12 F. 174 | S.D.N.Y. | 1882
From all the evidence in the case I am satisfied that the injury to the teas from the fumes of the camphor must have arisen on board the T. A. Goddard. They are proved to have been in good condition when shipped on board the Orestes at Foochow, and that vessel had no camphor aboard. The teas were transferred “direct” to the T. A. Goodard at Hong Kong, which took
The evidence produced by the claimants to show that it was customary, or not regarded as dangerous, to bring camphor in the same vessel with teas seems to me insnffipient. On the contrary, several of the oldest merchants testified that it was not customary; that it was known to be dangerous; and some regarded it as a thing unheard of. The master testified that he had never brought camphor with tea before; that he hesitated about taking the camphor in tho present case; that ho made inquiries about it of other captains, and was told by some that it might be taken in the poop of a vessel like the T. A. Goddard, and that he thereupon took it aboard as reauosted by Russell & Co.
A general ship may carry such goods as are usually carried in the same cargo without liability, if due care is exercised in properly separating and stowing articles which might naturally injure each other. Clark v. Barnwell, 12 How. 272; Baxter v. Leland, 1 Blatchf. 526; The Sabioncello, 7 Ben. 360; Lamb v. Parkman, 1 Spr. 343. But where articles are received on board known to be dangerous to goods previously shipped, and not usually carried in the same cargo, the ship must be held to take them at her peril; nor does any reason appear in this case why tho teas should not have been placed in a
The charter-party in this case constituted a contract of affreightment only, and not a demise of the vessel to the charterers for the voyage. Marcardier v. Chesapeake Ins. Co. 8 Cranch, 49, 50; Donahoe v. Kettell, 1 Cliff. 135; Richardson v. Winsor, 3 Cliff. 395, 400; Drinkwater v. The Spartan, 1 Ware, 153, 156; Leary v. U. S. 14 Wall. 607; Reed v. U. S. 11 Wall. 600. The owners of the bark, retaining the possession and control of her, were, therefore, as carriers, responsible for her navigation, and for due care and diligence in the custody, stowage, and transportation of the goods, according to the terms of the charter-party and the usages of trade; and the vessel became liable in rem for any breach of those obligations. The Gold Hunter, Bl. & H. 300; The Rebecca, 1 Ware, 188; The Phebe, Id. 265; The Paragon, Id. 322; Gracie v. Palmer, 8 Wheat. 605, 633; Freeman v. Buckingham, 18 How. 182, 190; N. J. St. Nav. Co. v. Merchants' Bank, 6 How. 344, 381; Propeller Niagara v. Cordes, 21 How. 7, 22, 23; Lamb v. Parkman, 1 Spr. 343; Maclac. Shipp. 115, 390.
It is contended on the part of the claimants, however, that the libellants are bound by the acts of Russell & Co., even subsequent to the shipment of the teas on board the T. A. Goddard, and that they are precluded from any recovery in this case because Russell & Co. requested the master of the T. A. Goddard to take the camphor on board, and that this estops the libellants from any claim for damages resulting therefrom, as much as if they themselves had requested it. (Maclac. Shipp. 415;) that the bill of lading signed by the master of the T. A. Goddard describes Russell & Co. as the shippers of the teas at Hong Kong, and this is referred to as evidence that the bark dealt with Russell & Co. alone, and had no knowledge of any other persons being interested in the teas; and that, for the purposes of this shipment, Russell & Co., who had been entrusted with the goods at Foochow, must be deemed to be the agents of the owners in shipping them on board the T. A. Goddard, and authorized by them to permit the carriage of the camphor as part of the cargo.
The liability of a vessel in rem for want of due diligence in the care and custody of goods received on board for transportation is the same whether the owners of the ship remain in possession as carriers, or whether the terms of the charter-party are such as to constitute, a
Aside from this consideration, however, the evidence fails to show that Eussell & Co. were the general agents of the owners of the teas, or that they had any authority whatever, or any apparent authority, to dispense with the observance of any of the customary precautions for the safe carriage of the goods. Eussell & Co. had signed a bill of lading upon the shipment of the teas at Eoocliow, and had thereby bound themselves individually for the entire transportation according to the terms of that bill of lading; first by the Orestes to Hong Kong, and thence by transhipment on board the T. A. Gfoddard for the rest of the voyage to Now York. At the time of signing this bill of lading they held a charter-party which fully authorized them to make such contracts for transportation upon the T. A. Coddard. Under this charter-party they were expressly authorized “to relet the vessel in whole or in part.” That authority to relet embraced by necessary implication an authority to bind the captain and owners of the bark, subject to the terms of the charter-party, to the performance of all the ordinary duties of carriers by water as regards any goods which Russoll & Co. might procuro to be shipped on board. A bill of lading is, in one .respect, but a particular contract of affreightment for so much space in the vessel as the particular goods require. Drinkwater v. The Spartan, 1 Ware, 156. In procuring Purdon & Co., whom the libellants represent, to part with their goods
The charter-party, with its authority to Eussell & Co. to relet, and the subsequent bill of lading signed by Eussell & Co. pledging transportation upon the bark in accordance with the terms of the charter-party, made together a valid contract for the carriage of the teas, which neither Eussell & Go. nor the bark could thereafter vary,- and which, from the moment the goods were received on board of the bark with notice of the sub-contract, bound the bark, as well as her owners, to its performance. Thereafter the terms and obligations of the contract were unalterable, except with the consent of the shippers. Neither Eussell & Co. nor the captain of the bark had any mo?e authority to dispense with the usual precautions for the safe transportation of the teas, than they had to carry them on deck or to throw them overboard.
in the case of Gracie v. Palmer, 8 Wheat. 605, 639, it was held not to be within the power of the master and the charterers combined to .make any arrangement with the shippers, who had means of knowledge of the charter, whereby the ship-owners would be deprived of their lien upon the goods for freight according to the terms of the charter-party, on the ground that the master had no authority to make any such changes in the terms of the owner’s contract; and this was also approved in Freeman v. Buckingham, 18 How. 182, 192. See, also, Pollard v. Vinton, U. S. Sup. Ct. April, 1882, (13 Rep.
The libellants, having no direct agreement with the master of the T. A. G-oddard, are doubtless limited in their recovery by the lawful terms of the contract between Russell & Co. and the bark, as laid down in the case of the N. J. St. Nav. Co. v. Merchants’ Bank, 6 How. 344. But this contract is to be found in the terms of the charter-party executed between Russell & Co. and the ship-owners prior to the shipment of the teas, in precise accordance with which the libel-lants’ goods were shipped, first, on board of the Orestes, and thence by transhipment, on board of the bark, and not in any subsequent arrangements in violation of those agreements.
The rights of the libellants must be determined according to the terms of the contract between the bark and Russell & Co., as it existed at the time the libellants acted upon it by shipping their goods under the bill of lading given by Russell & Co., and not by any subsequent contract or parol requests at variance with the teums under which the goods had already been received on board of the T. A. Goddard.
The lading on board of the bark by transfer from the Orestes was, in legal effect, as much the act of the libellants, or their representatives, as if they had been shipped by them directly on board of the bark in the first instance; and Russell & Co. had no more authority, after the goods had been thus shipped, to dispense with precautions necessary to their safety than in the case of any other shipper.
The captain of the bark in this case had sufficient notice that these teas were not the goods of Russell & Co. and cannot claim exemption on the ground that he dealt with Russell & Go., as the owners of the goods, authorized at any time after the shipment to dispense with the usual conditions of liability. There was nothing in the situation, upon the transhipment of the teas from the one vessel to the other, from which the master of the bark had any right to assume that the teas were the property of Russell & Co., or that they had any authority to waive any necessary precautions to insure their safety. Russell & Co. had not been furnished by the shippers with any indicia of
The captain of the bark knew that her carrying capacity was by the terms of the charter-party at the disposal of Russell & Co.; that they were expressly authorized to “relet the vessel in whole or in part;” that she had been advertised by them to the public as a general ship for the carriage of merchandise; and he knew, therefore, that other persons were interested in the character of the goods received aboard. The bill of lading of the Orestes, from which the teas were transhipped direct, must have been easily accessible to the master of the bark, and showed that Russell & Co. were not the owners of them; as, in the case of Gracie v. Palmer, supra, the terms of the charter-party were held accessible to the shippers. The bill of lading, signed by the master himself at Hong Kong, showed on its face that ■ the teas had been brought from Foochow on freight; it recited the amount of this freight at a rate about 25 per cent, greater than the rate of the charter-party; and it expressly stated it to be “through rate from Foochow,” i. e., through to New York.
These facts would seem sufficient of themselves to apprise the captain of the bark that the teas could not have been the goods of Russell & Co. They were certainly sufficient to put him upon his guard, and upon inquiry, which would easily have led to knowledge of the facts; and I cannot doubt that the facts were fully'known to him; for, though twice examined upon separate depositions, he does not in either deposition state that the teas were ever represented to him to be the ceas of Russell & Co.; that'he supposed they were their goods; or that, in subsequently receiving the camphor aboard, he relied upon their request as exempting the ship from liability. On.
If the bill of lading signed by the master of the bark at Hong Kong, describing Russell & Go. as shippers, and naming new consignees of the teas, were to be interpreted as a contract whereby the goods were designed to be shipped by Russell & Co., as absolute owners, to independent consignees, it would import a conversion of the goods by Russell & Co., since they had no authority from the owners, nor any semblance of any authority, for such an act; and as the master of the ship had sufficient means of knowledge as to the facts, this wrongful act of Russell & Co. would furnish no defence to the ship.
There is no reason, however, to place this interpretation upon the bill of lading taken in tho name of Russell & Co. and signed by the master at Hong Kong, because the evidence shows there was no intention or understanding by either party looking to any diversion of the goods. The teas, on arrival at New York, were delivered according to the terms of the bill of lading given at Foochow, to the order of the consignees named therein, upon the payment of the freight, to the consignees of tho ship; and the second bill of lading signed at Hong Kong, would seem, therefore, to have been designed only as a memorandum of the receipt of the teas onboard, given to Russell & Co. as representatives of the real owners, and also as a means of transferring to the agents of tho ship at New York the whole through freight from Foochow, on account of the freight due under the charter-party. The consignees named in it never pretended to any right in the teas beyond the amount of this through freight, and it was, doubtless, so understood by both.
While, therefore, the second bill of lading was irregular in form, it does not appear to have been designed, as it certainly was not used, to prejudice the rights of any of the parties. Nor was it essential to the rights of either. The rights of Russell & Co. were protected by the terms of the charter-party, and those of the libellants, by the first bill of lading signed by Russell & Co., which bound the bark from the time the teas were received aboard with notice of it. In signing bills of lading in such cases, the master, according to the late English authorities, acts as agent of the charterer; although the owners will
The provision of the charter party that the captain should “employ the charterer’s stevedore, paying him at the rate of 12 cents per ton,” does not affect the liability of the ship or her owners for improper stowage, since the stevedore in such cases is held to be in the employ of the captain, and under his direction and control, as the representative of the owners, (Richardson v. Winsor, 3 Cliff. 405-7; Sandeman v. Scurr, L. R. 2 Q. B. 86, 98;) although it is otherwise where the stevedore acts under the direction of the shipper or owner of the goods. The Diadem, 4 Ben. 247; The Miletus, 5 Blatchf. 335; Blaikie v. Stembridge, 6 Com. B. (N. S.) 894, 915. See the last case explained by Clifford, J., in Richardson v. Winsor, 3 Cliff. 404. Except in the application of its special facts, Blaikie v. Stembridge must be deemed overruled by the case of Sandeman v. Scurr, supra.
No sufficient grounds, therefore, appearing to exempt the ship from liability, the libellants are entitled to judgment, and to an order of reference to compute the damages, with costs.