(IXBtrlct Court, S. D. NewYor1c. February 1,1892.)
"REPORT AT CUSTOM-HoUSllI" Don XOT INOLtrnB RIGJI'l' oro SHIP'S!NWA.BD BUSINESS. , '
A clause of a cliarter providing that ,the vessel is to be "reported at the oustomhouse" b.ttheoharterers:or their appointee does not give the charterers the right to do the inWard business of the s1).ip·
,BUSINESS" OJ' SHIP--SU1'BMENT OJ' CUB,'
A charter provided that the vessel should be reportel,l at the oustom·house by the charterers or their appointee, or pay £20 liqUidated damages·. Tb.e master reported to the C!:lartererson the da,1f of arrival! bllt, the latter and their a\>p,ointee declined to enter the sliip unlesstlIey should De allowed to do the ship's- Inward business, , ',WhiCh the, ship refused,,' o,n libelllled b"the S,hip""owner, to reco,v,er freight, cha,r, .' ,terers to deduct the £20. tbat the right to do the inward of the ship eoutd not be allowed the charterer unless plainly indicated in the char, tar, and that the phrase "to report at the include the ling of suc:lJ.lnward business; hence tlieship. in reporting to the charterers, had fulfilled her part of tbe charter, and the charterers could not be permitted to deduct the £20 from the' freight;
In Admiralty. ,Libels in per8O'flllm by Andrea Mignano. and others against Robert MacAndrews and others. and GaspareCalifano and 'others against the same,torecover a balance of charter hire oftwoveseels. Decree for libelants. . Wing, Shoudy & Putnam, for Wilcoz, Adamset Green, for respondents.
BROWN, District Judge. In June, 1891, two vessels of 506 and 607 tons respectively were chartered by the owners to the respondents, at Smyrna for a voyage thence to New York. Both charter"parties were in the same form,the concluding paragraph of whioh provided that the .vessels were "to be reported at the custom-house by MacAndr.ews & Forbes, 55 Water street, or:their appointee, or pay £20 liquidated damages." The vessels were lOaded with the charterers'own goods, and bills of lading iS8uedfor cargo deliverable to,themselves at New York. As .the respondents did not do shipping business themselves, they appointed, John C. Seager,a ship-broker, to attend to this business. On the day of arrival, the master of each vessel reported to Funch, Edye & Co.,. Who had long acted as agents of the owners in this city, and who were .understood to be the consignees of the ship. Their clerk at once went, with the masters to confer with Mr. Seager in reference to reporting,the vessel, and on the same afternoon ancLthe next morning they had severalcon\'<lrsations with Mr. Seager and with Mr. Cuthbertson, oneoHh& respondeutB'firmt the result of which was that Mr. Seager, under re<3pondentB'direction, refused· to enter. the vessel at the custom-house, either upon the ordinary custom-house brokerage fee of three dollars. or upon the compensation of five cents per ton, unless he was also to. have what is called "the inward business of the shiPi" that.is to say"
the collecting of the freights and any other business in connection with the inward voyage. The nominal charge for doing such inward business is five cents per ton; though sometimes the master collects the bills, and sometimes this nominal charge of five cents per ton is remitted. .The reason why the inward business is desired by the ship-broker is, that it practically secures to him the chartering and fitting of the ship for the outward upon which there is a much more substantial and more profitable compensation. The evidence leaves no doubt that the respondents and Mr. Seager were unwilling to enter the ship, and at the same time to allow Funch, Edye & Co. to do the ship's inward business; and that the former refused to report the ship at the custom-house upon euch conditions. Ships are required to report within 48 hours after arrival. Mter the above refusals, the ships' captains, accompanied by a clerk of Funch, Edye & Co., went to the custom-house. and, selecting a broker, had the ships reported and entered at the custom-house in the names of the respondents; and on the following day they received from the latter a "hauling order," that iS,an order where to go ·to discharge the cargoes, under whiclr the vessels were discharged. Upon a demalld for the freight provided by the charter, the respondents. claimed to deduct the £20 liquidated damages, which the libelants refufled to allow·. The above libels were thereupon filed, and the amount of freight less those sums has been deposited in the registry of the court. . In the case of Gallo v. MacAndrew8, 29 Fed. Rep. 715, this court SU5!tained a clahn to a similar amount of £20 as liquidated damages, as a reasonable provision against the inconvenience and' losseswhi9hthe 'charterer might sttstain in his business through a failure to report the ship promptly at the custom-hlmse. In that case, there was no at-tempt by the \ressel to comply with the stipulation. The mas.ter ported to his own ship-brokers, by whom the vessel was entered,and no report was made to the charterers till the following day. In· the 'present cases, the masters reported with reasonablepromptnesa to the -charterers on the day oJ arrival; and the only reason wl}y the entry in the custom-house was not made by the charterers' appointee WaS, as above stated, because he claimed to annex additional conditions, to which .the masters refused their assent. . The present cases turn wholly on the question whether these conditions, namely, the right to charge five cents per ton and to do the inward business of the ship, could be properly demanded by the charterers under the provision of the charter above quoted. On this point my opinion is adverse to the respondents. There is no ambiguity in the phrase" to report at the custom-house;" it is equivalent to the words "to be entered at the custom·house." Both import an ordinary and familiar act required of the vessel by the Revised Statutes, and by practical necessity done through the action of some custom-house broker. For this simple act, three dollars is the ordinary fee.. There is nO ambiguity in the words or the phrase used. The evidence does not show any ambiguity, nor any fixed. custom or practice in business, either general, or brought home to the kno,wIedge
of:theship-owners, which could add to the phraseao important a clause a$"doit1g "the inward business of the ship." The evidence shows on the contrary that upon charters of precisely the slime form as the present the practice has long been for the,vessels to be entered by the consignee of the ship, and not by the brokers named, and upon no other expression of assent thereto than the signing of a mere" hauling order," telling where the ship should discharge. Mr. Seager's testimony is wholly insufficient to establish the usage alleged, even if in any view competent to change so greatly the meaning of a written instrument. If the charterers of the ship were to do its inward business, they would be inetrect consignees of the ship at this port. This involves a fiduciary relation of great importance between' them and the owners. They virtually control all claims in favor of the ship-owner, collect and hold all funds on her account, and adj ust and setUe all dispu tes. Presnmptively,the charterers who load the ship themselves, whose goods are brought in the ship, and in whosetiwor any counter-claims for damages upon any dispute with the captain would arise, would be the last persons who should be appointed to represent the owners in such relations; since the charterers would thereby be acting in a double and opposite capacity, in which the owners would be deprived of all the ordinary securities for the enforcement of their rights. The present charter also provided that the "report to the customhouse" might be made by the charterers, or by "their appointees." There is nothing which makes the charterers answerable for the responsibility of such appointees. This would ,be very harmless as respects the act of reporting at the custom-house, which in itself is an insignificant matter, though promptness in it may be very important to the the stipulation for the small sum of £20 damages if neglected. There' is no reason why such an act might not be done by anyone whom the charterers. should appoint. But to enable the charterers, withoutrespollsibility of their own, to appoint persons unknown to the owner to collect and handle the ship's funds, is a power that, if not expressly conferred, should not be upheld by mere presumption, except upon the plainest, necessity or very plain implication. In ,the present case there is nothing in the language of the charter importingany such added powers, and the previous course of business between the parties forbids the supposition of any such intention by the owners. An additional circumstance against the construction contended ,for is the fact that these $lharters were on blanks of the respondents'own forms, prepared presumptively by themselves; and they are, therefore, .Dot to be taken as giving important powers not expressed. Other char· t.en!l'executed between the respondents and other parties before this con·troversy arose, contain an express .stipulation for doing the inward business.This is evidence of the practice of the defendants themselves in accordance with the legal presumption, viz., to provide expressly for , the inward business where that is intended. I cannot hold such a charter as the present to be of the same, force, without such a stipulation, as with it. Decrees for the libelants for the full amount of freight, and costs.
etal. et ale
et al. v.
(l>tstrlct Court, S. D. Ne'W York. Febrnary 9, 1892.)
C1t!JtTllJt-PARTT-VESSEL OUTSIDE CHARTER LJMITS-MASTER, CHARTERll:R'S AGBN'l'. HEALTH LAWS-CHARTERER'S DiTTY TO PROCURE CLEAN BILL OF HEALTH.
The charterer of a vessel, running uodera time charter from the river Platte to the United States or the United Kingdom or Europe, made. a subcllarter, which provided that thl'l ship should go outside her charter limits,and take a cargo from Progresso, Mexico. Tile charter provided that the master, though appointed by the owner, should be under the orders of Tbe shipwentfrom Buenos Ayres, an infected port, to Progresso, where the 'health officer refused her admittance. The ship then went to Key West, where the master telegraphed the charterer that he could not return to Progresso without a clean bill of health from some other place. The vessel on same day was put in quarantine at Key West for 80 days. After SOine further telegrams, the charterer ordered the ship to return to Progresso immediately. After the vessel was ready for sea, with steam up and anchor chain Short, tile charterer telegraphed to have the papers vtseed 6y the Spanish oonsul, to whioh the master replied. "Too late" and went to P.rogresso, where he was again refused admitta11.ce, and, after much consequent delay. the oharter was terminated. The charterers declined to pay the charter hire, averring 1;hat they had suffered damage by reason of the master'.s failure to obtain the 'Vist, and, on being sued for the charter money, brought a cross-suit to recover such damages. Beld, that the owners were under no obligation to o·btain clean health papers for Progr8sso, since they never authorized the ship to go there; that the master was the charterer's agent in respect thereto; and that the master's defaUlts, if any, did not become the faults of the owners. And, it appearing also that the final refusal to permit the ship to enter at Progresso was not due to the lack of the but because she came from an infected port, and without a clean bill of health, for which the owners were not responsible, held, that the charterer's claim of should be dismissed, and the ship recover her charter money.
In Anmiralty. Libel by Richard S. Donkin et ale against Robert Herbst and others to recover charter hire of the steamer Shadwan, and cross-libel by respondents against libelants for damages in failing to obey charterer's orders. Decree for libelants. Butler, Stillman & Huhbard and Mr. Mynderu, for R. S. Donkin. Owen, Gray k Sturges, for Robert Herbst. BROWN, District Judge. The original libel was filed to recover the charter hire of the British steamer Shadwan, which was chartered to the defendant Robert Herbst, under a time charter from December 8, 1886, to run within specified limits, from "New York to port or ports in the river Platte and back to port or ports in the United States, or in the United Kingdom, and in the continent of Europe between Bordeaux and Hamburg." As a counter-claim the answer and cross-libel set up tt small item of damage through the misdelivery of a part of the cargo at Buenos Ayres and Montevideo, and a much larger claim for damages from alleged disobedience by the master of the charterer's orders in leaving Key West for Progresso without proper papers to entitle the vessel to enter the latter port, in consequence of which a great deal of time was lost, and the