THE C. P. RAYMOND.
of the cargo because there is a necessity for some one to do so, and, like every agent whose authority arises by implication of the law, he can only do what the owner, if present, ought to do. Necessity develops his authority, and limits his powers. What he does must be directly or indirectly for the benefit of the cargo, considering the situation in which it has been placed by the accidents of the voyage," The court, in this case, quote with approval the English rule that the master cannot bottomry the ship without communication with the owner, if communication be practicable, and, a fortiori, cannot hy-, pothecate the cargo except under like circumstances. Upon the facts of this case it appears to me entirely clear that the master acted without authority, so far as the cargo was concerned, in summoning the libelant's tug to his assistance, and that libelant was bound to take notice of this. It is a general principle that all persons dealing with the master of a vessel are bound to inquire into his , authority to act, and, in case of the want of such authority, will not be protected, even though they may have acted in good faith. 1 Pars. Shipp. 147. The libel, as against the cargo, must be dismissed.
and others v. THE C. P. RAYMOND, eto.
(District Oourt. S. D. New York. September 25, 1886.)
COLLISION-Loss OF FREIGHT-DEAD FREIGHT-REASONABLE DILIGENCE m ATTEMPTING TO OBTAIN FRESH OARGO.
Reasonable efforts to secure fresh cargo are required of a vessel which, in consequence of collision, has lost freight, before she can recover dead freight as an item of her damage. 2.
Wharfage and watchmen fees being included in the meaning of the term "demurrage," as employed in the charter-party, should not be allowed as additional items of damage when the charter rates of demurrage are adopted.
On Exceptions to Commissioner's Report. Hill, Wing et Shoudy, for libelants. Wilcox, Adams d; Macklin, for claimants.
BROWN, J. On the eleventh of January, 1885, the bark Margaret Mitchell was so damaged by collision, when on her way out to sea, that her cargo of grain had to be discharged, and a part of it sold. 26 Fed. Rep. 281. She was sailing under charter, and, after the sale of the damaged portion of the cargo, the master applied to the char1 Reported
by Edward Benedict, Esq., of the New York bar.
terers for additional grain to snpply tbe place of that sold. It was not furnished, and, without further effort to procure additional cargo elsewhere, the bark, after being repaired, proceeded on ber voyage. The damages reported by the commissioner are in all $6,535. The libelants claimed dead freight, to the amount of $490.55 additional, for loss of the freight on the grain necessarily sold in consequence of the collision. The commissioner disallowed this item, on the ground that the libelants admitted that they did not seek to obtain freight from outside parties. The loss of freight is undoubtedly a loss to be made good by the wrong-doers in a case of collision, as much as any other item of damage of which the collision is the direct and proximate cause, (The Cayuga, 14 Wall. 270;) but this rule does not dispense with reasonable diligence on the part of the vessel injured. Her legal damage is that which arises notwithstanding the use of reasonable diligence and judgment. Very recently this court has applied this qualification to the duty to raise and repair, and has disallowed the additional estimated cost of repair arising from unreasonable neglect to raise the sunken boat earlier. The Thomas P. Way, 28 Fed. Rep. 526. The same rule must be applied to dead freight. Had reasonable efforts been made to supply the amount of cnrgo sold, and none found, I see no reason why the lost freight should not be recovered. The libelants claim that the burden of proof is upon the defendants to show that cargo might have been obtained of other parties than the charterers. But, in the ordinary conditions of trade, shipments of grain or other cargo, at some rates, at least, must be presumed to be procurable within a reasonable time, in the absence of all proof on the subject. As the libelants have not shown any lack of ready freight in the market, and neither applied to the defendants, or to any other pal,ties than the charterers, nor gave the defendants any notice or opportunity to supply cargo to the bark in place of that lost, the presumption is that the loss of dead freight was rather from the master's neglect to seek it than the necessary and direct consequence of the collision. It would be inequitable to impose upon the defendants a loss which presumably might have been avoided, and which they were given no opportunity of preventing. The ruling of the commissioner is, in this respect. sustained. The defendants have excepted to the number of days for which demurrage is allowed, and also to the allowance of the charge for wharfage and watchmen's fees, in addition to demurrage. Upon consideration of all the circumstances I am not satisfied that the number of days allowed for is excessive. The wharfage and watchmen's fees', as additional items, should, I think, be disallowed, not because they are not themselves proper and recoverable, but because they ought to be deemed included in the rate charged for demurrage. The rate allowed is $57 per day. That is the rate of demurrage stipulated in the charter, and it is testified to as reasonable for this bark. It is con.
THE ELLA 1. SLAYMAKER.
ceded that in a suit for "demurrage" under the charter, the cbarterrate would include wharfage and watchman's fees. It is a mere question the damage caused by the delay. When of the mode of the damage is computed independently of wharfage, the wharfage is to be allowed as a separate item; otherwise not. The adoption of the charter rate of demurrage in this case, and the want of any intimation in the testimony that the charter rate was not a full equivalent, at the time of the injury, for all the items that the charter rate usually covers, lead me to the conclusion that that rate should be deemed to cover wharfage and watchman's fees. In other respects the report is confirmed.
THE ELLA J'. SLAYMAKER.
v. THE ELLA J'. SLAYMAKER.
(Diatrict Oourt, D. Delaware. August 18, 1886.)
A court of admiralty will not try the equitable title to a vellel, or ctlmpel the performance of a mere tru8t, when there is no evidence of a maritime contract between the parties.
2. SAME-MARITIME CoNTRACT-SALE OF VESSEL A8 COLLATERAL SECURITY.
A bill of sale of a vessel as collateral security for the repa,Yment of a loan, or as indemnity against 108s on the contingent payment of oblIgations assumed . for the vendor, is not. per 8e, a maritime contract.
In Admiralty. Benj. Nields, for libelant. Johnston ft Hayes, for respondent. WALES, J. This is a libel to try the title to and recover possession of the schooner Ella J. Slaymaker. The substantial facts are that the libelant, being the owner of the vessel. on the nineteenth day of August, 1884, executed a bill of sale transferring and conveying her to Samuel G. Warner, by way of collateral security, to indemnify the said Warner against loss on the contingent payment of certain obligations which he had assumed for the libelant, with the express understanding and agreement, and upon the special trust, that, when the said obligations were paid and discharged by the libelant, t):le vessel should be reconveyed to the latter; that all the obligations have been paid by the libelant, and Warner is no longer liable for the payment of the same or any part thereof; that the schooner was never delivered to Warner, but always remained in the possession and under the control of the libelant from the time the bill of sale was executed until the second of July, 1886, when she was attached at the suit of one