THE MAIDEN CITY.
As respects the charge of infringing letters No. 333.862, ·it is sufficient to say that we cannot sustain the patent. It is for rendering the carbureting vessel detachable, virtually for removing the solder which constituted the original fastening and substituting a screw. That is the whoJe of it. The opening originally left for inserting a pipe would, of couree, answer as a feeding place when the vessel was detached; and, with this opening, of course another in the side would be superfluous. Surely when the convenience of filling the attached vessel was realized, any ordinary mechanic would have suggested the means of making it detachable. The question of infringement here need not be considered. The bill must be dismissed, with costs.
THE MAIDEN CITY. GASTOVER ..,. THE MAIDEN
(.Di8friot Oourt,8. D. Alabama. July 80. 1887.)
SHIPPING-eHARTER-PARTY-EXCE88 OF FREIGHT.
Plaintiff chartered a vessel for a lump sum. The master of the ve8sel made a subcharter-party. the freight earned on which exceeded the lump sum remaining due on the original charter-party. Held, that the master was not justified in refusing to pay over such excess to plaintiff by t):le existence of a' separllte contract between plaintiff and a third party as to the disposition to be made of such excess.
2. SAMEI-CHARTER-PARTy-RIGHT TO EXCESS OF FREIGHT-'REMEDY AGAINST SHIP. ..
If a vSllsel is chartered, and the master is agent of the OWners, itis his duty to collect freight for the charterer, and the ship will.be liable for a refusal to pay over on his part unless the master is made the charterer's agent by vir· tue of some express authority conferred on him by the charter to act as hi.
In Admiralty. Libel for excess of freight earned. January 7; 1884, A. Berryman, as the master and agent of the bark Maiden City,of St. John, New Brunswick, then at Newport News, Virginia, chartered that vessel to A. Gastover to take a cargo of cotton froin Norfolk, Virginia, to Barcelona, thence to proceed in ballast to Trapani, Sicily, and there take on a cargo of 1,300 tons of salt and carry the same to Boston or .Gloucester, Massachusetts. The lump sum to be paid was £1,800-£1,200 at Barcelona, and the balance on delivery of the salt. On the same day the master made a subcharter-party with Richard Gurney, under which the vessel was to proceed from Barcelona to Trapani, and thence take on salt as above. At Barcelona the amount stipulated was paid, and the freight on the salt realized £747, 10s.-about &713.90 more than was, under the lump-sum charter-party, to be paid on the full completion of the voyage. ThlS amount the master refused to pay over, and.Jor it Gastover libels the vessel in Mobile. The master inter-
venes, as claimant, and sets up sundry defenses mentioned in the opir..ion. ' Overall Beator, for libelant. R. H. Olarke and Pillands, Torrey &; Hanaw, for olaimant.
TOULMIN, J., (after stating the facts as above.) The issue between the parties is as to the right of libelant to recover from the bark Maiden City the excess of freight collected by the master on the salt cargo under the subcharter-party; that is to say, the amount of freight collected by him over and above that due the ship under the original or lump-sum charter-party. The several charter-parties should be taken and considered together, , in order to ascertain what the contract really was between the parties. The lump-sum oharter-party provides that the freights which are earned under the subcharter-parties shall belong exclusively to the charterer, (libelant,) subject to the lien of the ship for freight under that charterparty, and that it shall be paid to charterer's agent, and the salt charterparty provides that the freight under it shall ,be paid to the master or agent. While the libel do'as not allege that it was paid to the master, the answer does so state. ' But the libel avers that the master has failed and refused to pay over such freight in accordance with the contract, and with his duty. The charter-parties were made by the master for the ship, and the subcharter-parties were signed by him in accordance with the terms of the original or lump-sum charter-party. The contention of ,claimant is,-F'irst, that libelant is not entitled to recover at all, because it appears by the evidence that one Barton Myers, the ship-broker who negotiated and procured the charter-parties, is to receive whatever may be recovered in the case, and that libelant has no interest in it; and, second, that if libelant is entitled to rl3cover at all, he cannot maintain this suit in rem against the vessel, but that his remedy is in personam against the master. , It does appear from the evidence that, by some agreement between the libelant and Myers, the latter was to get the benefit of any profit that might be made out of or under the charter-parties over and' above the J;:l,800 provided to be paid on the lump-sum charter-party, and that the libelant agreed to give such profit to Myers in consideration of the Itltter's guaranty to him against loss on the lump-sum charter-party. Whatever, profit Gastover shollld make he was to let Myers have, and whatever 11e may recover, in this suit he is under obligation to pay over to Myers i hence it is that Myers says Gastover has no interest in the suit, and that the money recovered will belong to him. The master and owner of the vessel had nothing to do witll· this agreement. It seems to me that it does not affeot them in any way, and, in my judgment. it can have no influence on the contract between libelant and t1'." tliJ'lp, tV11luh is the foundation of this suit. The contract on which the proceeding is based is a maritime contract, to which Myers was not a. party. It has not been assigned to him. He has no interest in it, so far as the contract itself ahows,., and he could not; under the evidence, maintain an ae-
tion on it. If a suit can be maintained on this contract, and for the money due under it, my opinion is that Gastover is the proper party complainant, and what he does with the money recovered, or what his obligations are as to it, are, it seems to me, no concern of the claimants. If the master collected freight money which the libelant was, under the contract, entitled to, then ought he not in equity and good conscience to recover said money? But is the ship liable for it? I think this depends on the question whether the master, in collecting the money, did sO as agent of Gastover, or by virtue of his office as master of the vessel. If the master had been authorized to sell the cargo as Gastover's, and to collect and return the proceeds thereof to him, he would have been his agent, and his refusal or failure to pay over such proceeds would have created no liability on the ship and owners, but would have created a personal liability of the master only; or, if the master had been the consignee of the cargo, then all his acts relating to the sale and disposition of it after it was carried to the port of destination would have been as agent of the shipper, and the ship and owners would not be responsible. If he had been especially designated and authorized by Gastover to collect his freight, and he had done so, and then refused to pay it over, it would have been a personal liability only. See The Waldo, Daveis, 161; The Williams, 1 Brown, Adm. 208. But those acts of the master which are in the scope of his authority and duty as master bind the owner, and create a lien on the vessel. The master was the agent of the owners of the ship in making the charter-parties. If a vessel is chartered, and the master is the agent of the owners, it is his duty to collect the freight money for the benefit of the charterers. 2 Pars. Ship. & Adm. 26; 2 Pars. Mar. Law, 391. But ifhe fails to collect it, and the charterers had appointed an agent to do so, the ship and owners would not be responsible for such failure. Whenever the master's character as then master is dropped, and that of super-cargo or consignee is his acts in relation to the cargo are not binding on the ship arid owners. But the ship and owners are responsible for the acts of the master done by him, as such, in the discharge of his duty, and under the authority possessed by him as master. 2 Pars Ship. & Adm. 29, and note. There is, in my view of this case, a clear distinction between it and the cases cited by the claimant. The case of The New Hamp8hire, 21 Fed. Rep. 924, was where the master dealt with the cargo. His character of master was dropped, and that of super-cargo or consignee began. And I think the court there draws a distinction between that case and one like this, and, in effect, decides that a contract to deliver the cargo to a connamed in the charter-party or bill of lading, and to collect from him the freight, and to pay it over to the consignee, (or, as in this case, the charterer,) makes the vessel liable for the conversion of the money, if collected by the master, and not paid over by him. In the case of Welch v. McClintock, 10 Gray, 215, a case at common law, SHAW, C. J., says: "The defendant, as master, had the right, by the general maritime law, to receive the whole of the freight, as by the bill of lading which he had signed, but for the money he would have thus received he would
,be acoountable to the charterers,"ete.; and concludes by saying "that it common rule of maritime law that when money is due on bills of lading, whoever is owner, either, 'absolutely or for a particular voyage, it is the ,right of the master, in the ,first instance, to collect it." My opinion is that the contract made by the master, as master and agent of the bark, and to be found in the charter-parties, was a maritime contract,within the scope of his authority as master, under the maritime Iii w, and that it per B6 hypothecates the ship; that by this contract the charterer (libelant) was entitled to the excess of freight collected by the master on the sub-salt charter-party, being the amount <;>ver and what was due the ship; that the master, by virtue of his right as master, and within, the scope of his, authority as such, and in accordance with the terms of the subcharter-partyand the bill of lading, collected said freight; and that on hisrefusal to pay over the same, the ship and owners are responsible. , It is contended by claimants that while the contract under whicb libelant claims may, be maritime, it is enforceable only by proceedings in perBlmam against, the master. There are maritime contracts enforceable in perBt:mam only. This would be the case here if the master had been expressly authorized and requested by Gastover to collect the freight due His liability would him, and he had collected it by virtue of this have been personal to him only. But if he collected it by virtue of his office and authority as master, as I find he did, then,as I have already said, the ship and owners are responsible, and a proceeding in rem against the vessel, is maintainable. The ship's contract was that the master should collect the freight and should pay that part due Gastover over to him. He collected it, but he has failed to pay it over. The decree is that libelant recover of the ship and owners the sumo! $693.31, with interest from August 20, 1884. There is also a claim for demurrage set up in the answer as a defense -indeed, as .the main defense.,..-to this suit. But I take it that this claim has been abandoned, as there was no contention for it on the trial of the cause. I may add, however, that, in my judgment, such claim cannot be maintained on the evidence in the case.
THE OSCEOLA. THE OSCEOLA. l
THE OSCEOLA and THE BELLE.
(District Oourt, 8. P. New York. January 81, 1888.) 1.
OoLLISION-Two PARALLEL Tows-TURNING-DRIFT.
The twp tow-boats B. and O. were making up parallel tows in the East river, the B. being 500 to 700 feet nearer the Brooklyn shore than the O. Both ves-· sels were maintaining their positions against a strong ebb-tide. The B., having first completed her tow, attempted to turn to go out of the river, and, in so doing, struck and damaged libelant's boat on the starboard side of the O. The latter. as the B. approached. did not stop her engines and all<;lw her tow to drift back with the tide. Both boats were libeled for the damage. Held. that the B. was solely in fault for the collision, as she took the responsibility tlf being able to effect her turn; and the libel agl1inst the O. was dismissed,'with- . out costs.
2. SAxE-.,.ERROR IN· EXTREMIS. An error of judgment in eitremis Is not a fault.
In Adiniralty. Hyland Zabriskie, for libelants. Carpenter Mosher, for t):Ie Osceola. Gray, for the Belle·. BRowN,J. 'The steam-boats Belle and Osceola were making up ,allel tows at aborit the same time in the East river, off piers 6 and 7, to ,go uptbe North 'river, and while preparing headed up stream against a strong ebb-tide. The Belle was nearer the Brooklyn shore, and ata distance estimated at to 700 feet from the line of the OsqeQli . a,nd her tow. Three canal-boats, .of which the boat 'of the placed, according to custom, alonglibelants was one, were side the line of the tow of the Osceola until they could be put in. the last after the rest of the tow had been made up. These three boats were Jlutupon the starboard side; that is, upon the Brooklyn side of the tow. The Belle was about 225 feet long, and having first got prepared to go up the North river, turned around towards the Osceola to go down the Eastr,iyer, having a helper, theAdams, on her starboard side to assist in turning'quickly. The space for turning was judged sufficient:' The .Adamssteamed ahead; the Belle backed at intervals, as wasjudged neeessary;but she did not succeed in to avoid the libelants three outer boats along-side the Osceola's tow; but,rullning herlitem'jlist ahead of them, struck the three in succession, drifting down upon them with the ebb-tide. The charge in the answer of the Belle, that the tow of the Osceola was shoved by the Victoria, the helper of the Osceola, towards Brooklyn, so as to lessen the available space, is disproved; and as the Osceola is not shown to have been heading across the tide towards
Reported by Edward G.
Esq., of the New Yo:rk bar.