. TIlE T. A. GODDARD.
York. May 5, 1882.}
ClURTER-PARTy-LIABILITY OF OwimR--:DAMAGE
to CARGO. The Owners of a chartered 'Vessel, retaining control of her navigation, are liable for injuries to a part oUhe cargo oCl,1asioned by unaccustomed and dangeraboard. ous goods subsequently
2. SAME-GENERAL SHIP-CARGO OF-LIABILITY FOR TAKING DANGEROUS GOODS. A general ship may carry such goods as are usually carried if due care is exercised in properly separating and stowing articles which might naturally injure each other; but the ship will be held to take at her peril goods known to be dangerous to merchandise previously shipped, or not usually carried in the same cargo. 3. SAME-BILL OF LADING-RECITALS IN, BINDING AS TO ExTERNAL CONDITION. The scent of camphor in teas so strong as to be readily perceived in handling ,the packages 'is an 6:»t6rnaZ mark of their condition; and the in the bill of laqing that such teas were" reeeived in good order," istherefore prima facie evidence that they were not so scented when shipped aboard. 4. CARRIER OR FORWARDER-As BA.ILEE. A carrier or forwarder of goods as bailee is not the, general agent of the owner; his is, ;0,0 indicia ,ownership or of any general authority .over the goods Elxcept sncp as is strictly incident to his, duties as carrier, and third persons dealing with him do so at th'eir peril. After delivery, pursuant to contract, to' another carrier who has notiee ,thereof. hehaa no authority subsequently to diapensll any of the conditions for safe transportation, and the sllipper will not be bound thereby.
CmRTER-PARTY':'-AuTHORITYTO RELET VEBBEL.
Where a charter-party authorizes the ch.arterer II to relet the vessel in whole or ill part," the charterer to make subcontracts of affreightment :and to sign bills of lading of goods from other ports which he may procure to be forwl'rded by oth9r be upon the chartered vessel pursuant to the charter; and thesliip will be botilld thereby from the time they are received on board with knowledge of the ifaets. Such bill of ladlug isa reiettiilg of tM·s4\p ,in part.
RIGHTS. . . CIU.RGEMJL]ll.WITH KNOwr,EDGEOJ' SIIIPI'IilBS' .. . . .
Where R. & Co. chartered the bark T. A. G. under such a charter-party for a voyage from Hong Kong to New York, and thereafter procured teas to be Ihipped by P. & Co. at }<'oochow on board the steamer 0" to be carried to Hong Kong, and there transhipped on board the T. A. G., and thereafter carried to Ncw York, for which a bill of lading was accordingly given at Foochow for the whole voyage, signed by H. & Co. and the master of the steamer upon terms in conformity with the charter-party, and the teas were afterwards duly transhipped on board the T. A. G. lit Hong Kong, and the master gave a bill of lading therefor to R. & Co. which recited the amount of the freight as "through rate from Foochow," and the master thereafter took eamphor aboard at the of R. & Co., being dangerous goods and unaccustomed to be taken with teas, by which the teas were damaged during the voyage to New York, held, that the master was chargeable with knowledge of the shippers' rights Rnd that the bark was liable in rein for the damage to the teas, and that. the request of R. & Co. to take the camphor aboard was no defencc._
THE .T. A. GODDABD.
SAlm-BILL OF LADllfG-IRREllW,"l.l IN FORM·. '.
The second bill of lading taken by R. & CO."tllough irregular ,in form, did not prejudice the rights of the shippers or of tl\-e libelll'nts, their representa-
8. SAME-CARRIER BY WATER-LlABIL1TYOF.
A carrier by water is liable to the owner for the safe transportation of goods received on board, independent of any bill of lading; and the owner may proceed directly against the vessel or her owners, through whom the loss or injury occurs, though the latter have a contract with an intermediate party.
The stipulation of a charter-party that the vessel should" employ the charterers' stevedore," does not affect the liability of the ship or her owners where the master has the direction and control of the stevedore and the stowage.
This libel was filed to recover the amount of damages to 959 packages of tea on board the bark .T. A. Goddard, alleged to have been injured by camphor on a voyage from Hong Kong to New York. The tea was shipped at Foochow, December 18, 1877, by Purdon & Co., on board the steamer Orestes, under a bill of lading which recited that the "teas were shipped at Foochow on board the steamer Orestes for transhipment at Hong Kong on the good vessel called the 'T. A. Goddard,' whereof Smith is master for this present voyage, now lying at Hong Kong andbouud for New York; · · · to be delivered at New York to the order of Brown: Blios. & Co. on payment of freight - · · at the rate of £1 Us.pel'ton of 40 cubic feet." This bill of lading was signed by the master of the Orestes, and also by Russell & Co., who thereby contracted for the delivery of the goods at New York. Russell & Co. had, prior to this shipment, on November 20, 1877, obtained a charter-party from the owners of the T. A. Goddard, then lying at Hong Kong, whereby: they had chartered her for a voyage from Hong Kong to New York, for the carriage of merchandise, upon the conditions and exceptions in the usual bills of lading, whereby the owners agreed to keep her well maimed and Jound,and to receive from the charterers at Hong Kong lawful merchandise not exceeding 1,000 tons of 40 cubic feet; cargo to be well stowed and dunnaged at the ship's expense, being brought along-side and taken from the ship's tackles at the charterer's risk and expense; all pilotage, port dues, and charges to be borne by the vessel;, the captain to employ the charterer's stevedore, paying him at the rate of 12 cents per ton; and the vessel not to receive <In board any merchandise unless by the ordal' of the charterers, whO' had; the .option of reletting the vessel in whole or in part; ·the ship :to sail whenever "the charterthe captain-tl:1echarterers agreeing topayJor ers should so
the hire of the vessel at the rate of £17s. 6d. per ton of 40 cubic feet measurement, on delivery of cargo according to the bills of lading, which were to be signed by the captain, as presented, at any rate of freight without prejudice to the chader-party; the captain to have absolute lien on the cargo for freight, dead freight, or demurrage. The evidence showed that Hong Kong is seven days distant by were transhipped "direct" at steamer from Foochow; ,that the Hong Kong upon the T. A. Goddard, for which another bill of lading was given 'on December 28, 1877, by the master of the latter, reciting that the goods were "shIpped iri good order and well conditionod by Russell & Co. on board the T. A. Goddard, lying at Hong Kong, and bound for New York, deliverable there to the, order of A. A. Low & Bros., or their assigns, on payment of freight at the rate of 4J1 15s. per ton of 40 feet." On this bill qf lading were stated. in the gin the same marks and numbers as' in the previous bill, and the measurement was extended, showing "£117 Os. 74., through ratll from , Foochow." The bark sailed from Hong Kong on January 3, 1878, and arrived at New York in April, when the teas, on unloading, were found. to be impregnated with the' odor of camphor. They were stowed in the after-part of the bark,. between-decks, beneath the poop, which was built upon the upper deck, in which a quantity of camphor was stowed. The claimants contended .that it was customary and lawful for a general ship to carry camphor in the poop, although teas were aboard ship, and that all diligence was used in tightly caulking the hatch from the poop below, and all other air openings, so as to prevent the possibility of any fumes from the camphor reaching and injuring the teas. They also gave evidence to show that Russell & Co. had requested the master to take the camphor aboard after the teas had been laden, and claimed that the injury to the teas could not have occurred on board the bark, and that if it did the vessel was not liable. Benedict, Taft & Be.ttedict, for libellants. Owen et Gra.1J, for claimants. BROWN, D. J. From all the evidence in the case I am satisfied that the injury to the t.eas 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 T. A. GODDARD.
a quantity of camphor aboard in the poop immediately over where the teas were stowed. The teas were unloaded on the day of the arrival of the bark at New York, or on the day following, and were then found to be so scented with' camphor that the odor was perceptible as they were taken upon the truck along the street. Had this strong scent not been caused on board the bark, it must have been less perceptible on arrival here than when shipped at Hong Kong. At New York this odor was such as to constitute a manifest external condition; and if it existed when shipped at Hong Kong, it must have been as noticeable there as here, and in fact more so; and teas so scented were not "in good order and condition," witliillthe terms of'the bill of lading signed at Hong Kong by the master of the bark. These recitals in the bill of lading are prima facie evidence against the vessel as to all matters affecting the external condition of the cargo, (The BhipMartha Olcott, 140'; Clark v. Barnwell, 12 How. 272, 283; Bradstreet v. Heran, 2 Blatchf. 116; The Bark albers, 3 Ben. 148;) and upon the bill 'of lading, therefore, as well as upon the proved absence of any other'previous cause, the injury must be held to have occurred during the voyage from Hong Kong. See The Lizzie W. Virden, 12 Rep. 552; S. C. 11 FED. REP. 903. 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 insufficient. 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 the present case; that he 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 reauested 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. Olark v. Barnwell, 12 How. 272; Baxter v. Leland, i 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; Dor does any reason appear in this case why the teas should not have been placed in a v.12,no.2-12
part of the ship more remote 'from the camphor. The vessel therefore be held liable, as well for negligence in receiving camphor aboard as for improper stowage, unless the libellan.ts are precluded from recovery because bound, as is claimed, by the acts of Russell & Co., and by their consent to the l'eceipt of the camphor on board. 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 oustody, 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. 800; The Rebeeca. 1 Ware, ,188; The Phebe, ld. 265; The v. Paragon, ld. 322; Gracie v. Palmer, 8 Wheat. 605, 633; 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; Macla<l. Shipp. 115, 390. It is contended on. the part. of the olaimants, however, tha.tthe libellants are bound by the acts of Russell & Co., even subsequelJ,t to the shipment of the teas on bOillrd the T. A. Goddard, and that they are precluded from any recovery in this. case because Russell & q(). requested the master j)f theT. A. Goddard to take the camp};lOr ,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 masteJ1 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 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 otthe camphor as part of the cargo. vessel in rem for want of due diligence care The and custody of goods received on board for is whethe.r the owners of the ship remainjn possession a,s'carriers$'o.1' whether the terms of the charter-party are such as to conl?titute' a
TRET. A. GODDARD.
of the vessel for the voyage, so -as 'to render the charterers the owners pro hac vice, and alone personally responsible. for the transpor. tation. If the charter-party had in this case, therefore, transferred the entire possession of the ship to Russell & Co., and the damage' from camphor had arisen through their own sole act, the ship must have been held answerable to the libellants, (Schooner Freeman v. Buckingham, 18 How. 182, 189; The Phebe, 1 Ware, 263, 271; Richardson v. Winsor, 3 Cliff. 406,) and the owners of the bark must have looked to Russell & Co. for their indemnity. Pierce v. Winsor, 2 Cliff. 18; Gillespy v. Thompson, 2 Jur. (N. S.) 713; Maclac. Shipp. 445, 446. There would seem to be no reason, therefore, why the ship should be any the less liable where, as'in this case, the damage arose through the concurrent acts' of the charterers·and the maater, and where, by the terms of the charter-party, the owners remained in. possession of the ship, and ,throngh their agent the master held control of her:, and had the right to reject improper or dangerous goods, even. though requested to take them by Russell & Co., but failed to do so. Brass v. Maitland, 6 El. & Bl. 470; Pierce v. Winsor, 2 Cliff. 18; Abb. Shipp. H02. 'Aside from this consideration, however, the evidence fails to show that Russell & 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. Russell & Co. had signed a bill of upon the shipment.of the teas at Foochow, and had thereby borind themselves individually for the entire transportationaccord-' ing to the terms of that bill of lading; first by the Orestes to Hong Kong, and thence by transhipment on board the T. A. Goddard for the rest of the voyage to New York. At the time of signing this bill of lading they held a which fully authol'ized them to' make such contracts for transportation upon the T. A. Goddard. Under this charter-party they were expressly authorized' "to relet the vessel in whole orin 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 to the perfomance of aU the ordinary duties of carriers by water as regards any goods which Russell & Co. might procure 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 reqdire. . Drinkwater v. The Spartan, 1 Ware, 166. Pprdon'& Co., whOm the libellants represent, to parbvitll'their
at Foochow and ship them on board the Orestes under the bill of lading there given to them and signed by Russell & Co. for the whole voyage to New York, the latter by that act relet and pledged to the libellants so much of the T. A. Goddard as was required for the carriage of their goods, with all the securities for safe carriage which the charter-party afforded. This was precisely such an act as the charterparty expressly authorized Russell & Co. to do. The bark was inter. ested in and benefited by its performance through the freight to be earned thereby, on which she would acquire a lien as security for her own compensation. The libellants, or their representatives, in receiving the bill of lading signed by Russell & Co."and in parting with their goods and shipping them on board of the Orestes on the faith thereof, had a right to rely upon :the performance of that which the bark had thus authorized Russell & Co. to pledge, viz., the transportation of the goods to New York upon the ordinary obligation of carexpress tel'ms of this charter· riers by water, such as existed under Its provisions from that moment enured to the benefit of the libellants, the goods being lawful' and accustomed merchandise, such as the bark was bound to receive. The charter-party, with its .authority to Russell &.. Co. to relet, signe.d by Russell & Co. pledging and the subsequent bill of of the transportation upon the bark in accordance with the charter-party, made together a 'Valid contract for the carriage of the teas, which neither Russell & Co. 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 Russell & Co. nor the captain of the bark had any mONl, au. thorityto dispense with the usual precautions for the safe transpolltathan they had to 'carry them on deck or to throw tron of , 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 arid the charterers combined to make aily tlrrangement with, the shippers, who had means of knowledge of thechavter, 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, (13 Rep.
'IRE T. A. GODDARD
545; Mar. Reg. May 10, 1882.) The same principle applies conversely to the owners of the goods. Russell & Co., the charterers, had made with had no authority to vary the contract which the shippers of the teas, and neither they nor the master, nor both combined, could, after the shipment of the goods on board the bark, with notice of the shippers' contract, vary the carrier's obligation, or deprive the shippers of their lien on the ship for safe and careful transportation. The libellants, having no direct agreement with the master of the T. A. Goddard, a,re 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 charterparty executed between Russell & Co. and the ship-owners prior to the shipment of the teas, in precise accordance with which the libellants' 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. oontract between the bark and Russell & Co., as it existed at the time the libellants acted upon it by shipping their goods under th'e bill of lading given by Russell & Co., and not by any subsequent contract or parol requests at variance with the terms under which the goods had already been received on board of the T. A. Goddard. The lading on board of the .bark by trttnsfer from the Orestes was, in legal effect, as. much the act of the libellants, or their repl'esentatives, as if they had been shipped by them directly, on board of the bark in the first instance; and Rmlsell & Co. bad 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 &. CQ. and cannot claim exemptionon the ground. that he dealt with Russell & Co., as the owners' of the' goods, authorized at any time after the shipment to dispense with the usual conditions of liability·. There wasnQthing 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 &.00. had not been furnished by the shippers with any indicia of
ownership, or of the right of disposal of the teas. It does not appear by the evidence in what relation Russell & Co. stood to the O:restes; but if they had any possession or Qustody of the goods at all, it was 31t most only in the character of bailees for their transportation;' cisely like that of the master of the Orestes while they were on board that vessel, viz., that of a carrier of merchandise, subject to and limited by the terms of the bill of lading which they had signed. But such possession by a carrier of goods is not even prima facie evidence of any ownership, or of any general authority over the goods, except mch as is strictly incident to And limited by his duties as carriEir; and third persons dealing with him in l'eferenoe to the goods do so at their peril. Saltm v. Everett, 20 Wend. 267, 284;' The Idaho, 93 U. S. 576, 583; McNeil v. Tenth Nat. Bank, 46 N. Y.325, 329, 330; Covill v. Hilt, 4 Den. 523; Moare v. Met. Nat. Bank, 55 N;Y. 41; Gracie v. Palmer, 8 Wheat. 639. The oaptain of the bark knew that her oarrying oapacity was by the"';erms'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 ageneral'hip for the oarriage of merohandise; and he knew, therefore, that other persons were interested in the character of the goods reoeived aboard. The bill of lading of the Orestes, from which the teas were transhipped direot, must have been easily aocessible to the master of the bark, and showed tha.t Russell & Co. were not the own· ers of them; as, in the oase of Gracie v. Palmer, supra, the terms of the oharter-party were held aooessible to the shippers. The bill of lading, signed by the master himself at Hong Kong, showed on its faoe that the teas had been brought from Fooohow 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 Fooohow," i. e., through to New York. These facts would seem suffioient of themselves to apprise the oaptain of the bark that the teas could not have been the goods of Russell & Co. They were oertainly suffioient to put him upon his guard, and upon inquiry, whioh would easily have led to knowledge of the facts; and I oannot doubt that the facts were fully knowuto 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 of Russell &. Co.; that he supposed they were· their' goods; or that, in subsequently reoeivingthe oamphor aboard; h.e; relied upon their request as exempting the ship from liability. On
the contrary, the master did not accede to, this request at once, but only after some delay, and after inquiry of other masters of ,vessels as to the danger of carrying camphor; so that' he seemsto have acted upon hiE!, own judgment, and upon his own sense of responsibility to the owners of the goods on board, whoever they might be, and not upon any supposed exemption from liability through the request of Russell & Co., or any belief that they were the owners of the teas. If the bill of lading signed by the master of the bark at Hong Kong, describing Russell & Co. 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 sqfficient 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 the name of Russell & Co. and signed by the mastf3r at ,Hong Kong, because the evidence shows there was no inteij,tion or understanding by either party looking to any diversion of the goods. The teas, on arrival at New York, were ing to the terms of the bill of lading given at Fooehow, to the order of the consignees named therein, upon the payment of the freight, to the consignees of the ship; and the second bill of lading aigqed at Hoqg Kong, would seem, therefore, to have been designed only asa memorandum of the receipt of the teas on board, given to RusSlell & Co. ,as representatives of the real owners, and also as a means of transferring to the agents of the ship at New York the whole through freight from Foochow, on account of the freight due under the charterparty. The consignees named in it never ,pretended to any right in the teas beyond the amount of this through freight, and 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
also be held liable where a shipper has dealt with the master in ignorance of the charter. Marquand v. Banner, 6 El. & Bl. 232; Sa·ndeman v. Scurr, L. R. 2Q. B. 86,97; Schuslerv. McKeller, 7 EI. & Bl. 704, 723; The St. Cloud, 1 Brow. & Lush. 4, 15. See Peek v. Larsen, L. R. 12 Eq. Cas. 378. But in this country it has been repeatedly held that the obligations of a carrier by water to use due care and diligence in the stowage and transportation of the goods received on board exist independently of any bill of lading. Brower v. The Water Witch, 1 Black, 494, Nelson, J.; Robinson v. Crittenden, 69 N. Y. 525, 581; The Casco,2 Ware, 184, 186; The D. R. Martin, 11 Blatchf. 285. And it is well settled also that a person whose goods are transported by contract with a charterer, in a chartered ves,; sel navigated by her owners, as in this case, is not limited, in case of loss or injury to his goods, to his relIledy against the charterer on the express contrBict with him, but may directly pursue the vessel or her owners who bave caused the loss. N. J. St. Nav. Co. v. Merchants' Bank, 6 How. 344, 880; Freemanv. Buckingham, 8upraiOampbell v. Perkins, 4 Seld. 430, 438; The D. R. Martin, 8upra. 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 sucb cases is held to be in the employ of the captain, and under his direction and control, as the representativeof the owners, (Richardson v. Winsor, 3 Cliff. 405-7; Sandeman v. Scut'r, 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 Miletu8, 5 Blatchf. 835; Blaikie v. Stembridge, 6 Com. B. (N. S.) 894, 915. See the last case explained by Olifford, 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.
HUNDRED TONS OF OOAL.
ELEVEN HUNDRED TONS OF COAL.
(Oircuit Court. lJ. Maine.
OHARTER-PARTY-STIPULATION FOR LoADING.
Where the charterers had refused to give lay days, and had upon the insertion of the clause" vessel to load in turn at Sydney according to the custom of the port, strikes and accidents of the mines excepted," and the charterers had written that vessels loading culm or slack coal were not to wait for vessels loading coarse coal, held that the stipulation means that the vessel . was to take its turn with other vessels loading culm
2. BAHE-DEMURRAGE-CUSTOlllARY DISPATCH.
Customary dispatch, strikes, and accidents of the mines excepted, would permit the charterer of a ship, where coal is the only article of export, and is always loaded from the mine, to load with all due diligence, working the railroad to its full capacity.
Where the evidence showed that culm piled up near the mine and exposed to the weather is believed to be dangerous, the agents of the mine would not be justified in shipping it without the captain's consent, and it was no want of diligence not to load the earlier vessels with it.
A letter written by the charterer merely expressinll: an opinion that the detention will not be great, is not to be construed as a wananty or estoppel.
Libel for Demurrage. F. P. Shepherd, the libellant, master of the barquentine John Baizley, chartered that vessel June 27,1881, to D.W. Job & Co., of Boston, to bring a cargo of culm or coal from Sydney, Cape Breton, to Portland, Maine. The negotiation with the libellant was carried on through Chase, Leavitt & Co., ship-brokers, of Portland, who wrote to Job & Co. June 17, 1881, that they had not been able to induce the owners of vessels to accept orders for Sydney, adding: "We do not suppose you can give lay days at Sydney for loading; if so, we can get vessel any doubt. They fear detention at Sydney." Job & Co. answered the next day, in a letter containing this sentence: "There would not be much detention at Sydney, as the vessels we want would load slack coal, and consequently would not have to wait for those taking coarse coal." This letter was shown . to the libellant before he made the contract. The charter-party had the following clause: "It is agreed that the lay days for loading and discharging shall be as follows: Commencing from the time the captain reports himself ready to receive or discharge cargo. Vessel to
load in turn at Sydney, according to the custom of the pm·t, strikes and accidents of the mines anddischa1'ge with dispatch at [)oltland.