NATIONAL STEAM-SHIP CO.
(Di8triot (Jourt, 8. D. New York. May 17, 1886.)
CARRIER-OF GOODS BY VESSEL-DELIVERY OF CARGO-DISPUTE AS TO QUA.l'r' TITY-CARRIER'S RIGHT TO IMMEDIATE SETTLEMENT OF CONTROVERSY.
A carrier is entitled to have settled upon the spot, in some form, any dispute concerning the number of articles delivered by him. He cannot be required to adjourn the controversy to a distant place, or a future time, fordetermination and settlement in a remote forum. The delivery is conditional only until such a receipt is either given or waived.
SAME-eAllRIER's RIGHT TO HAVE RECEIPT-ATTACHMENT OF CARGO FOR RECEIPT-TALLIES DISCORDANT-SUBSEQUENT DELIVERY TO OWNERS-COSTS.
Where a dispute arose, upon discordant tallies, between the National Steamship Company and the schooner M., concerning the number of certain pack· ages delivered by the former to the latter; and the schooner sailed away with the articles on board without any retally, or adjusting the controversy, or give ing a clean receipt for the number she had actually received; whereupon the steam-ship company attached the whole of the articles, and also the schooner: held, that the steam-ship company was entitled to a receipt: and that the schooner, in departing without settling the controversy, and without giving or tendering a clean receipt, acted at her peril; and that the libel was therefore legally filed to arrest the whole quantity. Held, further, that as, after the bonding of vessel and cargo, the cargo had been delivered to the owners, and the latter had been compensated by the schooner for all shortage, no further question remained to be adjusted but that of costs and expenses, and these the libelant is entitled to recover, as the schooner was in fault, ana the evidence does not establish any fault in the libelant.
B. ADMmALTY-JuRISDIOTION-IKPLIED CONTRACT TO GIVE RECEIPT-MARlTIM&
The claim of the libelant in this case rested wholly upon the obligation of the implied contract of the schooner to give a clean receipt for the packages taken aboard, and to have any doubt about the number settled before sailing. Held, that the obligation of the schooner to so receipt for the cargo was a maritime obligation within the jurisdiction of the admiralty.
John Ohetwood, for libelant. Wilcox, Adams a Macklin, for ctaimants.
BROWN,J. In March, 1886, the steam-Ship Qneen, of the libelant's line, arrived.in this port with 7;775 pa.ckages of iron wire, belonging to the American Screw Company of Providence. The company were in the habit of receiving similar consignments, and had arranged with the owners of the Morrell, and of other vessels, to take their goods from the dock when landed, to be transported to Providence. The wire in question was all landed upon the dock, was weighed by the custom-house weigher, and placed in six piles, on different parts of the dock. The Morrell took it all on board, and kept tally of the bundles taken. An employe of the libelants also kept tally; and the custom-house weigher kept tally of the weight, and, to a certain extent, of the bundles. The tally of the libelants' man exceeded by one the number stated in the bill of lading, making 7,776; the Morrell's tally made 108 bundles less. The captain of the Morrell refused to give a clean receipt for the full number of the steamer's
Reported by Edward G. Benedict, Esq., of the New York bar.
THE W. A. MORREI,L.
ta.lly, except with the condition in the receipt, "108 in dispute." This qualification was refused, and the Morrell thereupon sailed a.way for Providence. whereupon this libel was filed to recover back the iron wire; and the Morrell and the wire were seized by the marshal before they had passed out of this jurisdiction. The freight on the whole number had been paid in full. After seizure by the marshal the ship and cargo were released upon a stipulation for the value of the 1(18 bundles of wire in dispute. Thereafter the schooner went to Providence, and, upon the delivery there, the tally showed 34 less than 7,776. The weigher's tally in New York was equal to the esti· mated weight in the bill of lading; and the tally of weight in Provi· dence exceeded the weight stated in the bill of lading for the whole number. 1. The claimants object to the jurisdiction of this court on the ground that the nature of the libelants' demand is not maritime. But the libelants' claim, if valid, rests wholly upon the obligation of the implied contract of the schooner to give a clean receipt for the wire aliltually taken aboard, and to have any controversy as to the number adjusted before sailing for a distant port. The carrier had a special property in the wire, and was bound to deliver all that the bill of lading called for; and the schooner having taken the wire aboard, the obligation to receipt for it in disoharge of the libelants was a maritime obligation. I must therefore sustain the jurisdiction. 2. The evidence shows a well-settled custom and usage that entitles the carrier to a receipt for the articles delivered. This is laid down as the general law of carriers. Hutch. Carr. § 423. Small differences are usually passed over by a memorandum in the receipt of the number in dispute or injured. But the evidence shows that this is not applicable to large variations. Sometimes, when articles have been loaded, and the first carrier can conveniently send a man to make a tally upon discharge by the second carrier, that course is adopted. The master of the schooner desired that course to be pur. sued in this case after the seizure under process, and he offered to take one of the libelants' men to Providence for the purpose. The libelants, on the other hand, offered, before she sailed, to unload the schooner upon the stipulation that the one found to be wrong upon another tally should pay the expense of unloading and reloading. This the master refused, and started upon his voyage without any settlement of the controversy, and without previous notice to the libelants, or the delivery of any receipt. The carrier is entitled to have settled upon the spot, in some form, any dispute concerning the number of articles delivered by him. 'fhe custom that gives him a right to a receipt, recognizes his right to the protection which that voucher gives him for having performed his contract; and when a dispute arises as to the number delivered. the carrier is legally entitled to have .it settled then and there. He cannot be required to adjourn the controversy to a distant place, or a
ft/ture time. for determination and settlement in a remote forum, for the convenience of another carrying vessel. Any such practice would be attended by great embarrassments, and interfere materially with the performance of the original carrier's duties. All deliveries by the carrier must therefore be held to be incomplete and conditional, and subject to the implied obligation of the person or vessel that receives the goods to give a proper and clean receipt for all the articles actually delivered, without qualification, unless such a clean receipt be waived. It is the duty of both, in case of dispute or differences in the tallies taken, to take promptly all necessary means to settle the controversy; and the expense necessarily attending the correction of any such errors must fall upon the one that caused the error. Where both are involved in blame, the expense must be charged upon both. There can be no doubt, upon the proofs, that the tally of the schooner was kept incorrectly. As the tally at Providence was within 34 of the libelants' tally, the number put on board could not have been] 08 short. In sailing away without adjusting this controversy, and without giving or tendering any clean receipt for the whole number she had actually received, she was in the wrong, and acted at her peril. The libel was therefore legally filed to arrest the whole quantity, as the libelants could not be deprived of their right of possession of the wire without a proper clean receipt for what they had delivered; and in that view the libel must be sustained. The whole cargo delivered on board the Morrell has, however, been delivered to the true owners. A careful examination of the customhouse weigher's testimony, and of his tally of weight and numbers, satisfies me that they are in accord with, and confirm the correctness of, the tally kept by libelant's tally-man, and 'that 7,775 coils were put aboard the schooner. The custom·house weigher relied more on the weight of each 20, than on the actual count. His tally of weights shows a remarkable uniformity; the greatest weight of any 20 coils being 1,164 pounds, and the least weight 1,124 pounds,-a difference of only 40 pounds, which is less than the weight of a coil,-the aver· age of the whole being 57t pounds per coil. Most of the sets of 20 weigh from 1,136 to ],156 pounds. This shows that it very im. probable that there was any error in the number as tallied by the libelant in New York; and the delivery of a somewhat greater weight by tally at Pro,idence leads to the conclusion that the entire number was actually delivered there. I am satisfied that the whole number has reached the hands of the true owners. and that the latter have no longer any claim against the libelants; and the libelants, having also been paid their freight, have no further interest in the wire. There should be no decree, therefore, for the wire or its value; but the libelant is entitled to the costs and disbursements of the proceedings, since the schooner was in fault, and the evidence, as finally sub· mitted, does not establish any fault in the libelant. or in its proceed. ings.
(Di8trict Oourt, D. Massachusetts. May 8, 1886.)
COLLISION-STEAMER .AND SAILING VESSEL-FOGGY WEATHER-REVISED INTERNATIONAL REGULATIONS - SAILING RULES, ART. 12, CONSIDERED AND CONSTRUED.
The schooner A., while running close to the edge of a fog-bank, came into collision with the steamer P. In the immediate vicinity of the schooner, and inshore from her, the atmosphere was clear; but offshore, and over the track of the steamer, there hung a low mist or fog, the effect of which was to shut out entirely from each vessel the side lights of the other until too late to prevent 8 collision. The mast-head light of the steamer was visible from the schooner's deck for at least 20 minutes prior to the collision. Neither vessel gave the fog-signal prescribed by the sailing rules. Held, that a vessel is under obligation to observe the rule, not only when she is actually enveloped in a fog, but also when she is so near it that it is necessary that her position should be known to any vessel that may happen to be within it. As neither vessel complied with this rule, they must both be held liable for the consequences of the collision.
Cross-libels for a Collision between the steam-ship Perkiomen and the schooner, Abbie C. Stubbs. R. Stone, for the Perkiomen. W. W. Dodge, for the Abbie C. Stubbs.
NELSON, J. There is very little disagreement between the pal'ties as to the material and controUing facts in this case. They are, briefly, these: The collision happened about midnight between the fifteenth and sixteenth of July, 18i:i5, near the whistling-buoy, five miles off Monomoy beach. The Perkiomen, a large steam-collier belonging to the Reading Railroad, was on a voyage from Port Richmond to Boston, with afull cargo of 1232 tons of coal. She had passed through Pollock Rip slue, and had just got by the whistling-buoy on her starboard side, and was heading N. by E., with a speed of 7 knots an hour. The schooner Abbie C. Stubbs, of 328 tons, was on a voyage from Boston to New Bedford, with a part cargo of pyrites. She was close-hauled on the starboard tack, steering S., with the wind S. W. by W., and light, and her speed was. four knots. In the immediate vicinity of the schooner, and inshore from her, the atmosphere was clear, and Chatham, Monomoy, and Shovelful lights could be seen distinctly; but offshore to the southward, extending over the shoals and the track of the steamer, there hung a low fog or mist, which shut out from the schooner Pollock Rip light and the side lights of the steamer, and also shut out from the steamer the side lights of the schooner. But the fog did not rise so high above the water as to sh ut out from the schooner the steamer's mast-head light. That was clearly visible from the schooner's deck,
IReported by Theodore M. Etting, Esq., of the Philadelphia bar.
and was observed and watched by her master and mate, a point or two over the starboard bow, for 20 minutes before the collision. The course of the schooner was close to the edge of the fog-bank. As the steamer emerged from the fog, she then for the first time became aware of the vicinity of the schooner by seeing her green light over the port bow. Her wheel was then put hard a-port as soon as possible, and she swung off to starboard; but it was too late. The schooner, continuing her course, struck the steamer, head on, amidships, on the port side, cutting into her hull to such a length that she soon filled and sunk, her men escaping in the boats. The schooner also was so badly damaged about the stem that she was beached to save her from sinking. Neither vessel, at any time before the collision, gave the fog signal prescribed by the sailing regulations. By article. 12 of the Revised International Regulations, adopted by the act of March 3, 1885, (23 St. 438,) when under way in fog, mist, or falling snow, whether by day or night, a steamship is required to make, with her steam-whistle, or other steam sound signal, at intervals of not more than two minutes, a prolonged blast; and a sailing vessel to make with her fog-horn, at like intervals, when on the starboard tack one blast, when on the port tack two blasts in succession, and when with wind abaft the beam three blasts in succession. As neither vessel complied with this rule, they must both be held liable for the consequences of the collision. The liability of the steamer was admitted at the hearing. The schooner does not admit hers, but it seems to be equally clear. A vessel is under obligation to observe the rule, not only when she is actually enveloped in fog, but also when she is so near it that it is necessary that her position should be known to any vessel that may happen to be within it. The master .of the schooner was aware of the fog to the soqthward from the fact that Pollock Rip light was obscured. His excuse is that he mistook the steamer's mast-head light fOl" the light of. a vessel at anchor on the shoals. That certainly is not a good excuse. The bright mast-head light was a clear indication that a steamer was approaQhing with her side lights obscured by fog. It seeins incredible that a vigilant and skillful officer could mistake the bright mast-head light of a steamer, nearing him at the rate of 11 knots an hour, for the stationary light of a vessel at anchor, several miles away. Capt. Lewis, her master, admits that he was just approaching the fog-bank when the light was reported, and thought the light might be the mast-head light of a steamer coming north, and that he kept off a point to give his vessel more freedom of action in case his suspicion should be confirmed. This admission is fatal to the schooner's case, as it places her in a situation in relation to the steamer where it was her clear duty to sound her fog-horn. Both vessels being found to blame, a decree is to be entered for the libelants in each case, the damages to be divided. Ordered accordingly.
lUVIa a.nd others
(Diltrict Oowrt, B. D. Pen'n8l1Wania. May 4, 1886.)
1'tI.AmTIME LmN-FoREIGN PORT-COOPERAGE-WHARFAGE-NEGLIGENCE.
The libelants furnished wharfage and cooperage materials for the ship Tonawanda. of Philadelphia, at Jersey City, at the request of A & Co., who had been the ship's agents in New York, and who were dealt with as such, when in fact, although unknown to the libelants, they were the owners of the ship. Payment was promptly sought of A & Co., and, upon their promise to pay. the Tonawanda was allowed to sail for Europe. She returned.to Philadelphia twice, but of these visits libelants knew nothing. On her subsequent return to Philadelphia she was attached. This was two years after the expenses were incurred. In the mean time the ship had been bought by the respondents. Held that, as the expenses had been incurred in a foreign port, the unpaid charges became a lien to which the libelants were still entitled, as the facts do not show them to have been guilty of negligence,
In Admiralty. Theodore M. Etting and Thomfls S. Williams, for libelants. Henry R. Edmunds, for respondent.
BUTLER, J. The libelants furnished the Tonawanda with wharfage, at Jersey City, in July and August, 1882, for which (and a small amount of material for cooperagej $272.75 are claimed. The vessel was in charge of Zetlosen & Co., of New York, who were dealt with as agents. The bill, as rendered, waS originally a trifle larger, and was reduced to the sum stated by agreement with Zetlosen & Co. The vessel sailed for Europe, leaving the bill unpaid; and in about six months thereafter came to Philadelphia, where the respondents bought her. She had formerly belonged to the Copes, of this city, but had been sold and transferred to Zetlosen & Co. before the charges for which she is sued were incurred. Of this sale and transfer, however, the libelants were ignorant; and Zetlosen & Co., who had formerly had her in charge as agents, were dealt with in this character. After remaining in Philadelphia for several weeks undergoing repairs, she made a second trip to Europe and back to Philadelphia. In November, 1883, she again sailed for Europe, and on her return to Philadelphia, in July, 1884, was attached for this claim. Payment had been sought of Zetlosen & Co. pr9mptly, but the libelants were put off from time to time with promises which were never After several months of delay thus obtained, inquiries were directed respecting the vessel's itinerancy, and she was eventually discovered to he at Trieste. On her next trip to this country she was attached, as stated. When at Jersey City she was in a foreign port,and the unpaid charge there incurred consequently became a. lien.
by C. B. Taylor. Esq., of the Philadelphia bar.