lUlU V. I. & V. FLORIO S. S. CO.
turned to the right and kept upon the tow-path side until so near the Venus and Leta, that any change of the latter's course was impossible, when she suddenly took a sheer and struck the Leta, lying helpless on the berme bank. If this be the correct version she was guilty of a grave fault. If, on the contrary, as the respondents assert, she was aground on the berme bank, directly in the path of the Venns and Leta, and took no measures, except the one signal, to inform them of her extraordinary situation, she was equally culpable. Where a boat is in an unusual position, where she ought not to be, where she has no right to be, she must take adequate and necessary means to inform others of the fact. Upon either theory, then, the Carroll was negligent, and the .agreement of her master, immediately after the accident, when it was thollght the injury was slight, to pay the damages incurred, is very suggestive as to what his opinion, at that time, was. It follows that there must he a decree for the libelant, with costs, and a. reference to compute the damages.
v.1. & V.
S. S. Co.
May 25, 1885.)
(Di8trict Court, D. New Jersey.
ADMmALTY PRACTICE-MISNOMER-WAIVER-ApPEARANCE AND ANSWER.
After a reapondent has appeared generally, and answered upon the merits, it is too late to move for a dismissal because Qf a misnomer in the libel and monition.
DAMAGE TO CARGO OF PRUNES.
2. CARRIERS OF GOODS BY VESSEL-BILL OF LADING-TRANSHIPMENT-DELAY-
On the twenty-third, thirtieth, and thirty-first of March, 1881, L. shipped on board reapondent's three steamers 600 casks of prunes at Trieste. to be delivered in New York, unto order, and took therefor bills of lading, in which respondent stipulated that said steamers were bound for New York, and reserved the right to tranship any part of said cargo to another steamer. Two of the steamers proceeded to Palermo, and discharged the prunes, where they remained for 55 days, when they were shipped on another of resp"ndellt's steamers, brought to New York, and delivered in a damaged condition, owing to the delay that ensued in their transhipment, and the want of proper care in their handling and storage at Palermo. Held, that respondent was not to tranship in other vepsels thflll his own, under the bill of lading, but that he WfiS obliged to use diligence and care that adequate facilities were furnished to comply with its agreement to tranship without unreasonable delay, and that be was liable for the damage cansed by his to provide for the more di· rect transportation of the prunes to New York after their arrival at Palermo.
Libel in rem. Jas. K. ina, Wing If: Shoudy, for libelants. L01'enzo Ullo, for respondents. NIXON, J. The libel in this case is filed against a foreign company, claiming damages for negligence and want of care in the tranship-
ment of 600 casks of prunes from Trieste to New York, and praying for process against the goods and chattels of the company within this district, if the respondent could not be found. The return of the marshal on the monition shows that not finding the respondents, he attached certain property, belonging to them; to-wit: the steamship Vicenzo Florio, her tackle, etc., in obedience to the clause of foreign attachment contained in the process. A general appearance was entered for the respondents by Lorenzo Ullo, Esq., a claim for the property seized put in by the 1. & V. Florio Steam-ship Company of Palermo, satisfactory security given, and an answer filed to the merits of the libel, acknowledging the reception and transhipment of the prunes in the attached steamer, but d,enying the negligence and want of care complained of. A reference was made to a commissioner to take testimony. Commissions issued to the respondents for the examination of witnesses in foreign countries, and very voluminous evidence, has been returned and filed. When the case came up for final hearing, the proctor for respondents, before the argument, moved the COllrt to vacate the attachment and dismiss the suit, as to the reo spondents, on the ground of a misnomer in the libel and monition. The motion comes too late; the general appearance to the suit by the respondents and an answer upon the merits, without objection, are always regarded as a waiver of such irregularities. Expressing no opinion respecting the action of the court, if the reo spondents had put in a special appearance for the purpose of enter· ing a motion to vacate, or had filed answer, which raised the question now suggested, I have no hesitation in holding that the respond. ents cannot be permitted to waive such defects at the beginning of the proceeciings, and afterwards urge them at the conclusion of the case. The libel alleges that on March 23. 1881, at Trieste, one Liedmann shipped on board the steamer Cariddi, owned by respondents, 200 casks of prunes, to be carried from that port to the port in New York; that on the thirtieth of the same month, he shipped on the Taormina, another steamer of the respondents, 200 other casks of prunes, to be delivered to the port in New York; that on the thirtyfirst of the same month he shipped 200 other casks, on board the last-named steamer, for the same destination; that said casks were to be delivered in New York, unto order, and that the agents of the respondents at Trieste signed bills of lading therefor, in which they stipulated that the said steamers were bound to New York, and reo served the right to tranship any part of said cargo to another steamer; that the said steamers Cariddi and Taormina proceeded from Trieste to the port of Palermo, Sicily, where they discharged said prunes, and the same remained at Palermo an unreasonable length of time, to-wit, for a period of 55 days; that they were afterwards shipped upon the steamer Vicenzo Florio, another vessel of respondents, and brought by her to New York, and delivered to the libelant in a dam·
MI:s'A V. I. & V. FLORIO S. S. 00.
aged and deteriorated condition, owing to the delay which ensued in their transportation, and the want of proper care in their handling and stowage at Palermo; that the respondents neglected to transfer said prunes from Palermo for the long period above stated, although they had a number of opportunities so to do; that after their shipment Leidmann indorsed the bills of lading in blank, and forwarded them to libelant for value; that libelant is the true and lawful owner of the merchandise therein described, and by reason of the negligence and want of care and diligence of respondents in the transportation and custody of said merchandise he has sustained damages to the amount of $6,000, which has been duly demanded, and not paid. The 1. & V. Florio Steam-ship Company of Palermo, Sicily, alleging itself to be a corporation duly organized under the laws of Italy, files its answer admitting the shipment of the prunes by Leidmann on the said steamer at Trieste, but denying that the steamers were bound for New York. The answer avers that the respondent corporation owns and manages two certain lines of steam-ships, of a different class and capacity; one of which carries merchandise along the east coast ofltaly from Trieste to ports in Sicily, and back again to Trieste; and the other plies along the west coast of Italy to Palermo, in Sicily, and thence to the port of New and back again; and that, in the regular course of management of said two lines, all merchandise shipped on the east coast of Italy, intended to be delivered in New York, is transhipped at the port of Palermo on one of respondent's steamers bound to New York, and that such course of management is a matter of general notoriety among mercbants in the ports where the steamers , pass, and was also known to Leidmanll, the shipper of the prunes; that when the prunes were put on respondent's steamers at Trieste, as alleged in the libel, the said Leidmann, with full knowledge of the usual mode of transportation, accepted bills of lading containing a stipulation that the respondents should have the liberty of transhipping the same upon any other of their steamers leaving the ports of Sicily for the port of New York; that the steam-Ships Cariddi and 'l'aormina proceeded, with the prunes on board, from Trieste to Pawhere they were discharged, and remained for a certain time, awaiting an opportunity to tranship on one of the steam-ships of respondent leaving that port for New York; that they were, in fact, transhipped on the steam-ship Vicenzo Florio, one of the steamers of the respondent on the line between the ports of Italy and New York, with due dispatch, and in the proper and customary manner, ana were carried to New York and duly delivered to the libelant; and that said transhipment was made without unreasonable delay and in the regular course of their business, and at the first opportunity which respondent had to forward the merchandise to the port of New York. The bills of lading, which are made exhibits in the case, reveal the contract between the parties at the time of the shipment. From them
I learn that 600 casks were shipped at Trieste for New York on the steamers of respondent, as follows: On March 23, 1881, 200 casks on the Cariddi; on March 30th, 200 casks on the Taormina; and on March 31st, 200 other casks on the last-named steamer. That they were all shipped in good order and condition, to be delivered in the port of New .York ; "the liberty to tranship any part of said cargo by steamer" being reserved in the said bills of lading. The undertak· ing of the l'espondent was that the merchandise thus committed to its charge for delivery in New York would be transported there with reasonable care and dispatch,-not necessarily in the steamer selected for the voyage at Trieste, but in Borne steamer belonging to and un· der the control of the company with which the contract was made. I agree with the learned advocate for the respondent that a. transhipment into steamers other than the respondent's was not in contemplation, or obligatory, under the above clause, in the bills of lading. But, nevertheless, they were obliged to use diligence and care that adequate facilities were furnished to comply with their agreement to transport without. unreasonable delay. Do the facts of the case show that the respondent performed its duty in this respect? One-third of the cargo was received by the Cariddi, at Trieste, on March 23d, and they reached Palermo on April 3d, following. The other two-thirds were shipped at Trieste, on the Ta.ormina, on March 30th and 31st. lt does not clearly appear when they arrived at Palermo, but the weight of the evidence is that it was about nine days afterwards. The only steamer of the respondent that sailed from Palermo to New York during the month of April was the Washington, which was lying at Palermo for several days, both before and after the arrival of the prunes. They were not forwarded by her· to New York, and the excuse rendered is that sbe was already loaded when the Cariddi and Taormina arrived. I think it was the duty of the company, when they accepted the prunes and receipted for the delivel"y in.New York, to ascertain whether they had at their command the means of their transportation within a reasonable time. If the:r had not, they should have declined to receive them. The Washington did not, and, it is alleged, could not, take them. Their next steamer for New York was' the Vicenzo Florio, which did not leave Palermo until May 24th. In .the mean time the prunes, taken from the Trieste steamers about the first of April, were kept, either in lighters or in a floating magazine, at the port of Palermo for nearly two months, awaiting the departure of another steamship. If any injury tesulte(l to the cargo from this long detention, the loss must be chargeable to .the respondent which caused it. lt should be observed, in this connection, that while the average time for a voyage from Trieste to New York., in a sailing vessel, is twice as grea t as is required for a steamer, the freight, or the cost of transportation, by the former is less by more than one-half than by the latter. Both methods were available in the present case, but
the steamer was selected, doubtless, on account of the promise of greater dispatch. The merchandise was delicate, and of a character to be damaged by any exposure or delay in a tropical climate. The Vicenzo Florio arrived in New York on June Uth,-about 80 days after they had been shipped at Trieste, and some weeks after they would have been regularly due if forwarded by a sailing vessel. There is no proof that the long delay was caused by any stress of weather, but it seems to have arisen from the respondent's neglect to provide for the more direct transportation of the merchandise to New York after its arrival in Palermo. The testimony of Josiah Rich and John A. Jansen is quite explicit as to the fact and the cause of the damago to the cargo. Both had had large experience in the business, and for many years had ha,ndIed the greater part of the Turkish prunes that had come into the port of New York. They agree in opinion, after a careful examination of the'600 casks, that the damaged condition of the prunes arose from the delay at Palermo in their transportation. It is a case where there should be a decree for libelant, and a reference to ascertain the damages, if the parties desire to take further evidence upon the subject.
(District Cow·t, S. D · .New York.
May 8, 1885.)
MARITIME LIEN-SHIP'S OHEDIT-CASE STATED.
The ship S., belonging to American owners, arrived with cargo at Greenock, Scotland. She was a stranger there, and the designated C. N. & Co. as her collectlllg and disbursing agents, who collected the inward freig-hts and held a large balance for the ship. It appearing that she was in need of remetaling-, C. N. & 00. ordered the necessary metal of the libelants, it being understood that the bill should be" paid by V. N. & 00; when the ship's accounts were adjusted," in cash, "under discount." Thereafter the ship remained in the vicinity for four months; but no demand for payment was ever made of the captain, and no inquiries were made of him aoout any of their dealings. The bill, audited by the captain, was rendered to V. N. & Vo. The latter, on settling their accounts with the captain, induded the bill as paid by them. After the ship had finally sailed, demands were made of C. N. & Co., but before payment th"y failed and about a year after furnishing the supplies inquiries were first made after the owners. This action was thereafter hronght to enforce an alleged lien upon the ship for the supplies, and. loy consent, tile liability of ship and owners was submitted. The judge found that the goods were not ordered or furnished on any intended credit of the sh'p. lJdd. thnt under lhe well-settled rule that no lien arises for a vessel's snpplies except case of necessity for the credit (If the ship to oMain them, as large funds of the S. in 1he hands of V. N. & 00. were shown to have existed, which was known to the libelants, or would have become known to them on reasonaLle inquiry, there was no necessity for cr,'dit, and that no lien attached.
2. SAMK-OWNER'S LIABILITy-PRHWIPAL AND AGEN'r-INQulRY FOR HESPOl>SIBLE
The libelants contended that the ship's owners were liahle in perannam for the supplies. It was shlJwn that the liLelants did not know who the owners
lReported by R. D. & Edward G. Benedict, Esq·., of the l'iew York bar.
were when the supplies were furnished; that they made no inquiry in regard to them until after the failure of O. N. & 00.; and that they evidently relied on the latter firm for payment. Held, that by the English law the credit of a foreign principal is not presumptively pledged by the dealings of an agent resident in the kingdom; that the maritime law also affords no primfl JilCie presumption of authority in mere ship-brokers llaving funds of the ship, to bind her owners for supplies ordered by them, and there was no proof of any actual authority, that as C. N. & Co. were only agents in a limited eapaeity, did not know or have correspondenee with the owners,and had in their hands sufficient funds of the ship, tlwir ordering of supplies for the ship did not bind the owners by implication, and that the circumstances negatived any such authority; that the libelants were bound to make inquiries of the master of the ship, or take the risk of the actual authority of O. N. & Co. Not having done so, they could not nuw hold the ownel'l:l responsible; and the libel dismissed.
BROWN, J. This libel in rem was filed to recover the sum of £283 ($1,380) for supplies, consisting of white metal furnished in September, 1881, to the ship Suliote at Greenock, Scotland. The only question litigated is the liability of the vessel or of her owners upon the facts of the case; the parties having desired that the whole question, as respects the liability of either, should be considered and determined without reference to the form of the action. The ship belonged to American owners. She was a stranger in Greenock, and the libelant had no knowledge of her master or owners. She arrived at that port with a cargo in August, 1881; and the mas· ter designated Clerk, Nuel & Co., of Greenock, as her collecting and disbursing agents there. They were an established firm of ship·brok. ers in that place, of good repute, and in good credit; and they were well known to the libelants. They collected the inward freights of the ship, amounting to about $17,500. The vessel being in need of remetaling, Clerk, Nuel & Co., through Mr. Nuel, since deceased, ordered the necessary white metal of the libelants. They fumished it, accordingly, prior to September 13, and the old metal was returned to them and credited on account. The libelants' witnesses say that Mr. Nuel told them that he was acting as agent of the ship and had au. thority to make inquires about prices; and that it was understood that the sale was made to the ca ptain and owners; and that they ga ve no credit to Clerk, Nuel & Co. But it was "understood that payment would be made through Clerk, Nuel & Co. in cash, under discount, Mr. Nuel never having said anything about the ship's taking credit." No dealings were had with the captain in making the contract, nor were any inquiries made of him as to the terms of Clerk, Nuel & Co.'s authority. Both Mr. Nuel and the captain are dead. Their testimony was not procured; and there is no proof of the actual author. ity of Clerk, Nuel & Co., except such as is to be inferred from the circumstances of the case. It was understood at first that the bill should be paid by Clerk, Nuel & Co., "when the ship's accounts were adjusted, in cash, under discount;" that there should be a discount
Wingate & Cullen, for libelants. Owen & GraJI, for the Suliote.
of 2i per cent., and 1 per cent. additional if payment was made in cash, which, as I understand, might be at any time not exceeding one or two months after the sailing of the ship. ThiB was the custom of the trade at Greenock. The bark did not sail until the seventeenth of November. On the twenty-first of September, about a week after the metal had been furnished and the bill, audited by the captain, had been rendered by the libelants to Clerk, Nuel & Co., the latter rendered to the captain of the ship their account of the debits and credits of the ship, in which the libelants' bill was included as paid; and a receipted voucher, signed by Clerk, Nuel & Co. for this bill as well as for other bills, was also returned to the captain. The account also showed a credit amounting to £2,000, which Clerk, Nuel & Co. had deposited with Baring Bros. & Co. to the credit of the ship on the tenth of September, the same week in which the libelants'supplies were furnished; and a final balance of £269, 8s., besides the amount needed to pay for the libelants' bill, was thereupon receipted for to the captain, and was paid by Clerk, Nuel & Co. upon various subsequent drafts by the captain to answer the ship's needs. Shortly after sailing the ship met bad weather and was compelled to put back to Lamlash, 40 miles from Greenock. Her arrival was reported in the Greenock papers; and a mutiny of her crew, which led to judicial proceedings in Greenock, was also extensively commented upon. '1'he captain finally sailed again from Lamlash on the ninth of January. During all this time the libelants had never consulted the captain in reference to the goods furnished by them, or the payment of their bill, and had never made any demand upon him. After .the seventeenth of January, at some time not stated, and which does not definitely appear, requests for payment were made by the libelants of Clerk, Nuel & Co., to whom their bill had been rendered, as already stated, about the middle of September. As above observed, it "had been at first understood that they would settle the bill when the ship's accounts were adjusted." But after the ship had sailed for good they began to prevaricate, to speak of insufficient funds; and on various pretexts they put off payment, stating that they had not sufficient money, and that the owners would remit. In November following the firm failed and dissolved, and then, or shortly before, for the first time, the libelants instituted inquiries to ascertain who and where the owners were. On learning that they were in New York, the libelants forwarded to them a demand for the payment of their bill. Payment being declined, the present libel was filed on the fifth of December, 1883. The evidence on behalf of the libelants shows that the charge upon their books was made against the "Bq. SuHote, and owners;" that it was usual at Greenock to furnish supplies on the order of ship-brokers, in the manner above stated, to be paid for, either in cash or at some time subsequent to the sailing of the vessel; but that it was "not usual in the case of a sale of goods to a foreign vessel, not known,
to permit her to depart without payment, except on the responsibility of reputable agents there;" and that in this case they did not know who or where the owners were,or anything as regards their responsibility, until their inquiries, after the failure of Clerk, Nuel & Co. Upon the above facts I must hold that neither the vessel nor her owners' are 'responsible for this bill. 1. His well settled, under both the English and American law, that no maritime lien arises for supplies except in case of necessity, or apparent necessity, for the credit of the ship to obtain them. In the case of Thomas v. Osborn, 19 How. 22, 31, CUR'rrs, J., states the law on this point as follows: .
"To constitute a case of apparent necessity, not only must the repairs and supplies be needful, but it must be apparently necessary for the master to have a credit to procure them. If the master has funds of his own which he ought to apply to purchase the supplies, which he is bound, by the contract of hiring, to furnish· himself, and if he has funds of the owners which he, ought to apply to pay for the repairs, then no caSe of actual necessity to have a credit exists; and if the lender knows these facts, or has the means by the use of due diligence to ascertain them,theil no case of apparent necessity exists to have a creclit; and the act of the master in procuring a credit does not bind the interest of the general owners in the vessel." The Lulu, 10 Wall. 192; Stephenson v.The Francis, 21 FED. HEP. 715, 720.
The proofs show clearly that there was an abundance of funds available at Greenock, in the inward freights of the Suliote, to pay for all her repairs there, with a large surplus besides. There is no reason to suppose that there was any concealment of this fact from the libelants when the supplies were ordered. There was then no possible motive for concealment; the facts were easily ascertainable; and if the libelants did not know them, as they now testify, although I think they must have known them at the time, it was clearly their own fault in making no proper inquiry. They do not say whether they made any inquiries on this subject of Clerk, Nuel & Co. even; but do say that it was not understood "that the ship was to take credit." Material-men in a foreign port are bound to make inquiries of the master as to her need of credit, before seeking to charge the ship or her owners. Had any inquiry been made of the master with regard to the payment for these supplies, it is not to be supposed that the libel· ants would not have been fully informed of the ample funds whieh the inward freights afforded to pay for them; and that they could not, therefore, lawfully charge the ship. The master, moreover, was the only person that had any authority to bind the ship at all. In dealing with Clel'l" Nuel & Co., instead of the master, the libelants mmt be held legally chargeable with such knowledge as a dealing with the master, and upon ordinary business inquiries of him, would have conveyed to them. The case is, clearly, therefore, one in which neither the master, nor anyone else at Greenock, had authority to bind the ship for supplies; because there were abundant means to pay for such supplies, and the libelants had means, by the use of ordinary dili·
gence, of ascertaining that fact. The Lulu, supra; In.surance Co. v. Baring, 20 Wall. 163; The Eledona" 2 Ben. 31, 37; The J. F. Spencer, 5 Ben. 151, 153; Thacker v. Moates, 1 Moody & R. 79; Abb. Shipp. *135. ' 2. Whether the respondents are liable in personam depends upon the law of principal and agent. For goods ordered by Clerk, Nuel & Co., the respondents cannot be held unless Clerk, Nuel & Co. had authority to charge them personally therefor; nor unless such was the intent of the transaction. In both respects I think the libelants fail to make out a satisfactory case. The libelants' contract was clearly made with Clerk, Nuel & Co.; and the latter had no more presumptive authority to pledge the personal liability of the owners than they had to bind the ship. The case is one in which the language of Dr. LUSHINGTON in the -case of The Druid, 1 W. Rob. 391, 399, is speciallyapplicable: "The liability of the ship," he says, "and the responsibility of the owners in such cases are convertible terms; the ship is not liable, if the owners are not responsible; and vice versa, no responsibility can attach upon the owners, if the ship is exempt, and not liable to be proceeded against." In the English law it is now well settled that resident agents, buying goods on account of foreign principals, in the absence of facts showing a contrary intention, pledge their own credit only; on the gl'Ound that, for the conveniences of trade, it is not to be supposed that any privity of contract with a foreign principal is intended in such transactions. In Smyth v. Anderson, 7 C. B. 33, MAULE, J., says: "It is well known, in ordinary cases, where a merchant resident abroad buys goods here through an agent, the seller contracts with the agent, and there is no contmct or pri'Dity between him and the foreirm principal. If that question had been specifically put to the jury, there can be no doubt as to what their decision would have been." In the case of Armst1'ong v. Stokes, L. R. 7 Q. B. 598, 605, BLACKBURN, J., says: "The great inconvenience that would result if there were privity of contract established between the foreign constituents of a commission merchant and the home suppliers of the goods has led to a course of business. in consequence of which it has been long settled that a foreign constituent does not give the commission merchant any authority to pledge his credit to those from whom'the commissioner buys them by his order and on his account. It is true that this was originally (and in strictness, perhaps, still is)J}- question of fact; but the inconvenience of holding that privity of contract was established between a Li verpool merchant and the grower of every bale of cotton which is forwarded to him in consequence of his order given to a commission merchant at New Orleans, or between a New York merchant and the supplier of every bale of goods purchased in consequence of an order to a London commission merchant. is so obvious and so well known that we are justified in treating it as a matter of law, and saying that, in the absence of evidence of an e.'iJpress authority to that e,tfect, the commission agent cannot pledge his f01'eign cunstituents' credit. Where the constituent is resident in England, the inconvenience is not so great, and we think that, prima facie. the li-llthority is given, unless there is enough to shuw that it was not in fact given...
In the subsequent case of Hutton v. Bulloch, L. R. 8 Q. B. 331, 334, the same law was restated, and the decision on appeal was affirmed in the exchequer chamber, (L. R. 9 Q. B. 572,) where BRETT, J., says of the foreign merchant abroad dealing in England through an English correspondent, his agent here:
"In such cases it is now settled that it is not in ordinary course for the foreign merchant to authorize the English merchant to bind him to the English contract." Story, Ag. § 268; Whart. Ag. § 7910 See, also, The St. Joze Indiano, 1 Wheat. 208.
These cases, doubtless, apply only to purchases made through established agents resident in foreign countries. They have no application to masters of vessels who purchase necessary supplies in foreign ports. But here the purchase was not by the master. The libelants had no dealings with the master, but only with established agents residing at Greenock, and in good. credit there; and in that point of view, the above authorities would seem strictly applicable. A different rule is applied as respects an undisclosed principal re-· siding within the kingdom. In that case, payment to the agent by the principal, and great delay by the vendor, will not deprive the vendor of his remedy against the principal, if the latter has not been in any way misled by the acts of the seller himself. Davison v. Donaldson, 9 Q. B. Div. 623; Irvine v. Watson 5 Q. B. Div. 102, 414. The question of election between the liability of the agent or of the prin. cipal does not here arise. See CU1·tis v. Williamson, L. R. 10 Q. B. 57; Tuthill v. Wilson, 90 N. Y. 42R. I have not been referred to any case in the federal courts of this country, nor have I found any such, in which this question is ered; though one branch of the subject was referred to in Oelricks v. Ford, 23 How. 64. In a number of cases in the state courts the creditor has been regarded as having a concurrent remedy against the agent, and against the foreign principal, when discovered, unless an exclusive credit was given to the agent; and that it is for the jury to determine that question from all the circumstances of the case. But the rule has no application to residents of different states in this country. Kirkpatrickv. Stainer, 22 Wend. 244,254; .Taintorv. Pren. dergast, 3 Hill, 72,73; Barry v. Page, 10 Gray, 398; Bray v. Kettell, 1 Allen, 80. . But, aside from this view, all the facts of the case seem to me to show, and, as I think, any jury would find, that it was not Clerk, Nuel & Co. 's intention to buy these goods on the owners' credit at the time when the goods were ordered, and that the libelants did not understand that the goods were sold upon any credit to be given to the captain or to the ship or to the owners; but that such credit as they chose to give, was given exclusively to Clerk, Nuel & Co., notwithstanding the qualifications that the libelants now seek to make in that respect. The facts and circumstances of the case, and the conduct of the libelants at the time, must be taken to outweigh their
statements, three years afterwards, as to the particular form of their dealings with Mr. Nuel, especially as he and the captain are dead, and their version of the matter cannot be obtained. Clerk, Nuel & Co. had ample funds of the ship, and there is not the slightest prob. ability that the libelants were not fully informed of that fact. They had easy means of knowledge, and the evidence clearly shows that they expected payment from these funds. The bark was a stranger in Greenock. She was not expected to return. The owners were unknown, and were not inquired after. The bill was rendered to Clerk, Nuel & Co.; nothing was said about any credit of the ship; demand of payment was made of them, and of them only; payment was promised, and evidently expected, ant of the ship's funds in their hands; and not an inquiry, even, was ever made of the master, during the four months that he was accessible in that vicinity, about the ship, her owners, or her destination. It is incredible that any credit was, under such circumstances, given to the captain, as the libelants now assert; and if the captain was not liable, the owners are not. As a question of intention at the time, and upon the actual facts of this case, I should feel constrained to find, ItS I think a jury would find, for the reasons previously stated, that Olerk, Nuel & 00. neither had, nor pretended to have, any authority to bind the vessel or her owners; that they did not intend to bind either, but themselves only; and that the libelants, in not calling for immediate payment, gave credit to Olerk, Nuel & 00. exclusively. The latter were agents of the ship for a very limited purpose. They had but a very limited authority, namely, to collect the ship's freights and to pay over the proceeds to the captain or upon his order, or else to apply them to the payment of such bills as they themselves should order for the ship on the captain's request. They were not the general agents of the owners. They did not know the owners. They had no correspondence with them, nor any previous dealings with them. The funds to pay for whatever they might order for the ship were in their own hands. Manifestly, therefore, they had no right, nor color of right, to buy anything upon the credit of the owners or of the ship. That, clearly, was not intended. To do so would be a fraud. The captain did, indeed, desire them to procure these supplies; but for the very reason that they already had the money to pay for them. That is why the did not make the contract. The captain audited the bill; but only to show that the work had been done, and that the bill might go to Clerk, Nuel & Co. for payment. The libelants never made any demand upon the captain for payment, and manifestly they never intended to make any demand of him; and the owners could not be liable for the bill unless the captain was liable. It is not credible that the captain ever authorized, or intended to authorize, Olerk, Nuel & 00. to procure supplies on his own credit, or on the credit of the ship or of her owners, when he had already put an excess of funds in Olerk, Nuel & Oo.'s hands to pay for them, and when,
under the circumstances, he himself had no lawful authority to pledge the credit of the ship or her owners. If I give a servant $10, and tell him to go and buy me a barrel of flour with it, the seller, knowing the facts, cannot bind me by charging me with the price of the flour and letting the servant keep the money. Such facts, known to the seller, would import a cash transaction only, and would conclusively negative any authority for a credit. If, instead of exacting payment, the seller chose to give a credit, the credit must be a crc,dit to the servant only. Clerk, Nuel & Co. had no more authority to pledge the credit of the owners than the servant his master's in the case supposed. The maritime law, moreover, affords no prima facie presumption of authority in ship brokers having funds to bind the ship, or her owners, for supplies ordered by them. They had no presumed author' y beyond their actual authority. The libelants were bound at their peril to ascertain their authority through proper inquiries. Had such inquiries been made, they would have learned all the facts; and I have little doubt that all the facts were sufficiently known to the agent of the libelants that transacted this business. It is only the ?1taster, or ship's husband, or managing part owner, or the general agents of the owners, as in the cases of The Patapsco, 13 Wall. 329, and The Ludgate Hill, 21 FED. REP. 431, that have any general authority implied by the maritime law to bind the ship or her owners. The libelants, in dealing with Clerk, Nuel & Co., instead of with the captain, whom they never saw and of whom they made no inquiries, were therefore bound to ascertain the authority of Clerk, Nnel & Co., if they undertook to charge the ship or her owners. There were no acts, either of the captain or of the owners, that gave Clerk, Nuel & Co. any apparent authority to bind the ship or the owners, and thus operated as an equitable estoppel. There was no difficulty in making proper inquiries of the captain. When the libelants wanted their bill audited by him, in order to get payment from Clerk, Nuel & Co., they had no difficulty in getting the captain's signature. The libelants, therefore, were bound to make proper inquiries of the master, or take the risk of the actnal authority of Clerk, Nnel & Co.; and this authority manifestly, as it seems to me, did not extend to bind 'the ship or her owners for supplies when they had in their hands the money to pay for them. I do not credit the suggestion that Clerk, Nuel & Co. intended to bind them. or that they gave any ground for such a supposition until after the bark had sailed. The libelants' testimony, carefully scrutinized, does not say that Mr. Nnel at first suggested any credit to the ship or to her owners, 01' any liability of either, but rather the contrary. In effect all that the libelants testify to is that they "understood the sale to be made to the captain and owners," and "solely on their credit." They do not say that Mr. Nuel pretended to have any authority to pledge the credit of the ship or of the captain or of her owners, or that he undertook to pledge their credit for these supplies. But what.
THE JACK JEWETT.
ever Mr. Nuel may have said, his assertions could not bind the absent owners.' The fact that the ship had sufficient funds being known, or easily ascertainable, even the captain could not have charged the owners personally for the supplies; much less could Clerk, Nnel & Co. do so. The bill presented to the captain to be audited was, indeed, headed, though in a way little likely to attract his attention, "Bq. Suliote and owners." But this was not until after all the goods had been supplied. The libelants, in furnishing the goods, were in no way influenced by the captain's signature; and, as I have said, it was but an audit by the captain indicating the delivery of the articles, so as to entitle the libelants to payment from Clerk, Nuel and Co. Two of the libelants' witnesses testify that "the purpose of obtaining the master's approval of the bill was to satisfy Clerk, Nuel & Co. that it was correct, so that they would pay the bill as rendered." After the death of the captain and of Mr. Nuel, and the inability to obtain their testimony, no conclusive weight can be fairly attached to such a circumstance, against the other strong implications of the case. Nor can much weight, under the circumstances of this case, be given to the form of the charge on the libelants' own books. That form would be naturally used as a means only of identifying the bill. Beinecke v. The Secret, 3 FED. REP. 667; Stephenson v. The Francis, 21 FED. REP.
Notwithstanding the able and elaborate brief of the libelants' counsel, I feel constrained, therefore, to dismiss the libel, but without costs.
(District Oourt, E. D. New York.
TUG AND Tow-NEGLIGENCE-OUDER TO S'fART.
April 29, 1885.)
It was not part of tlle duty of a tug, which started to tow a vessel by a hawser away from a pier, to see that the vessel was ready to move, when she received the order from the ship, " All right; go ahead I" and the tug was held not responsible for damage to a lighter made fast to the ship, which could not cast loose soon enough to avoid injury from the yard of the ship.
In Admiralty. Beebe, Wilcox et Hobbs, for libelant. Benedict, Taft et Benedict, for claimants of the tug. BENEDICT, J. The only question presented for decision on this occasion is whether the steam.tug Jack Jewett is responsible to the owners of the lighter Enterprise for the damages to the lighter Enterprise and her cargo, caused by the fact that the Jack Jewett started to tow
lReported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
the ship Bengal away from a pier when the lighter Enterprise was fast to the ship by lines which could not be cast off soon enough after the ship began to move to prevent the fore-yard of the ship catching upon the lighter's mast and rigging, whereby the lighter was tipped over, and part of her cargo lost. It is proved that the tug did not start the ship until the word, "All right; go ahead!" was given by those in command of the ship to those in charge of the tug. It is also proved that the master of the tug, when he started the ship, did not know that the lighter was alongside the ship, and that he stopped his tug as soon as informed that the lighter's mast had caught on the yards. Upon these facts, I am of the opinion that the libelant cannot recover against the tug. It was not part of the duty attaching to those in charge of the tug to see that the ship was ready to move. The negligence which caused the damage to the lighter was either negligence of those in charge of the lighter in not moving away from the ship before the ship started, or negligence on the part of those in charge of the ship in directing the tug to start the ship when the ship was not ready to start, owing to the fact that she had a lighter alongside so situated as to be in danger of injury as soon as the ship did start. The libel against the Jack Jewett is accordingly dismissed, and with costs.