231 F. 353 | S.D.N.Y. | 1916
(after stating the facts as above).
). It is not important for this case to decide which doctrine is correct, for there is no question here of the American Smelting & Refining Company’s implied undertaking to pay the freight. The real question
In White & Co., v. Furness, Withey & Co., [1895] A. C. 40, the House of Lords decided, however, that the liability in such a case depends upon the existence of the owners’. That was a case where; under the statute, the consignee had deposited money to pay the lien in the hands of the warehouseman, who acted as stakeholder. A question afterwards arose as to the amount of the freight, and the owner sued the consignee, disregarding the deposit of the lien. The House of Lords held, reversing the Court of Appeal, that, where the consignee under such a bill of lading accepts the goods, the whole transaction is evidence of an undertaking, but that it depends upon the existence of the lien, and since, under the statute, the lien ceased with the deposit, there could be no implied liability. Although this is not binding upon me, it is of the highest authority, especially in matters concerning shipping, and I have been referred to no case which holds to the contrary.
The main importance of importing such an agreement rests in the fact that it enables ships to discharge their cargo without the embarrassment involved in protecting the lien, provided the owners are satisfied with the consignee’s solvency. The consideration for the agreement is the release of the lien, and there seems no reason in justice to suppose that the consignee means to agree to pay more than so much as is necessary to release his goods. By paying down the lien at once he could compel the owner to deliver, and could, indeed, sue him for trover if he does not. Foster v. Colby, supra; Thompson v. Small, supra. Why, then, should it be supposed that he intended to pay more than was necessary to release his goods ? It seems to me clear that to impose larger liability upon him is not reasonable. I think, therefore, that the liability of the American Smelting & Refining Company ex
I see no basis for the construction of any such obligation. In the case of the consignee, as I have already stated, the contract arises from his acceptance of the bill of lading, containing, as it does, an agreement that he shall pay freight, as per the charter party. But the shipper in this case had received no bill of lading and made no such agreement, unless it is to be imported from the mere fact of placing his goods on board the ship. There is good reason for importing such an agreement where he deals only with the ship, and not with the charterer; but in this case he dealt with the charterer, under a, specific agreement which limited his obligation by its- own terms. I see no reason in such a case to imply any agreement to pay any part of the hire reserved in the charter. Had the shipper actually received the bill of lading, an entirely different situation would have arisen.
The remaining question is whether the American Smelting & Refining Company can throw the loss upon the shipper, A. M. Wood & Co,. There seems to be little doubt that in fact Á. M. Wood & Co. must, in the final event, bear the loss, for the reason that under the contract between itself and the American Smelting & Refining Company it agreed to deliver the goods f. o. b. Perth Amboy. There is, however, a technical difficulty involved, due to the fact that the American Smelting & Refining Company has not filed any petition against A. M. Wood & Co. for this leave. In order to grant such relief there must be some such petition and demand, and A. M. Wood & Co. must have an opportunity to be heard on that question.
As a result, therefore, the libelants may take a decree against the American-Smelting & Refining Company for the sum above stated, and the American Smelting & Refining Company may file a petition against A. M. Wood & Co., which A; M. Wood & Co. will have leave to answer, if so advised. Upon that petition and answer the case will come on again upon the existing proofs and any others which the parties may present for disposition of that petition. It may be, however, that A. M. Wood & Co. will agree that it has no defense against the American Smelting & Refining Company, and will consent that a decree can go against them, in which case the decree will read against
The libelant may have one bill of costs against both respondents. The payment made by McGarvey to the libelants out of the money which A. M. Wood & Co. paid him may be marshaled against so much of the whole, charter hire as was earned on the return trip. It was a payment made by McGarvey without attribution, and gave the owners the right to apply it as they chose.