FEDERAL REPORTER ,·vol.
A person 6nlraged in the business 6ffUi'nishinli to the grain elevators in the port 'of Baltimore barges suitable for; osrrying grain to be used principally for storage when the elevators were full, ,and incidentally to carry the grain to ships loading in the harbor.hCh.a.rtered a canal-boat for 60 days, agreeing to pay for the first calk. .. ing thereof·. te-master thereafter. to keep her in thorough repair, and' to man and furnish her with all appliane·es·. The- purpose. for which she was' to be used was understood by both parties, but was not expressed in the charter-party. Held, that this was a maritime contract. . ._ . .. BA.MIll....BTIPttIJA1'tON :FoR CONTROL-LIABILIT'f -Ilq REM. Notwithsta!ldlng that the of the boat for the period of the contraot,tb,ebQat was liable in rern to him for an Injury to the cargo oaused by the maater'. fa11I11'eto keep het' in thoroilgh repair.
8. BAME-LEA1ONG-EvIDENOB 01' UNSEAWORTHINESS.
ADMIRAL'1'Y--'lbRITmB CONTRAOT-o-CHAR'i'BR 01' CANAL·BOAT POR USB IN HARBOR.
Before the boat was used. her ,deok was reoa1ll:ed at the oharterer's expense, which tlle maater said waaall the repairs she needed. After a short period of usel she was found to be leaky, and.rejeot;ed, Whereupon the mapter took her away, haa her repaired, and broug.ht her back, sa.y.iJ;lg. he had. found the ... and. fixed it. She was again loaded, and shortly after spru!lg a leak which causea an injury to the cargo·. Sh6"wll.8 then taken to a dl'y"dook. where the oakum' was found to be out of lIer sel¥lls .in .several Held suffioient to show that thA injUry was due to a breaCh'of the agreement to keep her in thorough repair, and she was therefore liable foi' the damages. .
In Admiralty. Libel by John Wood against the canal-boat Wilmington. The libelant, Wood, made a contract for the use of the Wilmington, which is.as follows:
"I. John Wood. on this 19th day of J lIJy, 19sO, charter from Dominick Magrlldy th6 boat kqqwn alld called ,the Wilmington. (of w hieh the said Magl'lIdy is master a09. for pf. sixty days from date. The said John Wood agrf68 pay the said Mag/,"udyJIIl;l/lUm of two hundred and fifty dolJarsfor the above-named sixty days·. -'fIle said John Wood Ilgrees to pay for the first calking of the said boat;ltfter Wllich the said Magrudy agrees to keep said lJoat in thol'ough repair. and to "man and furnish her with all IIppurte. nanees." _ . - ' : The testimony shows that' th/dibelant's well-known business was to furnish to the grain elev,ators in the port of Baltimore barges suitable for carrying grain, which they needed when the elevators were full, and which they used principally for storage, and incidentally to carry the grain to ships which they desired to load in different parts of the harbor. This was the purpose for which the barge was to be used in the present case, and was well understood by both parties. The owner of the barge lived in Philadelphia; but the master of the barge, who had brought her to Baltimore, had authority to make the contract. Under this con- \ tract her deck was recalked at the libelant's expense, which the master '\ said was all the repairs she required. She then was twice loaded with !
grain; which she carried across the harbor and discharged into steamships. Then she was loaded at one of the elevators, and lay about 10 days,when she began to leak. The grain Wl1.S taken out of her, uninjured; and her master was told she would not answer, as she was too leaky to carry grain. The master then took her away, had repairs put upon ht'r, and brought her back, saying to libelant that he had found the leak,and fixed it, and now the boat was all right. She was again loaded at on.e of the and moved near to another, and there lay eight days, when she· sprung -a leak in the night-time and damaged her cargo very considerably.' . It is for this damage, which the libelant bad to make good to the elevator company, that he brings this libel against the barge. After the grain was taken out of her, the master had her hauled on the dry-dock for repai.rs, when it was found that the oakum was outo! her seams in half a dozen places, and he was obliged to have her entirely recalkedand repaired. By the contract it was agreed by the master that the boat should be kept in thorough repair; and, from all the testimony, I. have no diffioultyin finding that the damage resulted from a breaoh of this agreement. Although the contraotrecites that Dominick Magrudy was master and owner, he was in truth master only, and Mrs. Ann Magrudy, of Philadelphia, was the owner. She makes claim to the boat; and, besides defenRes to the mE'rits and facts of libelant's claim, she denies the jurisdiction of this court to take cognizance of the case, and denies the libelant's right to maintain a proceeding in rem. It is now, however, I think, qUite well settled that canal-boats, lighters, .barges; floating elevators, and similar floating contrivances, used in harbors as instruments of commerce, are, in like manner as sea-going vessels, subjects of admiralty:jurisdiction, and that oontracts with rt:gard to their employment and repair are maritime contracts, and matters of admimlty cognizance. The Kate Tremaine, 5 Ben. 60; The W, J. Wa18h, Id. 72; The E. M. McChetmey, 8 Ben. 150; The FloaJ,·ing Elevator Hezekiah Baldwin, Id.556;The Northern Belle, 9 Wall. 526; Edner v. Greco,S Fed. Rop. 411. Under the contract in this case, the.canalboat could have been used' for any of the purposes for which such a vessel is suimble; and she was in fact used in two instances to carry grain across the harbor. The fact that the principal use to which it was expected she would' be put, and for which she actually was used, ,was to hold grain on storage until the elevators were relieved, does not,- in my judgment,alter the rights of the parties, In Reppert v. Robin80lI" Taney, 498, it is said: .
"The manner in whieh the vessel is actually employed cannot affecH;te queRtion of jurisdiction. It depend$upon her character. If the repairs fitted her for navigation of the sea, the contract was maritime,; and it .does Dot rest with the owner to confer or take away admiralty juri5dicLion at his pleasure by the mode or trade in which he afterwards employed her."
The objection to the libel most strongly urged ,is to its characte<ras a libel in rem. It is urged that a contract such as the prese::nt one iDll.kes -the libelant theowner··of the .boat during the termor the contraet;;that
she was to him absolutely for 60 days; that he was to have complete control, possession, and command of her; and that. as under such a contract the owner would have no lien on the ('argo for the' hire, the charterer should have no lien on the vessel for damages resulting from her unseaworthiness,or other breach of the charter by the ownf1r. That whE-rethe charterers have the possession and control of the vessel the owners have no lien for their hire, is indeed settled. Drinkwater v. 'l'he Brig Spartan, 1 Ware, 149. The parties in such case have voluntarily entered ,into a contract, the effect of which is held to be to remit the owher ,to . the personal responsibility of the charterer. The charterers .have a lien on the carp;o, and to allow alien to the owner, also, might be to endanger the property of innocent shippers, having no notice of the,coqtl'llct. But the rule of the general maritime lawis that every oontractmade by the master, within the scope of his authority, binds the vessel, and gives the creditor a lien on it for his security. The Phebe, I Ware. 271; The Paragcm, Id. 322. And the exceptions to this rule are nO.t to' be extended unless for imperative reasons. There is high authorityfor saying that even where the whole vessel is demised, or let to hire,a shipper may have a lien on the vessel. In The Phebe it was held thal; the shipper might proceed against the :vessel notwithstanding she was let to a hirer who was to have sole control of her, and notwithstand,ing the shipper would have no remedy inper80nam against. the owner. The Phebe, 1 Ware, 271; The William &- Emmeline, Blatch.& H. 71; The Freeman, 18 How. I CRn see no sound reason why the present case should be held to be an exception to that general rule, inherent in the maritime law, by which whoever deals with the master, within the scope Of his authority, is entitled to look to the ship as his security; and I have been referred to no caBe which so decides. In this case the master knew better than any the age and condition of his boat, and her fitness' to carry grain without injuring it. He undertook to have the repairing done to make her fit after she had once sprqng a lank. He was to remain on board of her, to watch her and her of water. He had expressly stipulated cargo, and, k':lep her wells with the libelant to keep ber in thorough repair, and I fail to see why the boatsbould. not be held liable in rem ,to the libelant for damages to a cargo result-ing from a btel1ch of this stipulation, which cargo the libel· ant,re1ying on this stipulation, had procured for her. and which damage he was answerable for, and-has paid. Upon the theory that this was an absolute demise of the boat, and that the master was in the employment of the charterer, and not of the owner, it is contended that the owner is not responsible for the neglect and defaultsoftltemasterin allowing the leak to get llueh headway as to injure the grain. But the master, who was offered as a witness by the ref'pondentsi and not by the libelant, denies that he was negligent,and declares that he was constantly on board, diligently attentive, morning and evening, to pumping the boat, and states that; when the leak started, it gained so rapidly that no exertions could stop its gaining. Therefore, even though he is regarded as .the servant of the the respond-
ents' testimony acquits him of fault. There is no contention, however, but that when the master made the contract, and stipulated to keep the boat in thorough repair, he was acting on behalf of the owner, and within the scope of his authority, and also that he was so acting when, the boat been once rejected as leaky, he took her to be repaired, and subsequently returned her, saying she was all right, and ready for load· ing. The owners of barp;es to be used for grain have been held by the admiralty courts very strictly to the duty of keeping their boats tight. strong, and in every way fit for the purpose for which they are used; that is to say, so that the water shall not reach the grain. The supreme court has said .that, if they are incapable of this, they are not seaworthy, and that there is no othei' test. The Norfhern Belle, 9 Wall. 526;· 'Kellcgg v. Packet Co., 3 Biss. 496·. In this case the whole purpose and meaning of the stipula:tion that the owner should keep the boat in ough repair was nothing more nor less than that, while subjected toonly the ordinary risks of her employment, she should not so leak as to injure her cargo. r pronounce in favor of the libelant; but, as the testimony with regard to the loss on the wet grain was not entirely satisfactory, unless the parties can agree on the amount, 1 will send the case to a master .to compute the damages. I think it should be shown, with more accuracy than was done at the hearing, how much the grain which was wet was depreciated in value.
FRAME 11. THE ELLA.
(Dtstrlct Court, E. D. Virginw. March 29, 1880.)
MARITIMB CONTRAOT-WJ:IA'l' CoNS'lITUTES-LAUNCmNG STRANDBD VESBEL.
A contract for launching a vessel, where the vessel has been carried a quarter of a mile up the beach by a storm, is a maritime contract, for which thlt vessel is liable
CONTRAC'Il8-DELAY IN PERFORMING-WON UNRBASONABLE.