KROHN V. THE JULIA.
or stowage of the cargo. By the settled jurisprudence of this circuit, since the decision 'of Mr. Justice BRADLEY in the case of The !lex, 2 Woods, 229, the contract to stow or load a vessel is not a maritime contract, and not enforceable in admiralty. Of course, if the contract, for the violation of which damages are sought, is not a maritime contract, the admiralty is without jurisdiction. Neither on his pleading nor on the facts of the case is libelant entitled to recover in admiralty. A decree will be entered in this case dismissing the libel herein against Manson Bros., with costs of both courts. \
(Circuit Court, E. D. Louisiana. January 19,1889.,
A libel alleged that the schooner received a certain quantity of charcoal consigned to a place named on account of libelant; that the master contracted to carry the charcoal to 'the place of destination, there to sell the same; and account to libelant for the price at a given rate per barrel; that the agreement ,is the general custom among charcoal schooners; that the contract was one of affreightment, whereby tbe schooner was to transport the charcoal and of· fer it for sale, under obligation of accounting for the price named; that the schooner sold the charcoal. and refuses to account, the master's receipt being for the charcoal at the stated rate per barrel, "to be paid when sold out." Held that it showed a transfer 9f the title to the charcoal tothe schooner, and not a maritime contract; and that the admiralty court has no jurisdiction.
In Admiralty. Libel on contract. H. P.Dart, for appellant. Hor'ncrr & Lee, for appellee.
On appeal from district CO\!rt.
PARDEE, J. The libel alleges that on or about the 15tl! day of January, 1888, the schooner Julia, of New Orleans, whereof Meyer was master, being then in the Tchonticabourg river, Mississippi. depigned on a voyage to New Orleans, did receive from libelant 1,330 barrels of charcoal, consigned to order, to New Orleans, on account of libelant; that the said master contracted, in behalf of the said vessel, to carry said charcoal to New Orleans, there to sell the same, and to account to libelant for the price thereof at the rate of 15 cents per barrel; that the agreement thus made is the general and usual custom among charcoal schooners; that said schooner Julia received the 1,330 barrels of charcoal, and brought the same to New Orleans, there sold the same, and now refuses to account for the said proceeds, as covenanted by the said master; tbat the said charcoal was sold by the said schooner at the price of 15 cents per barrel, and that the sum now due libelant therefor is 6199.53; that libelant received from said schooner Julia the receipt hereto attached as part hereof, at the time of said shipping and said furnishing; that the whole was sold and delivered on the faith and credit of said schooner v.37If.no.7-24
J:ulia, and that the said liable therefor" has a lien and privilege upon ,said schooner therefor. nexed to the libel reads:
by law libelant The receipt an15; 1888. ,
"Received on board schooner JuHa.from Henry Krohn. one 'thousand three hundred and thh;ty barrels, of cbarcoat at 15 cents per barrel, $199.50; wood. $1.75: $3.05.-al1 to be paid when sold out." · by Ie.ave, tl).e libt!lant amended his libel, and in said amendment declared ",that the contract with the said schooner was a contract of affreightment, whereby the said schooner was to receive on board the said charcoal. and the same to transfer to and deliver at New Orleans, and offer the same for sale under obligation of accounting to libelant for fifteen cents per barrel net." To the libel, as amended, the claimants excepted, on the ground the court is without jurisdiction in admiralty over the matters'and things propounded in said libel. The case in this court,s1;llnds entirelyupop this exception t9 t,he jul'isdiction. A careful examination of the libel, as amended. and the contract attached, results in the conclusion that. the contract sued on was nota maritime contract. According :to the libel as' amended,' the liability assumed by the schooner was 'to apC!?unl for th.e 15 cents a barrel net.. It. does not appear ,but that the schooner was at liberty to do whatever its master might think best withregard to the charcoal. He could sell it nt the place he it.· He could carry it to any port that he pleased. His liability, in any event, even in case of 'loss by peril of the sea, while thechi1rcoal was in transmission to other port, was the fixed price 9f15 pents per tions of the libelant as to the custom among charcoal schooners, and as taJhe by the.schooner Julia, do pot appear to be sufficient to give the written contract any other character, than. that stamped on its face, i. e., a sale. In t)le Har.dy Case, 1 Dill. 460, there was a maritime contract, the affreightment of goods; and therein well be'lllaintained, although incithe jurisdiction' in admiralty deptally., in tbe affreightment contract, was 8 provision that the ship should collect from the consignee ,the price of tbe goods, and Sh01;ild return the same to tbeconsignor·.and although the default claimlj!d ip the was in regard to such ,incidental stipulation.. In the present case best showing that can ,bE! for libelant is that in the contract of sale was an incidental stipulation that the goods should be carried to New,.orlenns,and sold,tho\]gh compliance or non-compliance with such incidental stipulation would not affect the schooner's liability J or nt all change the relation of the parties to the goods. Being of the opinion that the transaction upon which the suit was was one that vested title and ownership a,t oncein thescbooner, and was not.8 maritime contract, lam clear that tbe exception to the jurisdiction should be maiptained, A dccree will be entered dismissing the libel, ,with costs in both this and the district court.
HALL". OCEAN' INS. CO.
(Oircuit CoiJ,rt, D. Maine. January 12, 1889.)
MARINE INSUllANCE-TOTAL Loss-BALE-AuTHORITY OB' MASTER.
A vessel laden with coal, valued at $9,000. struck on the beach, on the west side of Block island. about 10 o'clock at night, and in a thick fog. She lay on a sandy beach. with rocks and stones under and around her, nearly 01' an even keel, and head on to the beach, but so that she was broadside to the sea. On tb,e next morning the wind increased somewhat in violence, and as the tide arose the vessel chafed heavily; and about 10 A. M. bilged. and filled with water. The master applied to a wrecking company, who offered. to _get , . the vessel off for $5,000. The following day the owner's agent arived.. The . weather had moderated somewhat. A survey was called. and four days later ' ..the· "essel was sold at auction for $610. The vessel was in an exposed condithat a large proportion of coal vessels which tion, and local are bilged on that part of the island become a total loss. Held. that.the master was justified in making the sal'e, and the insurers liable for a total loss, though the vessel was afterwards saved. .,
Benjamin .Thompson, for libelant. A.A. Strout and S. Park, for .respondent.
Libel on insurance·policy.
as for a tatal loss on a policy of insurance signed by.the respondents,
CARPENTEB,J. 'This isa libel in admiralty, wherein thelibelant claims
January 10, 1887, on his twenty-two sixty-fourths interest in the bark Geol'gietta, which went ashore,on Block island ,June 22, 1887. The master callada survey, and in accordance with the advice of the surveyors advertised the vessel tor sale\ and sold her by auction. Before calling the survey, he communicated with the owners of the bark in Portland, and they sent an agent to. Block island, who advised with the master as to the course proper to be pursued. After the vessel :was sold, the purchasers hauled her off the beach, and towed her .to New London, where she was temporarily repaired. The vessel, therefore, was not made a total loss soJelyby the fact of Iherstranding, but she beCalIll,} such, if at all, by means and in consequence of the sale by auction. The .question, therefore, is whether the master had authority to make the sale in snch manner as to bind the underwriters. The respondents set up in their answer that the vessel went aahore through the fault of the master and crew, ·but this defense was not. seriously pressed in argument, and I find nothing.in the testimony to support it. I also find as matter of fact on the testimony. t!mt. the master acted in good faith in the matter of the sale of the vessel. Tbe main argument of the respondents is in support of the position that the master can have no power to sell the vessel 80 as to .bind all parties concerned, including the underwriters, in a case where it is possible that the owners should be notified of the peril of the vessel, and should have anopportunity to direct the master. To. this point many decisions have been cited, and the whole question has been very thorougllly $ond ,&cutelyar:gued. The <lases are not altogether in accord,. and .the rW6$