rule, the language of the contract must express that intent with such a. reasonable certainty as does not appear upon these bills of lading. The evidence shows that in the general average adjustment, which included the expense of discharging the cargo at the ports of distress, and the loss of the respondent's oil occasioned by such discharge, an allowance was made to the respondent as a credit in general average for the oil so lost, on the basis of the New York price, which would include the price of freight to New York. This allowance was made upon 18,000 Ibs. of aU, upon which the freight, at the rate specified in the bills of · As the respondent has the benefit lading, would amount to $ of so much charge for freight, he should pay it to the ship, for which the libelant may take a decree, with interest from November 20, 1890.
NORTH-GERMAN LLOYD V. REULE.'
(Distrl.ct Court. S. D. New York.
November 24. 1890,)
IlILL OF LADING-AGENT AS CONSIGNEE-FREIGHT AOCORDING TO VALUB-CONCEAIr KENT OF VALUE.
A bill of lading recited that additional freight should be payable on the total value of certain precious stones should their real value be discovered to be greater than was declared in the bill of lading j and the consignee received the goods and paid the freight according to the value stated in the bill of lading, and entered them at the custom-bouse under the bill of lading, and under an invoice that stated their value at a much greater sum than that made in the bill of lading. Belet that the stipulation for additional freight upon the actual value was valid, and that the consignee was liable for the additional freight, tllough he was but an agent employed by the shipper to sell the goods on commission. .
In Admiralty. Action for freight. Shipman, Barlow, Larocque &- Choate, for libelant. Stine « Chlman, for resporJdent·
. BROWN, J. The libel was filed to recover an alleged balance of freight due on an importation of diamonds received by the respondent, and entered by him at the custom-house under the bill of lading. The bill of lading stated the value as 7,000 francs, and upon receipt of the goods by the respondent the freight on that valuation was paid. The bill of lading stated that an additional freight of 5 per cent. should be paid on the total value should the real value be discovered to be greater than was declared in the bill of lading. When the freight upon the valuation of 7,000 francs, as stated in the bill of lading, was paid to the libelants, and the goods delivered by them to the respondent, they had no knowledge that the real value of the diamonds in the package was any greater. The respondent, however, had knowledge of their greater value, and entered them at the custom-house upon the same bill of lading and upon an invoice that stated the value of the diamonds to be 27,616 francs.
by Edward G. Benedict, Esq.· of the New York bar.
NORTH-GERMAN LLOYD fl. HEULE.
The libelants claim to recover the additional freight of 5 per cent. on the
actual value, in accordance with the stipulation of the bill of lading. The lawfulness of stipulations of this character in favor of common carriers, to protect them against unknown responsibilities, and to adjust the freight according to the value and the responsibilities assumed, has been repeatedly upheld. See Hart v. Railroad Co., 112 U. S. 331, 5 Sup. Ct. Rep. 1.51; Lit'erpool, etc., Steam Co. v. Phenix Ins. Co., 129 U. S. 397. 442, 9 Sup. Ct. Rep. 469; The Denmark, 27 Fed. Rep. 141; The Bermuda, 29 Fed. Rep. 399, and cases there cited. For the respondent it is urged that he is not liable beyond the amount of freight paid, because he was only an agent to sell the goods on commission. The vessel, however, had no knowledge of this fact. The circumstances sufficiently show that it was the intention of all parties that the respondent, as consignee, receiving the goods under the bill of lading, should pay whatever freight was payable, according to the terms of the bill of lading. It is not a case of any claim outside of the bill of lading, but of a claim strictly pursuant to its express stipulation. The respondent had full knowledge of its terms, and of the real value of the goods, which determined the amount of freight actually payable. There was a manifest attempt by the shipper to defraud the ship of a part of its rightful freight. The consignee had notice of this, and was bound to protect himself before turning over the proceeds of- sale. Under circumstances like the present it is unnecessary to discuss theoretical questions as to the liability of a mere agent as consignee to pay freight, where the cir" cumstances are different and of doubtful import. See Elwell v. Skiddy, 77 N. Y. 282; Sanders v. Van Zeller, 4 Adoi. & E. (N. S.) 260, 294. In cases like this, where a consignee, though a factor only, has full notice of all the facts, and obtains the goods under the bill of lading, and on the obvious undertaking to pay the freight, and pays on the carriers' requirement at the time of delivery all the freight that the carriers suppose to be due, the consignee is properly held for any balance of freight, as well as demurrage, that may be actually owing according to the terms of the bill of lading upon the actual value of which he had knowledge, but which was concealed from the carriers. The Bermuda and The Denmark, supra; Railroad Co. v. Barnard, 3 Ben. 39; Neilsen v. Jesup, 30 Fed. Rep. 138; Galea v. Ryan, 37 Fed. Rep. 154, and cases there cited; Allen v. Coltart, 11 Q. B. Div. 782, 785. Decree for libelant for $265.54, with costs. '
THE BARACOA.. 1
(Di.8trfct Court, So 1). New York.
CHARTEB-PARTY-'-VESSEL NOT IN EXISTE;NCE-MARITIME CONTRACT.
, The lettingbyoharter of a vessel notin existence, but "to be built, "is a maritime contract as,respects the voyages to be made under it, and the guaranties it contains as to speed and draught. , . ' , In such a contract the building of theveslSel is but a preliminary to the substantial part of :the agreement, viz., the delivery of the vessel for navigation as per charter, and a suitfor breach of the guaranties of the charter as to speed and draught is enforceable ,n rem In the aClllilraltiy. In suits on charters or contracts of atrreightment, proceedings in rem and in per.
9,.' SAME-VESSEL' "TO BE BUILT"-BUILDING CONTRACT.
S. PROCEDURE-JOINDER OF SUITS IN REM AND IN PERSONAM.
80nam may be joined.
, In Admiralty. On exceptions to libel. R. D. Benedict, for libelant. Wing, Shoudy &: Putnam, for respondent.
BROWN,J. The libel is brought in rem and in per8O'flam to recover damages for the alleged non-fulfillment of the guaranties contained in a charter of the steam-ship Baraeoa to the libelants. The charter stated that the owners agreed to let, and the charterers to hire, the steam-ship from the time of delivery for 36 months. The ship referred to is described as a steam-ship "to be built on specifications as per memorandum attached." The memorandum attaehed specified a certain draught and a guarantied speed. The steamer, when built, was tendered to the libelants within the time provided, and at the place substituted by agreement in lieu of that named in the charter, and severaltrips were pertormed under it. The libelants, finding that thl:' draught was greater and the speed lellS than guarantied, refused acceptance, and filed this libel for breach of the covenants of the charter. The respondents except on the ground (1) that the contract was one for the building of a ship, of which the court has no jurisdiction; (2) that, as the ship was not in existence at the time of the charter, the contract was not a maritime one; (3) misjoinder of causes in rem and in personam, and that there is no lien for such damages. 1. The fact that the subject of the charter was a vessel that was to be built does not make the charter any the less a maritime contract, so far as respects the letting of the ship after she should be built, or as respects her performance of the voyages contracted for under the specified guaranties. The charter, indeed, contemplated a ship to be built; but that was but a mere incident, preliminary to the essential part of the contract, which was purely maritime, viz., the delivery to the libelant, at a certain future date, of a vessel of certain draught and guarantied speed,
'Reported by Edward G. Benedict, Esq., of the New York bar.