REPORTER. KARO. 1
TONS OF SULPHUR.
THE KARO tI.
Two. R UNDRED
(Diat1'iCt OQurt, E. D. Penn811lvania. 1886.)
1. CHARTER-PARTY-LIEN FOR FREIGHT AND ClIARGES IDmER''':'''FRAUDULENT
BILLS OF. L A D I N G . . .
Where the charterer of a ship, under a charter-party giving the 'owners a lien on any part of the cargo for all freight and charges named therein, issues, fraudulently, a bill of lading for the goods of a third party, who had no . knowledge of the charter-party, the goods so shipped .are subject to the lien given by the charter-party, where the master acted in good faith.
2.SAME-EF'FECT OF BILL OF LADING.
The acceptance of cargo, as by general ship, from one Ignorant of the fact the ship is chartered, orsjguing bills of lading inconsistent with the charter-party, would estop the against that part of the cargo so received,of any claim for freight; except that speCitiedin the bills ofiading.
In Admiralty. Morton P. Henry, for libelant. Driver &- Ooulstm, for respondent.
BUTLER; J. There is very little, if any, dispute between the parties respecting the facts. The libelant's statement is substantially correct, and is adopted by the court. ,It is as follows:
This was kUbel filed against part· of 600 tons' of sulphur shipped by the charterers at Palermo, for Philadelphia, in which the libelants seek to enforce the lien for the:balance due under a Charter-party between Tagliavia & Co., of Palermo, and libelants, as follows: r Charter-party freight, £1,224 ,J!'ifth port of loading, ' 50 ,Demurrage ltoS per indorsement of Taglia.,ia & Co. on the charter-paD;y at fifth port, . -. . 30 For proceeding from Boston to Philadelphia to deliver the sulphur attached, · .: · · · 150 Less freight collected at Boston, Balance due the ship, £1,454 960 .£494
The terms of the charter-party:, material to this question, are as follows: The vessel waS' tQ load at Adriatic ports and Sicily, in rotation, four places oI!ly, as ordered, and to proceed, tp Baltimore. Philadelphia, NEjw York, or Boston, one port only, as orderec;l, on signing bills of lading. Freight was a lump sum, £1,224. l.'he freight to be paid on unloading and rightdeliveryof the cargo, incasb, at current rate of exchange, for bankers' 60 days' sight bills on London, on the date of reporting at customs., less advanced. The charterers to have the option of ordering the vessel to a second northern port of discharge on payment of £150 additional. The captain to sign bills ofIad·
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
Lng as presented, without prejndice to this charter; owners having an abs(}o lute lien on the cargo for all freight, dead freight, or demurrage due to the steamer under this Charter-party. Oharterers to have the option of using one or two additional ports or places for loading in the Adriatic or Sicily. Steamer. in no case to retrace 'her course,-:'paying £50 extra. The steamer to be signed to charterers' agents at ports of loading and discharge. Demurrage over and above lay days, £25 per day. By agreement of second February, 1886, at Catania, in consideration of the transhipment of some cargo taken on board at Fiume and Trieste for New, 'ragliavia. & Co. guarantied that the ship should ,be sent to Boston only, without prejUdice of charter-party, and that the ship should not be liable for this transhipment. Tagliavia & Co., at PalerrrlO, loaded the ship with fruit, macaroni, and sumac for Boston. for which the master signed one bill of ladiJig to Tagliavia & Co., deliverable at Boston, with freight as per charter-Party, and all other conditions. and authorized Tagliavia & Co. to sign partial bills lading therefor as captain's agent. Tagliavia & Co. shipped at the 600 tonsof SUlphur The bill of lading for the fruit 'was signed the day the vessel went to sea. Tagliavia&Co; also presented, at the same time, a bill of lading to be SIgned by the master for the sulphur, making the same deliverable at PhUa.. The master declined to sign such a bill of ladi'ng for the sulphur, as he had no authority to do the agreement at Catania, requiring the· vessel only to proceed to Bost9n. Tagliavia & Co. aSljented to such refusal, and asked the master to sign a simple receipt, prepare«;l by him, for the SUlphur; and stated that he (Tagliavia) would tranship it in Boston. Tne receipt was: "Received on board the S. S. Karo, six hundred tons of sulphur." The transaction took place two hours before sailing from. Palermo. The ves&el arrived at Boston, addressed by the charterers to Messrs. Westervelt & Co., who refused to act as such for the charterer. The master then put the vessel in the of C. Furness & Co., of Boston, who collected the freight on the Boston cargo as called for; as set out in the partial bills of lading issued by Tagliavia & Co. The existence of a bill of lading fbr the sulphur becoming known. and there being no person to receive the SUlphur at Boston, the master, under thedireetionof his owners, proceeded to Philadelphia. Mr. Malcomson, the claimant, presented a bill of lading fQr the sulphur, signed by Tagliavia & Co., naming therein Fratelli. Jung as shipper, and was deliverable to hisorder on payment of freight. It 'was signed, "l!'or the Master. the Agents. TAOLIAVIA & Co.· " and was indorsed, "Delivetto the Canadian Bank of Commerce, New York, or order. F: JUNO." This bill of lading was signed without any authority from the master. The master had no dealings with anyone but the charterers in relation to this cargo. He had no knowledge, or means of knowledge,of the relation of F. Jung to the sulphur. The libelants claimed the balance due on the charter-party.as a lien on this sulphur, which Mr. Malcofpson declined to pay, and this libel was filed against a part retained for freight., Mr. Malcomson appeared as claimant of the sulphur, and subsequently to the filing of this libel, and of the sulphur to him as claimant, he paid the freight called for by the bill of lading of Tagliavia & Co. on 600tons, amounting to $586.80. with costs of suit up to that time. which was accepted and paid without prejudice to either party. It was the master's right, as between himself and the charterer, to coHect the entire freight secured by the contract from any part of the cargo. He might apportion it ratably to every part, and thus collect it from the whole, or allow a part to escape, and collect the entire sum from the balance. There can be no of this. That such a right
was intended to' be vested in him appears from every expression in the
contract'reiiitihg to the subject... While he bound himself to sign bills of lading as presented by the charterer, he stipulated thilt this signing should be "without prejudice to the charter; the ownetshavin,g an absolute lien on the cargo for all freight' * * * due under the charter. ,t It was important to the master that he should not be required to apportionthe freight, which would be diffioult and embarrassing, even if unattended with risk;' but it was of no consequence to the charterer whether it be collected from the whole or Ii, part. Notwithstanding, however, such was the master's right, under the charter, he might waive it, or estop the enforcement of it, as respects others. .The acceptance of cargo, as by general ship, from one' ignorant of the circumstances, or signing bills of lading inconsistent with the charter, would doubtless estop him, as l'espectsthat part of the cargo. For the fruit, sumac, and macaroni the master did sign such bills, or rather authorized them to be signed in his name; and these bills, being transferred to others, carried this part of the cargo, subject only to the freight specified therein. The purchasers were authorized to deal on the basis of the freight specified, and would, therefore,be defrauded if required to pay more. I say this with great confidence, notwithstanding some expressions found in Gracie v. Palmer, 8 Wheat..605. While this case goes great lengths to sustain the ship's ri,ghts, ,under charter, it does not, I think, contain anything calculated to cast doubt on the truth of this proposition. The master's right, therefore,is lost, as respects allthe cargo except the sulphur. . Why should he not. be allowed to collect the freight due from this? He <lid nothing to restrict or right respecting it. ThebiIl of lading held by the respondent 'is fraudulent, and afI'e<rts po one but the charterer, who.dishonestly siglled it. It serves to transfer his rights in the sulphur, but has no other effect. That the master's name was used without autho:dty is proved, and is no longer qttestioned. .It is urged, however, that the master was remiss in receiving the sulphur, under the circumstanc;es attending its shipment, and thus "rendered the fraud possible." :aut the fraud would have been possible, and equally probable, the master done otherwi&e. care on his part eQuId have prevented the issuance of the fraudulent bill. Had the master signed the biUpresented, with proper referenda to the charter, the perpetration of th'e fraud would not have been rendered more difficult; He could not refuse to accept the merchandise. He was bound by the contract 0it,> and when the charterer consented to take his simple acknowl.'· edgrnent of its receipt,and undertook to tranship it at Boston, nothing further was neoessary.Thetransaction was complete, as contemplated by<the charter. . It is assumed that the sulphur was owned and shipped by Fratelli Juugj ,that the master knew it, and should thereforehav6 informed him offhecharter1andits terms. But neither assumption is supported by the;evidence. Not only is it no:!: lJnown that Mr. Jung was the owner, but it is shown. that, if he the master did not know it. ter swears he dId not; that he never ,;heard of'such person; and thls tesh-
mony is unanswered. The probabilities are against the assumption of such ownership. The circumstances tend to show that the sulphur, as well as all the balance of, the'cargo, belonged to the charterer. .The fruit, sumac, and macaroni were shipped by him, and a bill of lading taken in his name. He dealt with the sulphur as his'own, had it in possession, and assumed and: exercised absolute control over it. The master knew. DO one else in the transaction. It now appears, however, that the name·FratelliJung was inserted in the bill presented. The master, as he. testifies, did not observe this, but rejected the bill because Philadelphia was named as the place of discharge. It is probable the charterer purchased the sulphur from Mr. JUllg, and intended to use the bill as a means of payulent; and,being disappointed by the master's refusal, he resorted to the fraud practiced. As before bills of lading contemplated by the charter were intended to be used as acknowledgments merely of the receipt of cargo. An ordinary acknowledgment would have answered as well; and, when the bill for sulphur was refused, the charterer prepared and took such an acknowledgment. Wherein, then, was the master remiss? The charterer having possession of the sulphur, exercising the rights of ownership, and shipping it under the charter, the master was bound to carry it. There was nothing to call for protest or inquiry, as urged by the respondent. The same might be said if it appeared that the sulphur belonged to Mr. Jung, and the master knew it. In such case the charterer must be regarded as his agent, binding him by what was done. The agent knowing all the circumstances, and shipping the merchandise under the charter, the principal would be bound as if he had shipped it personally. A charge of remissness could more readily be sustained against the respondent, and those who preceded him as transferrees of the bill. They knew that its validity depended on the <lharterer's authority to execute it, and that the burde.n of proof respecting this rested on them. Inquiry would have revealed the fraud, and avoided the loss which has followed. What has been said disposes of the entire case. The respondent, standing in the charterer's shoes,-having his rights, and nothing more, -must submit to payment, not only of the balance of freight due under the charter, but also to all other charges which could be enforced against the charterer; that is to say, the charges for visiting a fifth port for loading, for detention there, and for carrying the sulphur to Philadelphia. About the latter charge, I had some doubt at first, but a more familiar knowledge of the circumstances has removed it. Both shipper and respondent intended to have the sulphur carried here. The latter purit with a view to delivery at this port, and it is improbable that he would have consented to its discharge at Boston. Although the .charterer had promised to tranship it there, he did not intend doing so, and, when the ship reached Boston, the master was seriously embarrassed by the circumstance that he could not get rid of it there. He was not required to hunt the respondent up, but was fully justified in proceed. ing to Philadelphia, where, as he knew, the respondent expected it.
Support for the foregoing views may be found in RodoconaclLi v.lIfilburn, 17 Q. B. Div.320; Colvin v. NewbfN'T'Y, 1 Clark & F. 283; Pollard v. Vinton, 105 U. S. 7; F'reeman v. Buclcingham,18· How. 182; Foster v. Colby, 3 Hurl. & N. 705; Gracie.v. Palmer, 8 Wheat. 605; Peekv. Larsen, L. R. 12 Eq. B78; Carver, Carriage by Water, 680; Sandeman v. Scurr, L. R.2 Q. B. 86; The St. Cloud, Br.& Lush, 4; Gledstanes v. AUen, 12 C. B, (74 E. C. L.201) 202; Shand v. Sanderson, 4 Hurl. & N.B81; SmaUv. Moates, 9 Bing. 579; Faithv. East India Co., 4 Barn. & Ald. 630; GilkiBonV. Middleton, 2 C. B. (N. S.) 134"; .Mitcheltv. Scaife; 4 Carnpb. 295; Maclachlan,c. 5, p. 480; Peree v. Alsop, 3 Fost. & F.188; Tate v. Meek, 8 : If the parties can agree upontheamount for which a decree should be entered, in pursuance of this opinion, the costs of a reference may be avoided; otherwise a commissioner must be appointed.·
MCREYNOLDS and others.
January 20, 1887.)
w: D. ilrkan8a8.
, In' a. suit to enjoin the assignment of a judgment 1U a federal court, the court has jurisdiction without regard to the citizenship of the pllrties to such suit.
Such l!;uit is not an, original suit, but is auxiliary to, and dependent, upon, ' ,
nisI suit, may comeiJito court,by bill in equity, and have less of citizenslJ,ip.
(8111labu8, by .the Oourt.)
:Parties to the original Buit, or persons who are not parties to such suit, and areentlt1ed to any relief in connection with or growing out of the orig-
In , D. H. Hammond, Ellis McDaniel, and U.M. G. B. Re8e, for plaiiltiff.' " ' .' ' John and Ben T. Du Val, for defendants. PARKER,J.. This is a suit in equity, brought to prevent defendant McReynolds from assigning a certain judgment recovered, as is alleged bill,'in,this court,March 4,1874, in favor of defendants Whit· taker and Mathews against the county of Carrol, in the state of Arkansas, and tbls"district, for the Bum of $13,988.96. It is alleged in the bill that said judgment was in truth the property. of McReynolds, and that MatheVl'san(i Whittaker were only trustees for McReynolds. It is (urther alleged' that McReynolds, being insolvent, executed to defendant Claypool a general assignment of his property for the benefit of said assignment is made part of the bill, and is void on its face; that plaintiff has recovered a judgment against McReynolds in the circuit court of the state, for Benton county, for the sum of $1,252.25; that said McReynolds has no other property of any kind which can be subjected to the payment of the debt of plaintiff, save and excE'pt the judgment of this court; that, unless McReynolds is prevented, he will assign in this court for the fraudulent of preventing an the application of its proceeds to the payment of the judgment debt due to your orator. It is prayed in the bill that McReynolds may be enjoined from assigning said judgmerit of this court. This suit is.against S. D. McReynolds, S. H. Claypool, Leonard Mathews, Edward Whittaker, ahd Carrol' county. As a matter of fact, the plaintiff, and defenda.nts McReynolds, Claypool,and Carrol county, are citizens of Arkansas, and ofthis district. Mathews and Whittaker are ci.tizens of Missouri.' This fact is conceded. The defendants file a demurrer, and farcause thereof they sllY "tbat, upon the facts stated in said bill, this court has no jurisdiction of the cause, because citizenship and residence of none of the parties, complainant or defendant, are averred in the 'and, for all v.29F.no.14-42