authority of the agent to instruct that payment be made to the French government as he did.
The decree is modified accordingly.
