THE FAVORITE. t PlllTERS,
Master, etc., v. HELLER and others.
(Diatrict Oourt, E. D. Penm!Jltoania. March 26, 1886.)
DE:utmRAGE-DELAY IN UNLOADING.
Damages can be recovered for delay in unloading upon vrsscls, where the cargo could have been discharged more quickly upon railroad cars.
In Admiralty. Pugh it Flanders, for libelant. Furth ff Singer, for respondents. BUTLER, J. The libelant must be allowed two days. The detention was unnecessary. The unloading might have been completed without interruption, if the respondent had been willing to receive it on cars, which were at hand. He desired, however, to have a part of it on vessels, and delayed the work on this account. Having sold the cargo, he desired to deliver it to the several purchasers immediately from the ship. Fully two days' delay was caused in waiting for vessels, and in changing the unloading tackle back and forth from vessels to cars. For this delay the libelwt must be compensated. A fair measure of computation is found in the charter-party. I do not find anything to sustain the allegation that the crew were inefficient, and the unloading delayed on this account. A decree will be entered for libelant.
(District Oowrt, E. D. New York. July 24, 1885.)
BALE-STOPPAGE IN TRANSITU-AssERTION OF VENDEE'S INSOLVENcy-NoN-DBLIVERY OF CARGo-BILL OF LADING-VENDEE'S RIGHT OF ACTION.
A cargo of clay was shipped by H. on board the schooner E. H. Pray, under a bill of lading providing for its delivery to P. Before the delivery of the clay H. appeared, and, asserting the insolvency of the libelant, and the non-payment of the price, ordered the master not to deliver the clay to P., which direction the master obeyed. P. thereupon brought suit on the bill of lading against the vessel to recover damages for non-delivery of cargo. lIeld. that the assertion of the fact of insolvency by the vendor, made in good faith and believed by the master, coupled with the fact that the goods had not been paid for or the price secured, aud the other fact that the stoppage was during the continuance of the tranaitus, justified the master in delivering the cargC) to the vendor, and gave the vendee no right of action against the vessel.a
by C. B. Taylor, Esq., of the Philadelphia bar. Reported by R. D. & WyIlys Benedict, Esqs., of the New York bar. s note at end of case.
THE E. H. PRAY.
In Admiralty. , JaB. K. Hill, Wing tt Shoudy, for libelant, Samuel L. Pewtress. Benedict, Taft et Benedict, for claimant.
BENEDICT, J. One Hayes, upon the order of the libelant, shipped on the schooner Eo H. Pray a cargo of clay, for which the master of the schooner issued to Hayes a bill of lading in the ordinary form, providing for the transportation of the clay from Amboy to New Haven, and its delivery there to the libelant on the payment of freight. One copy of this bill of lading, together with an invoice of the clay, Hayes furnished to the libelant, who received the same. Upon the arrival of the vessel at New Haven, and before the delivery of the clay, Hayes appeared, and asserting the insolvency of the libelant, and the non.payment of the price of the clay, required the master of the vessel not to deliver the clay to the libelant, but to take it to New York. The master of the vessel obeyed the directions of Hayes, refused to deliver the clay to the libelant, and took it to New York. Whereupon the libelant sues the schooner upon the bill of lading to recover damages for the non-delivery of the cargo to him. Upon these facts the question is not whether Hayes, the vendor, as between himself and the vendee, could lawfully stop the clay in transi.tu; but whether, the clay having been stopped in trail situ by Hayes, the libelant can recover on the bill of lading for non.delivery of the clay to him. Here the direction to deliver the clay to the li. belant contained in the hill of lading was countermanded by the shipper, and the goods stopped by him, before delivery to the vendee or negotiation of the bill of lading. At this time the price of the clay had not in fact been paid, the transitus had not in fact been ended, and the insolvency of the vendee was asserted by. the vendor as the reason of exercising the right of stoppage in transitu, and believed by the master. Under such circumstances I do not think the risk of de. termining the question of the vendee's solvency can be cast upon the master of the ship. As it seems to me, the assertion of the fact of insolvency by the vendor, made in good faith and believed by the master of the ship, coupled with the facts that the goods had not been paid for nor the price secured, and the other fact that the stoppage was made during the continuance of the justified the master in delivering the cargo to Hayes, the shipper and vendor, iIi place of the libelant, and gave the libelant no right of action against the ship. In the case of The Tigress, Brown. & L. 45, it is said: .. The vendor exercises his right of stoppage in transitu at his own peril;
and it is incumbent upon the master to KiYe effect to that right so soon as he is satisfied that it is the vendor who claims the goods. unless he (the Iuaster) is aware of a legal defeasance of the vendor's claim."
Here Hayes was the vendor of the goods; he had not been paid by the libelant; there was no legal defeasance of the vendor's claim. and the vendor demanded the goods upon the ground of the insolv·
enoy of the vendee. These oiroumstanoes justified the master in refusing to deliver the goods to the libelant, and oonstitute a good Jefense to suoh an aotion as this. The libel is dismissed, and with costs.
NOTE. The of stoppage in transitu exists until the goods are delivered to the buyer, or possessibn, actual or constructive, is taken by him. Hall v. Dimond, (N. H.) 3 AtI. Rep. 423. The seizure of personal property, consigned to purchasers, by virtue of process againsi their goods, does not destroy the vendor's right of stoppage in transitu. Sherman v. Rugee, (Wis.) 13 N. W. Rep. 241. The vendor's right of stoppage in transitu is not defeated by the arrival of the goods at the place of destination, but is only terminated by the goods passing into the actual or constmctive possession of the vendee. Greve v. Dunham, (Iowa,) 14 N. W. Rep. 130. The right of stoppage in transitu may be asserted by the vendor of goods at any time before their delivery to the vendee by the carri'"er. United States Wind Engine & Pump Co. v. Oliver, (Neb.) 21 N. W. Rep. 463. . Where a wholesale merchant has sold goods to a retail dealer on six months' time, such merchant cannot claim the right to stop said goods in transit without showing that the purchaser is insolvent, aud that the goods have not been delivered to him. Walsh v. Blakely, (Mont.) 9 Pac. Rep. 809. When goods are sold on the condition that title shall not pass until they are paid for, the vendor retains the right to stoppage in transitu, as against the vendee, or an mnocent third person who purchases of the vendee before the arrival of the bill oflading or the goods. Pattison v. Culton, 33 Ind. 240. A merchant may exercise the right of stoppage in transitu while goods remain in the hands of the carrier. Calahan v. Babcock, 21 Ohio St. 281. Where a merchant sold goods which were levied on and seized under an execution against the purchaser while they were in the hands of the carrier, and the freight charges paid, it was held that the vendor's right of stoppage in transitu was not terminated by the levy and seizure. Rucker v. Donovan, 13 Kan. 251. The seller of goods may stop them in transit on account of the purchaser's insol veney existing before, but not known to the seller until after, the sale. Loeb v. Peters, 63 Ala. 243. It is said that the right of stoppage in transitu is lost if the purchaser has sold the goods, and indorsed the bill of lading to a subpurchaser for value in good faith. St. Paul Roller-Mill Co. v. Great Western Despatch Co., ante, 434; Loeb v. Peters, 63 Ala. 243. See, also, Newhall v. Central Pac. R. Co. 61 Cal. 346.
(District (Jourt, E. D. NeJU) York.
December 9, 18811.}
CARRIER-OF GOODS BY SHIP-DAMAGE TO CARGo-THEFT OF JEWELRy-BILL 01' LADING-EXCEPTIONS-CONCEALMENT OF VALUE-LIABILITY.
Libelant shipped on board the steam-ship Bermuda a trunk containing jewelry. under a bill of lading, in which the trunk was described as "merchandise," which contained the clause "weight and contents unknown," and a provision that the carrier should not be accountable for jewelry contained in any package shipped under a bill of lading unless the value was therein expressed, and extra freight paid. Libelant did not inform the carrier that the trunk contained jewelry. The trunk was opened during the voyage by some person unknown, and part of the jewelry abstracted. Held, on suit brought again.' the steam-ship for the loss, that libelant could not recover.
JReported by R. D. & Wyllys Benedict, Esqs., olthe New York bar.
Ullo, Ruebsamen ft Hubbe, for libelant. Butler, Stillman ft Hubbard, for claimant.
BENEDICT, J. The facts of this case are as follows: The libelant, Isaac H. Pereira, shipped on board the steam-ship Bermuda, to be transported therein from New York to Trinidad, a small-sized trunk. The trunk was shipped as merchandise under a bill of lading taken, in which the trunk was described as "one trunk merchandise," with. out any statement as to th.e value of the contents of the trunk; and which also contained a provision that the carrier wasllot to be accountable for jewelry contained in any package or parcel shipped under a bill of lading unless the value thereof be therein expressed, and such extra freight as might be agreed on paid. The words "weight and contents unknown" were inserted in the bill of lading before signing. The trunk, when taken on board, was placed in a regular freight compartment of the vessel, with other merchandise destined for Trinidad. In the course of the voyage the steamer stopped at various points of the Windward islands, from St. Kitts down to Trinidad, and on reaching the latter port the trunk was found to have been opened, and the fact was then first disclosed that the trunk contained jewelry. For a part of the jewelry missing from the trunk this action is brought. How the trunk came to be open does not appear, llor is it shown that the breaking of the trunk was the result of the manner or the place of stowage. Upon these facts no recovery can be had. The case is different from the case of Lebeau v. General S. Nov. Ga., L. R. 8 C. P. 88, cited by the libelant, because of the provision in the bill of lading respecting jewelry. By this bill of lading the contract was to safely cany and deliver the trunk with its contents for a certain freight, provided the contents were not jewelry. But as to any part of the contents consisting of jewelry there was no contract to carry and deliver the same, owing to the omission to state the value of the jewelry, and arrange for its freight as jewelry. Such is the legal effect of- a clause in the bill of lading like the one under consideration . .What responsibility would attach to the vessel if it had appeared that the opening of the trunk and the purloining of its contents had been the result of any neglect on the part of the ship to bestow upon the trunk the care required for its safety as a trunk containing ordinary merchandise need not be considered. The case contains no testimony from which to infer that the loss of the jewelry arose from the neglect of any precaution required to be taken in respect to 8 trunk of ordinary merchandise. Libel dismissed.
E . .D. New York. June 4.1885.)
SALVAGE-FmE-CARE OF PROPERTY-CHARGES-MARSHAL'S COSTS.
Where three tugs had been engaged in putting out a fire on a bark at a pier in New York harbor. and the value of the property saved was reduced by the condition in which vessel and cargo were left after the fire was extinguished to $5,477.57, the sum of $2,100 was awarded as salvage to the tugs,tl? the tug first at the fire, and $800 anq $300 to the other two, respectIvely, wIth costs to each. Marshal's costs were not first deducted. but the sum paid by the ship agent in caring for and delivering the cargo was first deducted.
In Admiralty. On the nineteenth of July, 1883, a fire broke out on a pier at Harbeck's stores, Brooklyn, at which the bark Perseverance was lying loaded with a cargo of jute. The fire spread rapidly from the pier to several vessels lying near, among them the Perseverance, and one of them, the Lawrence Delap, was totally destroyed. The tugs Jack Jewett, Charm, and R. W. Burke came to the assistance of the Perseverance, and towed her out in the river, and allowed her to drift towards Governor's island, in the neighborhood of which she grounded, the tugs continuing to pump streams of water on her. She was finally filled with water and the flames extinguished. The value of the vessel and cargo saved was some $40,000, but this was greatlyreduced by expenses for storage and watching. The three tugs brought an action against the property saved for salvage compensation, and offered testimony showing the relative value of their services. The Jack Jewett was the first of the three to arrive at the fire. Benedict, Taft Ii Benedict, for the tugs. Sidney Chubb, for claimants. BENEDICT, J. This is an action to recover salvage compensation for services rendered by the tug Jack Jewett, the tug Charm, and the tug R. W. Burke, in saving the bark Perseverance and her cargo from destruction by fire at her berth in the dock. There is no question but that the services rendered by the tugs saved the bark from the total destruction which actually befell one ship lying at the same pier. The value of the property saved was, however, greatly reduced by the condition in which both vessel and cargo were left when the fire had been extinguished. The money realized from the sale of the property was further reduced by the method of sale adopted, in which all the parties acquiesced, including the salvors. These circumstances reduce the compensation receivable by the salvors. The value of the property actually saved is always an element of the callJulation in a case of salvage. In this case I consider the value of
'Reported by R. D. & Wyllys Benedict. Esq., of the New York bar.
the property saved to be $5,477.57. I do not deduct the marshal's costs from tbe proceeds of sale. I do deduct $7,115.92 paid by the ship agent in caring for and delivering the cargo, and this, upon the ground that the circumstances created a charge to that amount upon the cargo in tbe bands of the salvors. To that extent, therefore, the property saved was reduced in value. The services rendered by tbe three tugs mentioned in effecting this salvage, if compensated at the rate of ordinary towage, would make the compensation rather more than $1,800. Owing to the small amount of proceeds, they can recover but little more than this, meritorious as were their services. Looking at all the circnmstances, I fix the salvage amount for the three tugs mentioned-the Jack Jewett, the Charm, and the R. W. Burke-at $2,100. This sum I apportion among these tugs as follows: To the Jack Jewett, which was first at the fire, for her owners and crew, the sum of $1,000; to the Charm, for her owners and crew, the sum of $800; to the R. W. Burke, fQ.r her owners and crew, the sum of $300; and I further direct that the costs of the salvors be first paid out of the funds in the registry. If any further apportionment be required, it will be made on the application of the parties interested.
(District (Jourt, E. D. New York.
December 7, 1885.)
There can be no recovery for services rendered to a derelict, however mer· itorious the services may be, where the derelict is abandoned by the salvors before reaching a place of safety
In Admiralty. Wilcox, Adams cE Macklin, for libelants, Herman Smith and others. J. A. Bush, for claimant. BENEDICT, J. There can be no question as to the merit of the services rendered by the libelants in their effort to save the derelict proceeded against in this action. But, meritorious as were the services in' question, I cannot reward them, for the reason that the derelict was abandoned by the hbelants before reaching a place of safety. I find it impossible, upon the evidence, to consider the subsequent bringing the derelict into port by the pilot boat to be a continuation of services begun by the libelants. On the contrary, the proof is that the libelants, owing no doubt to the necessities of their own vessel, and the hardships that had been endured, terminated their connecI
Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.
tion with the derelict, and left to others the labor and risk of bringing it to a port of safety. By sO doing they lost the right to claim compensation for what they had done. The libel )Dust therefore be dismissed, but no costs are awarded against the libelants, and the attention of the underwriters is called to the meritorious services disclosed by the evidence to have been rendered by the mate, and also to the fact that, when the master proposed to strip the derelict, the mate advised against it, with the result that great hardship was en· dured by him, accompanied with peril. in an effort to save property in which they were interested.
THE FRISIA AND THE JOHN KITCHIN 'V. JOHN
N. PARKER. l
(District Court, E.
COSTS - FOREIGN CHARGE.
n. NIJ'UJ York.
May 11, 1885.)
CUSTOMARY RATE -
In the absence of evidence to show the existence at the place of executing a commission of a customary rate of charges for commissioner's services, or for like services, proof that the sum actually paid the commissioner is a reasonable sum for like work at the place of payment is sufficient to warrant the allowance of the item as a disbursement properly made to secure the execution of the commission. See S. C. 24 Fed. Rep, 495.
In Admiralty. Jas. K. Hill, Win,q ft Shoudy, for libelants. Benedict, Taft et Benedict, for the John N. Parker. BENEDICT, J. In the absence of evidence showing the existence at the place of executing a commission to take testimony of a customary rate of charges for services rendered by the commissioner in executing the commission, or for like services, I am of the opinion that proof of the fact that the sum actually paid the commissioner is a reasonable sum to pay for like work at the place of payment will warrant the allowance of the item as a disbursement properly made to secure the execution of the commission. If the decision in the case of Sedgwick v. Gl'innell, 10 Ben. 6, was intended to apply to a case where there is no proof of the existence at the place of executing the commission of a customary rate of charges for like services, I am unable to agree with it. In this case the proof is, in my opinion, sufficient to justify the allowance of $130.25 as a proper disbursement to secure the execution of the commission.
by R. D. & Wyllys Benedict, Esqs., ofthe New York bar.