M'KAY tI. ENNIS.
mind the very broad exemption of this policy "of all 'perils, losses, and expenses arising from or consequent upon negligence," and that jettison or voluntary scuttling is not a distinct peril or loss of itself, but is such only when covered by a peril insured against, I find it impossible to avoid the conclusion that the loss in this case was within the exception of this policy, and that the libel should be dismissed.
McKAY et ale v. ENNIS et al. l
(Di8triet (JQU'I't; 8. D. New York. December 21, 1888.)
BBlPPING-BILLS OF LADING-MISCONDUCT OF MASTER.
A master who is in doubt as to the weight of cargo received, and who con· sequently inserts in the bill of lading. "Vessel not responsible for difference in weight. " is not chargeable with misconduct in signing such bill of lading, though it eventually appear that it calls for more cargo than was actually received on board. A chartered vessel received on board less cargo than was called for by the bill of lading. through fraud or error of the consignor. but the master. before signing. inserted in the bill of lading. "Vessel not responsible for difference in weight," and she thereafter duly delivered her cargo. but, owing to the error in the bill of lading. the draft drawn against it being protested. and the transmission of the bill of lading being delayed. no consignee appeared to receive the cargo on arrival, and it was consequently taken by the collector and afterwards sold for customs duties. Held, that the ship had made a "right delivery" of her cargo. and that the charterers, who were also the con· signees of the cargo, were liable for the agreed bire of the ship, notwithstanding that they had suffered an indirect loss through the error of the bill of lading. by not having funds sufficient to meet the draft drawn against the quantity specified in it; such damage being too remote to be off-set.
BAME-CHARTER-PARTy-WEIGHT OF CAllGO-LTABILTTY OF VESSEL-BET-OFF.
In Admiralty. Action for charter money against charterers of the bark Platina. R. D. Benedict, for libelants. Whitehead, Parker &: Dexter and Mr. Parker, for respondents.
BROWN, J. On the 6th of February, 1888, the libelants, owners of the barks Platina and Silicon, entered into two separate contracts, by which they cbartered those vessels to the respondents to proceed to load with ore at Santander, Spain, and to deliver the same at Philadelphia. The Platina loaded at Santander as agreed, and, having received her cargo from Casuso y Hijo, a bill of lading therefor to his order was delivered to him by the master. On arrival at Philadelphia, about May 1st, no person appearing with the necessary bill of lading or other documents authorizing them to receive delivery of the cargo within the time limited by law for unloading, (Rev. St. § 2880,) it was directed by the collector to be discharged and
lReported by Edward G. Benedict, Esq., of the New York bar.
store; to avo!d furt?er it for ,Iuhes and charges, a balanoe msuffiClent to pay the 'fr?ight the charter. ' fhe libelants, had given notice to the lectOr, tolaw, of their lren on the cargo for freight; and on the 'tril;i.l, :action they offered to assign the claim and the lien to the 'defendants on payment of theamoullt due under the charter. 'The fendants had a contract wHhCasuso whereby the"latter agreed to sell them iron are to be shipped on various vessels as sent to Santander therefor by the defendants; the are to be "delivered into the ship's hold, free of scale," "the weights to be according to United States custom-house certificates; terms of payment by draft at 60 days' sight on London bank credit for amount of-invoices, plus advances to the master, acceptable against delivery of bill of lading and consular invoices." The Platina and' the Silicon were chartered by the defendants and sent out for the receipt of are under the foregoing contract. The Silicon beillg loaded first, Casuso presented for signature a bill of lading ,stating the receipt of 945 tons. The master I' believing that the vessel carried only 825 tons, at first refused to sign the bill of lading; but he finally yielded to the'importunity of Casuso, and signed the bill of lading, after first adding, "Vessel not to be responsible for difference in weight;" but before sailing he entered a protest with the consul against the bill of lading, made out for an excessive amount, as he believed. Afterwards the master of the Platina was in like manner ind uced by Casuso to sign a bill oflading for 1,015 tons, the same clause being first inserted in the body of the bill ofll).ding. On the subsequent delivery of the cargoes it was found that by the United States custom-house certificates the weight of theSilicon's cargowas but 788 tons, and tha.t of the Platina but 949 tons. Upon receipt of the bills of lading severally, Casuso at once drew drafts on pursuant to his contract, for tht') full number of tons stated in the respective bills of hiding and invoices; and the draft on account of the Silicon's, cargo, being presented first, was paid. The defendants were informed by the libelants at the outset that the two barks could not carryover 1,800 tons; they had consequently provided credit in London for that amouJ;1t only; and when, the second draft was presented, based upon the Platina's bill of lading of 1,015 tons, the gross amount of the two bills of lading and invoices-1,994 tons-being considerably in excess ofthectedit provided, payment of the second draft was refused. Delay ensued in the transmission of t'he bill of lading thus thrown back upon Casuso, who sent it to Brown of Philadelphia, for his acco,unt. But it was not lE)Ceived by them uhtil after the collector had taken possession of the cargo, and had· begun to store it. An attachment had also in the mean Hine been iS8uedagainst'the cargo upon a debt of Casuso to one Romaine, and the defelldantshad,also attempted to libel the cargo. But neither Drown Bros. nbi-the defendants, who had notice of all the to interfere with thecollector's possessiol1, or to enter ' the 'goods; an'dpay, the freight and ,charges., , :. Upon these· facts the defendants contend that the masters of both vessels are chargeable with misconduct in signing the bills of lading pre-
M'KAY V. ENNIS.
sented by Casuso, and that the loss occasioned thereby is a defense to this action. The defendants, it is true, have paid Casuso nothing for the Platina's cargo, and ha.ve never received the bill oflading; but they have received no benefit from the Platina's voyage under the charter, and have also sustained a: loss from the short delivery of the Silicon. Several of the questions which have been raised, growing out of this transaction, are not necessary to be considered, the action being founded upon the charter, for the recovery of the charter moneys, namely "8s. per ton of 2,240 pounds delivered." The only questions are: First, whether the vessels made a "right delivery" of their cargo; and, secund,· whether the respondents' losses,· under the circumstances stated, constituteany legal or equitable ground for recoupment. L There is no doubt that the stipulated hire of thePlatina was earned. The Silicon's cargo was received by the respondents in the ordinary course. The Platina's cargo was not received by the respondents; but that was only because the respondents did not obtain from Casuso, the shipper, the necessary invoice and bill oflading to enable them, underthe customs laws, to enter and receive the goods within the time allowed by law after the ship's arrival and readiness to deliver them. Thereis·no suggestion that the action of the collector in Philadelphia was not strictly legal, through the failure of any person to appear and enter the goods. The ship's discharge of the cargo under the direction of the collector wl1s therefore "n right delivery" of the cargo, and a fulfillment of the ship's contract under the charter.. That completed her right to the stipulated chatter money or hire, namely, eight shillings per ton, upon the amount delivered.· The respondents became, under the charter, liable perSonally for the freight earned; and the cargo, lawfully delivered to the cOllector, was also subject to a lien foithe freight, and remained in his hands for the benefit of whoever might prove to be entitled to it. Had there been no customs regulations applicable, the master might lawfully have stored the cargo on notice to the respondents, and the freight or charter money would have been similarly earned. Fox v. Holt, 4 Ben. 278, 299-302. 2. I do not think any legal or equitable ground ofreconpment is established. It is assumed by the respondents that Casuso's conduct was fraudulent. There is doubtless strong suspicion of fraud on his part. But it is not the necessary inference, even from the testimony of the master, which is the only evidence in the case bearing upon that point. He says: "The ore was loaded from lighters. They had no facilities· down there for weighing it, anyhow, "-and that he was not exactly certain about the weight; thatCasuso told how much each.1ighter carded; andhe figured it up, making it 1,005 tons. The bill of lading presented being for 1,015 tons, he objected to signing it, but fidally so, after inserting the clause, "Vessel not responsible for diffet'en<ieof weight." I do not think there was any breach oflegal or eqUitable obligation by the lllaster in signing the bill of lading in that form, under' such circumstances. The bill of lading, with such a clause, is notice to whoever takes it that the amount and weight specified in the bill of lading are ridt guarantied. It is substantially equivalent to the other 'phrase.
"weight unknown,» upon which it is well settled that the indOIsee for value takes it subject to all risks as to the actual weight of the cargo. See The Querini StamphaZia, 19 Fed. Rep. 123, and cases there cited; Je88el v. Bath, L. R. 2 Exch. 267. Where there is dispute about the weight between the shipper and the master, I see no other course that is reasonably practicable than to sign the bill of lading with some such qualifying clause, except in a very gross case. It would be absurd to require the ship to incur the expense of unloading the cargo for the mere purpose of reweighing it, even if the means of reweighing were at hand. The master would not be permitted to sail without signing any bill of lading; and the result would be a dead-lock until one or the other yielded. In the present case, moreover, there was an incongruity likely to lead to difficulty in the very terms of the contract of sale between Casuso and the respondents. That contract says: "Weights to be according to the U. S. custom-house certificates,» which of course could only be obtained upon weighing at the end of the voyage; while the payments were to be "by draft on London, for amount of invoice, acceptable against delivery of the bills of lading and consular invoice;" that is, invoices and drafts were to be based on approximate estimates before the final determination of weights at the close of the voyage. Considering that there were no facilities for weighing at the point of shipment, the necessary inference is that the respondents by their contract with Casuso were willing to trust him to make out a proper estimate of weight for the invoice and bill of lading, with authority to draw accordingly on London, leaving the final adjustment of balances to be made up after the weigher's certificates were obtained on delivery at Philadelphia. The respondents, therefore, took the risk of Casuso's accuracy, as well as of his honesty, in making out his invoices and bills of lading. Had the respondents nQt limited their credit in London, the second draft would have been paid like the first; and the claim against Casuso for excessive weight on the Platina's cargo would have been but a little over $100, without any of the large consequential loss which finally arose through the storage and sale by the collector from the want of a timely receipt of the invoice and bill of lading at Philadelphia. It does not appear that the respondents, on arrival, endeavored to en"1er the goods on a bond for forthcoming documents, as they might have done. Nor does any sufficient reason appear why, as soon as Brown Bros. received the bill of lading, the respondents should not have taken up the draft and bill of lading, and have then entered the goods in order to avoid a much greater loss; looking to Casuso for the difference on final adjustment. The attachment suit of Romaine against Casuso was no obstacle, since the goods became the property of the respondents under the contract from the time of their delivery on board the vessel. However this may be, no fault in the vessel is proved, and in no event could the master or the respondents be held for these large consequential damages. There is no evidence that the master had any knowledge of the terms of the contract between Casuso and the respondents, or of the
THE ANN L. LOCKWOOD.
limited credits provided by the respondents in London to meet Casuso's drafts; and these were the accidental causes of thlJ delay in the receipt of the bill of lading that caused the loss. Had the master signed the bill of lading as presented, even without qualification, no claim to these large consequential damages that accrued in Philadelphia could, I think, have been maintained; because they were not the natural consequences of the master's act. The claim would have been limited to the value of the shortage in weight; and any such liability for shortage is precisely what both vessels stipulated against upon the face of the bills of lading. This was notice to everyone, the respondents' agents in London as well as others, of the liability to such shortage; and it was all the notice that the master was called on to give, under the circumstances of this case. The libelants are entitled to a decree for the stipulated freight as the charter money earned by the ship's right delivery of cargo, with interest and costs; the decree to provide for an as!'lignment by the libelants of their claim and lien for freight upon the proceeds of sale by the collector, on defendant's payment of the amount of the decree.
THE ANN PEARCE
(Di8trict Court, D. Delaware. December 28,1888.)
A vessel at least six miles from shore, submerged from midships to bow, her running rigging overboard and snarled fast, her boat gone, her cabin, fore· castle, and galley full of water. a distress flag set, and deserted by her crew, who had left no signs of an intention to return, and were not visible, is prima facie derelict and abandoned, though she was anchored, and her master was intending to return to save her, and had telegraphed for a wrecking vessel to assist him.
The respondent. a strong, well·equipped vessel, found a vessel in distress, and abandoned by her crew, about six to ten miles from shore. Respond· eut's master, discerning no signs of the crew, who were ashore ata life-sav· ing station partially hIdden behind a small hillock, and there being no sign when tbe vessel was abandoned except It live dog, took her in tow. During the following night the tow-lines parted in a gale, and the crew placed on the distressed vessel were forced to abandon her. She was afterwards found adrift, and taken to port. Held, that the respondent, having acted in good faith, with reasonable expectation of saving the vessel, was not a trespasser, or liable for the injury caused by the gale that compelled her abandonment.
In Admiralty. Libel in rem by George B. Pearce, master of the schooner Carrie Hall Lister, against the schooner Ann L. Lockwood, for injury done the tister by a gale, while in the possession of the LoCKwood. Ohaa. O. Lister, Levi Bird, and Henry R. Edmwnds, for libelant.
by Marks Wilks Collet, of the Philadelphia bar.