BAGS OF GUANO.
(DtsU'£ct CQUrt, D. Virginia. June 8, ISBa)
A charter-party made November 22d provided for a from Liverpool to Norfolk and back, the vessel to bring over a cargo of guano, ' freight free, and all other conditions as per charter-party, 1I the c1Jarterers to furnish lier at Norfolk with a full cargo of cotton, eto., at SO shillings per registered ton, which was above the current rate ; charter to commence "when the vessel is ready to receive hel" cargo at the ladjnll." and the charterers to liave the right of the contract if she failed to arrive atNorfolk by the16th of February. ,The vessel, through no fault of her own, failed tb1arrive until Apri14th, which was too late to use the guano that year, and the charterers canceled the contract. Htfldj that the voyage commenced at Liverpool, and the cancellation applied to the part alreadY performed. as well as that ·remaining; aUd, as the guano was evidently brought free in consideration oftha high return freigh1;expected, the charterers were to pay reasonable freight'tbereon. ' . . , Under' a libel on .the gualno tor 1;l;Ie freight, the charterers could not claim a set.oir for damagesca,used by the lielay; as a set-oir is unknown to admiralty except as a'credit on the particular which is the subjeot of the libe1
2. ADMlIULTY PRAOTICE-BET-OR.'
In Admiralty· Libel O'Brien against 1,614 bags ofguano, . for freight thereon. DtJ.liree for libelant. Sharp &: Hughea, for Ii belant. Walke &: Old, for claimant.
HUGHES, J .. This isa libelon 1,614 bap;s, part ora ('argo of 1,000 tons, of gUl\no and 287 tons of ties j :brought by the ship John Bryce irom Liverpool to Norfolk. It Was taken out on this residue of cargo while still on the ship, for the sum of 81;561.83, claimed to be due to the ship for freight on the said cargo. The libel is founded on a ,charter-party entered into in the city of Norfolk on, the 22d of November, 1881, between Lamb & Co., agents the ship John Bryce, and, the Seaboard Cotton Compress Company, of Norfolk, which stipulated Jor "a voyage from the port of Liverpool, England, to Norfolk, Va.,and then direct to Liverpool, England," and which recites that the ship was then lying in the harbor of Liverpool. On the part of the vessel, it provides, among other things, that tbeship !thall bring 1,000 tons of salt or (and)gunno free from Liverpool to NOl!fQl:k, to be unloaded at charterers' expense, with cllarterers' option of-BOO tous additional, at I) shillings per ton. And' in adopting, by relerence to,the sti pulations of a previous charter for another ship of thtJ same ownel',.(the O'Brien,)it stipulates, in effect, tl)atHthe vessd should Dot I\rrive at NorfQlk by the;16th of February, 1882, and "prepare for entering on-this charter," the charterers should have option of canceling the same. No other consequence in the. nature of a penalty or forfeiture is provided in the charter for the event of the ship's default in arriving at Norfolk by the 16th of February. There is also a provision that "this eharter shall commence when the vessel is ready to receive ber cargo at the place of loading, and notice thereof is given" to the charterers or their agent. On the part of the charterers, it is stipulated, among other thinp;s, that they will "furnish the said vessel a full and entire cargo of cotton or (and) other lawful
O'BRIEN ',. 1,614 BAGSOJf GUANO.
merchandise from Norfolk, and that they will pay thirty shillings pel registered ton for freight on the shipment to Liverpool." It was shown in the evidence thatt.he ship John Bryce had but recently arrived in Liverpool with a cargo when this charter-party was enteredinto; that, after unloading,' she had to be put upon a dry-dock, to repair the copper upon her bottom, which produced delay; that the ship did not set sail from Liverpool until the 18th of January, 1882; tbat the weather was bad dtinng the from which cause she was at sea 76 days; and thatahe did not arrive at Norfolk until the 4th of April, or 57 days after the time fixed in the for her being inrea:diness to ta.ke on cargo. It waS proved that the ordinary time of passage'varied from 25to50 days,'and that in leaving Liverpool,onthe 18th of January, she had but 29 days within which to make the voyage to Norfolk. It was not proved or contended that the delay of the ship in Norfolk wasowi g fault on her pan. ,lIt was proved that l the ordinary rate of freight,1from Liverpool to '. NOrfolk was 10 shillings pet tOll. ' The ship took' on 'at Liverpool1,000tonsofgUlino and 287 toris of ties.. The'billof lading for the guano recites thatthecargo wastooedelivered to theord:er of the shippers in Liverpool, or their assigriees, Utlley paying freight for the said goods at the rate of freight free, and all other' charter-party;" arid is dated at Liverpool on the7th'o'fJanuary,1882. Itappe4rsfrom the evidence that 80 shillingswllS the'mlixitilum paiR, for cotton from Norfolk to Liverpool, and that to veeselS in Liverpool less rates (29 or 28 shiUings) had hoonohtaine4last tfaU and, winter; that to vt:ssels chartered'in Norfolk freights 'were always less than when chartered in Liverpool; that during last winter'as"16Was '26 shillings had been paid to such vessels; aud that ,after the 16rhof February la3f, the charterers, respondents in this ease, 'had in no Cj:lse paid to such vessels as much as SO shillings for freights from Norfolk to Liverpool. The ship not having arri\"ed at Norfolk by the 16th of February, 1882, . the the privilege which they had reserved, and canceled the chartllr. They made tender of fourshiEings a ton as freight 'on the ties, and since the filing' of this libel hM·e deposited in the regiatiy of the court the sum of $279.26 as the net amount admitted to be due on that adcouilt, together with the costs of this prooeeding which Mdaccruedup to the time of the deposit. 'The libelant claims at the rate of five shillings per ton for the whole cargo. The respondent claims that, notwithstanding the cancellation of the charter, the libelant is still bound to deliver the guano free of freight. It is conceded that there has been no tranSfer ofthe ownership of the cargo since it was shipped, and that it is the property of the charterers. There is no pret(mse that there was any fall in the price of guano between the 16th of Febrinirj'Rnd the 4th 'bf' April, 1882. It was claimed a.nd 'proved, guanoamved toollite to be used by the truck farmers in thevicihit)i of Norfolk on thecropsof'the present year.' , The single question in this case is whether, alter canceUug'tlre(lharter
as to from Norfolk to Liyerpool, the charterers. can claim that its provision requiring the l, 000 tons of guano froql LiveI:pool to Norfolk' free still binds the ship, It is plain, will not be contested, that the inducement which led the owner of the ship to bring the guano to Norfolk free was the stipul,ation of the ch".rterers to pay the high prjce of 90 sbillings per ton fo:r the "full and entire cargo," which the ship was to receive at Norfollt,.· The charterQrs, by canceling the charter, deprived the ship of the flJ,ll cargo and the high freight, for which she came to Norfolk. The inclucement which brought the ship here being thus withheld" was she still bound to render, without compensation, the service which she hliLl1 promised in consideration of the cargo and freight? was .her bargain, then she must standbyberhargain. .But there is.llothing in the charter-party which question one way or the other. What effect, .t4en, of the caJ¥l!3Jlation of It in terms p:rovided frQJtIl ,:J,.iverpool to ,Norfolk, and thence direct to treating as an entirety the trip both ways. The .charter, in terms, provides that it is to "commence when the .vessel is ready to her cargo;at the place.of loading, an4Jlotice given the charterers," which, .in this case, as 1,287 tons of cargo were first received on !JolH'q the'ship at Liverpool, commenced at LiverpooL In this respect this charter differed from that of the ship O'Brien, to which it re, fers;, whioh, Jatter, in terms, provided only for a vOYl\ge "from Norfolk to, Liverpool." The of the O'Brien's charter, if it had been canceled, might probably with reason have beencol1strued as affecting only the voyage from this port. But the present cha:rtertreats, in terms, as one voyage, the.round trip from Liverpool back to Liverpool. So. tll,at, to cancel it in Norfolk, when it was already nearly half executed, would ha\re a different effect from that which a cancellation mighthav& had in the O'Brien case. ,This charter-party gave the right to the char. terers, in case of the ship's default, to cancel at Norfolk "the charter." It did not give the right cancela part of the charter and retain the ;rest. It did not impose any forfeiture, or penalty, or duty, or service ;on the$hip, for d.efault jnarriving act Norfolkl;ly the l6thof February, alone that it authorized the charterers to cancel. the instrument in its entirety. If the parties had intended a further forfeiture or conse· quence, they ought tohave e:Kpressed it in the instrument. When parties to an instrument take pains to insert one provision as a result of a. default, that fact excludes all implications as to other provisions. The maxim, expressio uniU8 est exclusio alteriu8, is the leading maxim in the construction of all writings, Whether contracts, deeds, or statutes. The cancellation of the charter-party was therefore an abrogation of every stipUlation it contained, whether in favor of one party to it or the other. The charterers were no longer bound to furnish a cargo, or to pay 30 shiJlings per ton of freight to the ship; and the ship was no longer bound, quoad the charterers, to. transport the guano free. The cancellation of the charter gave to the ship the right to claim freight upon the guano on the basis of quantum meruit.
O'BRIEN V. 1,614 BAGS OF GUANO.
Mention was made at bar of the expression employed in the bill of lading, holding out that the guano wassbipped "freight free, and all other conditions as per If there had been an assignment of the guano by the consignees,and, on its arrivai in port, these other bona fide owners had claimed it of the ship "freight free," a strong. t!q\litymight might have been presented in behalf of these third persons. But even they were put on their guard by the express reference to the charter in the bill of lading; and even "they could not have claimed, in contravention of the charter, release from the freight against the ship herself, however conclusive their claim may have been against the consignees, from whom they had received an assignment onhe bill oflading. As against ship could hold the even bonafide assignees 9f.the bill of lading, cargo for the freight, if entitled to hold it agaiilst the charterers; for it was butt.he other day dedded by the United States supreme court, in PoUardv. VintOn, 105 U. S. 7, that a bill oflarling differs essentially from a bill of exchange or promissory note in the hands of a third party. The court said that, notwithstanding a bill of lading "is to pass from hand to hand with or without indorsement, and is ·efficacious for its ordinary purposes in the hands of the holder, 'i,t; is not a negotiable instrument or obligation in the sense that a bill of exchange or a promissory note is. Its transfer does not preclude, as in those cases, all inquiry into, the transaction in which it originated, because it has come into the hands of persons who have innocently paid value for it. The doctrine of bonafide purchasers only applies to it in a limited sense. It is aninstrument of a twofold character, at once a receipt and a contract. In the former character it is an acknowledgment of the receipt Of property on board his vessel by the owner of the vessel; in the latter, it is a cOQtract to safely carry and deliver." See, also,Fechtenburgv. The Woodland, 104 U. S. 180; Therefore, even if there had been no reference on the face of the bill of lading, in this instance, tO,the charter-t:>rtrty; the transfer of the bill and of the property in the cargo to a third, Party by the charterers would not have defeated the rights of the ship in the cargo. It could libel the cargo in rem for the freight as long as it held custody of it;. and in case it had delivered. the cargo. to the assignee of the bill oflading, would it have lost the right to libel in rem.' Even after such delivery it would have had the right to proceed in admiralty by libel in personam against the charterers in their character as charterers in this charter-party. . . ', Ontlie whole case, I think that the libelant is entitled to recover a fair freight for the guano. The evidepce shows that that would have been ten shillings per ton. In a spirit of compromise, he claims' only five shillings, an(l that amount will be decreed. Under the charter, the <lharterers stipulated that the unloading in Norfolk should be their own expense. Their claim in their answer of the right to' deduct this expense is negatived by their own stipulation. Aside from this agree.ment, however, I think a freight of fh'e shillings per ton, net, should be .allowed the libelant. and I will so decree. 1 ha.rdly· need toa.dd that, if the charterers' have experienced any loss
from the late ar1'iv:al of the gllano whic1;l was brought by this ship, their damages canQot.be the subject of a set-off in this proceediJ% but be sued for in another proceeding, if sued for at all. Set-off lsa' statu· tory right, unknown to except as a credit on the particular transaction which is the subjeot of the libel.
THE NANNIE LA:MB1l:RTON.
NEI4loN ". ",';.
MAJESTIC . , THE NANNIE LAMBERTON. . . . AND ,',
, .(Otr,euttoourlco! AS/peatB, Second C'£rcUit. DE'cember 14, 18111.)
1. SBIPl'IN...::hroRYBl' SWEt.LJ'ROM ST£AH"SHIP.
An passing up New York bay, ",hen near 13edlQe's island overtook ana JlBBsed a tug with a heavilY laden Oanal"boat lashed on eithe1'8ide. A dia. placement wave produoedby the steam"ship, three feet or more high, struck the threw her with such forC,e against one of her tows as to break in the side of the tow. The steam-ship'. oflicers tE>sti1led that she passed the tup; half a mile to the weatward, and that her speed had been 11 or 12 knots an hour, but was reducet'l; to, 7 knots at a point below Bedloe's island. The weather was fine, and the bay'sInooth, 'and there was nothing to render navigation of the bay by the tug and her tOW's on that day imprudent. Beld, that the steam"ship was liable for the int0l"', apd that it was no defense that her displacement waves did not render navlgatlOn 1n the bay more perilous for tugs and tows than would a high , Wind, nor tl:iat she was navigating at a speed customarily adopted by vessels of her , class. 44, Fed. Rep. 813, aflirmed in part. The tug was not in fault for failure to turn the stern of her tows directly to the the WiW&, .she being the overtaken vessel,and her master haVing the right to as. Bume that the would take proper steps to avoid diSaster; and this, the master saw the wave some little time before it struck, as he might reasonably espeeta decrease in the wave before it would reaoh 11ia vessel «Fed. Rep. 813, reversed in part.
.. &ME-DoTIEs ,Oil' OVERTAKEN' Toa-ToWAGE. '
In Admil'a1ty. Appeal from the circuit court of the Uniterl States for the southern district of, :Ne:w York. Libel against the steam-ship Majestic and the steam·tug :Narinie Lamberton for .to thtl canal-boat Emma while in tow of the tug. Decree against the claimants o(both vessels. Both appeal. Decree. affirmed as to the Majestic, but reversed as to the Nan· nie LambertoIl. . ' Ge(Yf'ge De Fcrrest Lord, for the Majestic. Edward}). ;McCarthy, fpr the Nannie Lamberton. Josiah A. Hyland, for libelant. ' Before WALLACE and LACOMBE, Circuit Judges. LACOMBE, Circuit Judge. By the decree of the district court for the southern district of New York, damages were awarded in favor of the libelants against both .claimants, for injuries sustained by the canal·boat