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.
for the purposes of navigation during the charter period. The purpose of the contract was not at all the mere building of a vessel in a certain way, but the delivery of a vessel having certain guarantied qualities for service under the charter. The reference toa ship "to be built" I construe as words of mere inducement or description, specifying tbevessel to be chartered. Such a contract is a maritime one, and upon the delivery of the vessel, and her running under the charter, she, as well as her owners, are bound by the guaranties contained in the contract. The breach complained of is not the breach of a contract to build, but of the guaranty that the vessel delivered for use under the charter .sha11 be of a certain draught and speed. These guaranties speak from the time of delivery, and form a continuing contract, and the breaches are continuing breaches; and, it being admitted by the exceptions that these guaranties were broken at and from the time of the delivery of the vessel under the charter, and of her entry upon the performance orit, I see no reason why the ship should not bdiable in rem for the breach of the charter in these respects, as much as for the breach· of any other charter obligation, from the time of her entry upon the performance of it. The charter itself furnishes some evidence that it was in the mind of the parties that the ship should be bound for the performance of these guaranties, for the language of the memorandum is that "the steamer * * * guaranties to have· a speed of eleven knots," etc. The case of The Eli Whitney, 1 Blatchf. 360, was not a case of the breach of any part of the contract contained in the charter. Parol evidence offered to prove parol guaranties was ruled out. The rest of the decision was only to .the effect that misrepresentation or deceit as to the ship's capacity, by means of which the written charter had been effected, would not sustain a lien and a suit in rem. The present is not a case of misrepresentation or deceit outside of the terms of the charter; but of a breach of an express warranty contained in the charter, materially affecting the performanee of the contract. For such breaches of warranty, after the ship has. entered upon performance, the ship is liable in rem. The Volunteer, 18um. 551,571; The Tribune, 3 Sum. 144; The Hermitage, 4 Blatchf. 474; 476. Analogous cases are numerous. 2. As respects the joinder of demand for relief in rem and in personam, the of the supreme court rules in admiralty do not touch libels on charters or on contracts of affreightment. It has long been the practice in this circuit in actions on charters or contracts of affreightment to admit the joinder of both forms of proceeding in the same libel. The subject has been repeatedly considered in this and other courts. The Zenobia, Abb. Adm. 48; Vaughan v. Sherry Wine, 7 Ben. 506,. 508, affirmed 14 Blatchf. 517, 519; The Monte A., 12 Fed. Rep. 331,337; The J. F. Warner,22 Fed. Rep. 342; The Director, 26 Fed. Rep. 708, 711; Joice v. Canal-Boat8, 32 Fed. Rep. 553. The· exceptions are overruled·
. FEDERAL REPORTER,
(District Court, D. Washington, W. D. August 6, 1890.)
SHIPPING-AsSAULT BY MASTER-DAMAGES.
In a suit in personam by a cook against the master of an American vessel, upon proof that the master punished the cook for willful disobedience on boaI'd of the vessel in 'port, by assaUlting and striking him upon his head with a belaying-pin, seriously mjuring him. the court awarded as damages $1,500, besides the value of personal effects lost in consequence of the injury.
In such a case, the assertion by the master of the lawfulness of such punishment will be regarded as an rather than a defense; a resort to the use of a weapon or violence being only justifiable when necessary to enforce instant obedience in a case of emergency at sea. (SyHabus by the Court.)
SAME-POWER TO PUNISH.
In Admiralty. Taylor &: HammO'fld, for libelant. Applegate &: Titlow, for respondent.
HANFORD, J. This is a suit in personam against the master of an American vessel, to recover damages for an assault and battery. The proofs satisfy me that the libelant was employed as steward and cook on board the schooner called the Searles," and while so employed, on a Sunday evening, at the port of Tacoma, in this district, on board of said vessel. the master twice requested this libelant to get him a cup of tea, and, upon ·said request being defiantly refused, went into the galley, and there violently assaulted the libelant, striking heavy blows upon his head with a wooden belaying-pin, from the effects of which the libelant was rendered infrensible for a time and quite ill for several weeks, and there is some probability that said injuries may permanently incapacitate him from enduring continuously the fatigue and heat incident to engaging in his prGfession as cook. The only defense urged on the part of the master is that he acted within the limits of his lawful authority in chastising the libelant for willful disobedience of lawful commands, and that by accepting payment of the wages due him the libelant has released the master from all claims for damages. On the facts I hold that the libelant is entitled to recover as damages such a sum as will compensate him for the injury he received, and as will also in some degree punish the master for his malicious and unwarranted conduct in resorting to extreme violence and use of a dangerous weapon. The claim set up by this master that the law authorized him, at a civilized port, to punish disobedience of a cook by resort to measures only justifiable in case of an emergency and of actual insuhordination by a member of the crew at a time of peril at sea merits rebuke, and I regard it as an aggravati.on of the original offense. The proofs also clearly establish the libelant's claim for loss of part of his personal effects, which were in the vessel at the time of his injury, and were, in consequence of his inability to remove or secure them after being beaten until he was rendered insensible by the master, lost; the value being $86.50.
v. 734, 700
There is not shown, either in the defense pleaded in the answer or in the proofs, any such an agreement, based upon a valid considerationi as would release the master from liability to respond in damages for the personal injury and loss of property above mentioned. The court therefore awards the libelant damages for the personal injury in the sum of 81,500, and for loss of property in the further sum of $86.50, and costs. Let findings and a decree be prepared accordingly.
(District Court. E. D. New York. November 10, 1890.)
MARITIMB LIENS LIEN J!'OR FREIGHT DELIVERY OJ!' CARGO WHEN LIEN NOT
A sbip-master discharged a cargo of laths, according to tbe direction of the consignee named in the bill of lading, which were received and piled in the yard of the purchaser, about 300 feet from the vessel. After the completion of 'be dis'charge, demand was made for the freight, but, oWing to disputes as to the amount, the purchaser refused to pay the freight called for by the bill of lading. The master immediately served notice that his lien for freight had never been abandoned, and afterwards seized the cargo under process in this suit. Held, that the lien had not been abandoned.
BILL OF LADING-CONFLICTING COPIES-MASTER'S COPY.
A bill of lading calling for 55 cents freight per thousand laths was delivered to the master of a vessel at Montreal, under which the voyage was performed. 4. bill of lading had been sent by the shipper to the COD signee, which stated the freigbt at 50 cents per thousand. Held, that the bill of lading first executed and delivered to the master, and under which the voyage was performed, was the con" tract binding on the parties and the cargo. .
DELIVERY OF CARGO-EXPENSE OF PILING CARGO.
A vessel cannot be charged with the expense of piling her cargo of laths in the yard of the consignee, where the bill of lading contains no provision as to such .
Suit to recover freight and demurrage.
Hyland &; Zabriskie, for libelant. A. B. Cruikshank and Peter Carter, for claimant.
BENEDICT, J. This is an action to enforce a lien for freight and demurrage upon a cargo of laths and lumber shipped at Ottawa, on board the schooner Nora Costello, to be transported therein to the port of New York. It appears that the Nora Costello and another similar boat" owned by the same owner, having been waiting in Ottawa some time for business, were furnished a cargo by D. Murphy & Co. By direction of D. Murphy & Co., they went to a designated lumber yard and there were loaded, no agreement as to tbe rate of freight having been made. When the boats were loaded the shipper was, for the moment, for some reason, unable to prepare bills of lading, and it was then agreed between him and the owner of the boats that the boats should start at once upoil the voyage, and that he would make out bills of lading for the cargoes,