The Stanley Dollar

160 F. 911 | 9th Cir. | 1908

ROSS, Circuit Judge.

The case shows that a Japanese named Ki-kutake, in the early part of June, 1905, caused to be inserted in certain Japanese newspapers published at Honolulu and circulated in the Islands, an advertisement for laborers to go to Seattle and Tacoma, state of Washington, by a certain steamship'called the “Stanley Dollar,” to sail June 19th of that year direct to Seattle, stating the wages such laborers would receive, and the fare each was to pay, and further stating that if any such laborer should not be able to pay the full fare, he (Kikutake) would lend him $20 of the amount. In response to that advertisement, each of the 36 appellees, among a large number of other Japanese, contracted with Kikutake for transportation on board the Stanley Dollar from Honolulu to Seattle, at the time paying to Kiku-take $20 in money on account of his passage, and executing to Kiku-take his promissory note for the balance of the passage money, and receiving from Kikutake a receipt therefor. At this time the ship mentioned was in the waters of the Orient. Prior to her arrival at Honolulu, Mr. Robert Dollar arrived at that place as the representative of the steamship company owning the vessel, and for the purpose, in' part, of issuing tickets to the laborers secured by Kikutake by means and in pursuance of the advertisements. After his arrival in Honolulu Dollar and Kikutake had several conferences upon the subject, resulting in the issuance by Dollar to each of the libelants of a ticket printed entirely in English, entitling him to transportation from Honolulu to Victoria, B. C. — Dollar thereupon collecting from Kikutake $14 for each of such tickets. The steamship in question did not reach Honolulu from Yokohama until June 27, 1905, and then it was discovered that she was without a license or certificate to carry passengers. Moreover, she was of Canadian register, and was consequently not entitled to carry passengers from Honolulu to Seattle or any other American port. A survey was made at the instance of the collector of customs at Honolulu, resulting in the making of certain repairs and additions to the equipment of the ship, deemed essential to the granting of a license to her to carry passengers. The day before she was finally ready to sail, which was about midnight of July 15, 1905, the libelants went on board with their baggage, and then for the first time discovered that they were not to be taken by the ship to Seattle, in accordance with their agreement with Kikutake, but to Victoria, in accordance with the tickets which had been issued to them, which tickets they could not read, not understanding any English, and which had not been theretofore explained to them. The appellees thereupon left the ship and filed the libels which were in the court below consolidated, and which formed the basis of the appellees’ recovery there.

Erom the record it seems that a corporation called the “Construction & Maintenance Company” had entered into an agreement with another corporation called the “Commercial Dock Company,” doing business at Tacoma, for the transportation by the latter of 600 Japanese in the steerage of the steamship Stanley Dollar, from Honolulu to Victoria, for $26.50 each ($28 to Seattle), to leave Honolulu on or about June 15, 1905, and to arrive at Victoria on or about June 30th, and that Mr. Dollar, before going to Honolulu, had been directed by the Stanley Dollar Steamship Company, and authorized by the Commercial Dock Company, to collect from Kikutake, who seems to have been originally acting for the dock company, one-half of the total amount which the dock company was to receive from the Construction & Maintenance Company per passenger, to be applied on account of the money due to the steamship company under its agreement with it. The balance of the money due to the steamship company from the Commercial Dock Company, and which was to be determined by the number of passengers carried by the ship, was payable before or at the time the vessel should sail from Honolulu. It is not pretended that the Japanese laborers in question had any notice of the agreement between these corporations, and even if they had, we think it very clear from the record that their agreement was a common venture, each to share in the profits to be derived therefrom, and that in no true sense was it a charter party. It' was. in effect, a common venture for the transportation of the laborers from Honolulu, to which the owner of the steamship was a party along with the other corporations mentioned ; and we think from the evidence in the case that the court below was quite right in holding that Kikutake, in his dealings with the appéllees, was all the time representing the owner of the ship, as well as the other parties interested in the enterprise. United States v. Shea, 152 U. S. 178, 186, 14 Sup. Ct. 519, 38 L. Ed. 403.

It is equally clear, we think, that the temporary acceptance of the tickets by the appellees, not at the time understood by or explained to them, and which were repudiated and transportation thereunder declined as soon as their contents were discovered, did not create a new contract between the appellees and the ship, or annul or in any way change that made by them with Kikutake, which was the contract sued on, strictly maritime in character, and therefore clearly within the jurisdiction of the court below, and which contract was violated by the delivery, under the circumstances stated, by Dollar to the appellees of the tickets providing only for their transportation to Victoria, and by the inability of the vessel to transport them to Seattle.

We are of the opinion, however, that the court below erred in allowing the appellees damages for loss of time after the breach of the contract and while awaiting the trial of the case, and also in allowing a docket fee in each of the libels. Where the libels are consolidated, as in the present instance, but one docket fee can be allowed. The Mount Eden (D. C.) 87 Fed. 483.

The cause is remanded to the court' below with directions to modify the decree as above indicated, and, as so modified, it will stand affirmed.