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
FEDERAL REPORTER,: VDI.
loading of cargo at Progresso under a suhcharter prevented, to the further great damage of the charterer. . The facts bearing upon the counterclaim, and the defense to it, run into much complication of detail; but after a careful examination the. view that Lta.ke ,oLthe case does not require any extended mention of the particulars to make intelligible the gronnds of my decision. . The whole trouble grew primarily out of the charterer's diversion of the ship from the charter Hmits by a subcharter executed by him to Thebaud Bros., which provided that the steamer should go to Progresso, Mexico, for a cargo. Progresso was outside of the charter limits. The vessel went thither from Buenos Ayres, an infected port, and was· refused admittance by the board of health. She then wentto Key West, whence. after much correspondence with the charterer in New York by telegram and by letters, and .after coaling, she went again to Prog-resso, and was again positively refused admittance. Thereupon the charter was terminated, and these suits instituted between the parties. The particular order which the master is charged with disobeying to the master at Key was cOlltained in a telegram from the West on the 28th of Mar-ch, 1887, which directed the master, in the absence of any Mexican consul at Key West, to get the ship's papers by the Spanish consul there. At that time the ship had already cleared forProgresso and was getting under way; and the master telegraphed in reply: "Shadwan sailed. Last dispatch too late. Papers right." . Under all the circumstances of the case as disclosed in the correspondence, I am of the opinion that the mll;ster's failure to' try to get his papers viseed by the Spanish consul does not make the owners answerable for the subsequent refusal of an entrance p8rmit at Progresso, nor fur loss Of freight under the subcharter. The circumstances show that the. niaster was but little, if at all, to blame for not seeking to get the iMeof the Spanish consul at Key weSt; that there is little, if any,possibility that such a: vise would have made any difference in the result; and thaHhe R1Rster, as regards what he did or omitted to do in reference to getting- clean papers for Progresso, WIlS the agent of the charterers only, and not the agent of the owners of the ship, who had never authdrized him togo to Progresso, and took.bone of the risks of the ship's having proper papers for entrance there. The· master had arrived at Key West from Progresso on the 12th of March, 1887. On the 13th he telegraphed to Mr. Herbst, the charterer, that he could not return to Progresso for 13 days; and in a letter of the 14th he wrote that he had omitted to say that the officers said he might" return in 13 days, if we get clean bill of health from some other place %n the mean time." The vessel on the same day was put in quarantine at'Key West for 30 days; and on the same day Herbst replied-HObt8in clean papers f-or Progresso quick as possible. Reportthere again, and persevere." On the 16th the master telegraphed that he could not get clean bill of health at Key West, but would try a substitute; and on tbe same day wrote tbat it was impossible to obtain a clean bill of healtb.
because the health-officer refused to give it; but that they would fumigate and give a strong ,certificate as a substitute, which, it ¥vas hoped, would prove sufficient as a constructive pratique. The charterer on the same day telegraphed the master: "Hold you responsible under all circumstances. Advise putting yourself as quick as possible in same possition as when arrived there." On tlie 18th the master telegraphed: "When coaled will proceed according your instruction, but fear more detention there u'YIless clean pnpers from here." On the next day, the 19th, Mr. Herbst telegraphed themaster: "Coal and proceed immediately Progresso. Persist in reporting there." Mr. Philbrick on the same day wrote to Mr. Herbst in full to the same effect as the master's letter of the 18th; and Mr. Philbrick's letter was received by the charterer on March 23d. On the 25th of March the charterer urged immediate sailing, and ently complained to Mr. Barber here, that he "had not authorized the Ship to,wait for clean papers." The ship having obtained coals in quarantine from Mr. Philbrick after considerable delay, caused by the charterer's interference with the master's first efforts to coal speedily. it was arranged that the Shadwan should sail on the 29th, after receiving the custom-house documents and bill of health. The yessel was then in the roads with steam up, anchor chain shortened, and ready to get under way. Mr. Philbrick's clerk had brought the clearance papers on board; and with them a telegram from MT. ,Herbst directing the master to have the papers viseed by the Spanish consul; to which the master replied, as above stated, "Too late, ship sailed." The master had been at no time able, to communicate directly, with persons on shore; he could only do so through others. The charterer had not expressly appointed any agents for the ship there, but he had beep; corresponding with Mr. Philbrick in reference to coals, and knew of, his efforts, in behalf of the ship and of the master; and the charterer Eluggested no other way to transact shore business than through Mr. Philbrick. The clerk of Philbrick assured the master that the tificate in regard to the vessel's bill of health in its existing form, was such as they, used with their own ships and in the usual form, and was sufficient, there being no Mexican consul at Key West. The master relied on this ,assurance, and answered, "Papers right.'" If under the circumstances Mr. Philbrick was, not by recognition and adoption the charterer's agent and representative for the ship's departure and getting proper papers for admission toProgresso, then the charterer had no agent for that purpose at all, except the master, who thus became himself the charterer's agent for that purpose. The charterer had been repeatedly informed that the vessel was in quarantine, at a distance from shore, and that the captain was not allowed to go ashore in person. He could do nothing. The charter, moreover, provided expressly "that the captain, although appointed by the owners, shall be under the orders and directions of the charterer, as regards em;ployment, agency, or other arrangements." This stipulation bound the master to observe any such arrangement as might be made by the charterer's agents or representatives; and by necessary implication it also
bound.'ihecharterer to agencies' 88 necessary for guidance and aid where: he could not act ,personally. In undertakingdto send the ship to ports outside of the ohartet" limits, it was ,thecbai'terer's business, not tbe :owners' brlsinesa, to get suitable papers, and the petsons employed in doinK that business were the charterer'gagents, whether the master(jr other persons. Arid considering that the ship's inshore business hail been conducted by Mr. Philbrick for more than two weeks before the ship sailed; and that the charterer khew of this fact by the varioustelegrams and letters, I think the captain was fUlly justified in regarding Mr;Philbrick as the representative of the charterer there, and justified under the circumstances in acting upon Mr. Philbrick'sadvioo, ratherthanto delay sailing and to incur new complicatitms which would have been likely to arise, by remaining longer at Key West after having cleared and teceived her clearance papers. In diverting theship to ports not allowed by the charter,:tha charterer took all risks !0f'i:l6curing totha ship the proper entrance permits, and is not entitled to charge any' error of the master in that respect, if there was any, tipon'the owners, or against the stipulated charter hire. The owners no duty to obtain papers for Progresso, since they never authorized the ship to go there; and the master's defaults if any in det\ling with the charterer in that regard, did not become the defaults of the o\vners. ' Aside from the above considerations, I am by no means satisfied that is attribthe subsequent refusal of entry of the Shadwan at utable to the failure to obtain the 'lYis6 of the Spanish consul at Key West.:.Itis possible that ifthe matter had remained subject to the action (jf the local health board at Pl'ogressO' alone, the substitute for a clean bill Of health might have been accepted by the local authorities. The evidence of Aguirre upon the trial gives this some support; but the different statements of this witness at different times on this subject, and his frequent statement on the hearing that the ship must have proper papers to get a "free pratique," satisfy me that the ship would not have been legally entitled to entry, whether the doctor might or might not have overlooked the radical defects in her papers. But in truth the matter was taken wholly out of the authority of the local health board at by the action of the National Marine Board, whose order was positive that the vessel should not be admitted. The evident intention ()f this was not that the vessel should be forever excluded, but that entry should not be permitted 'from Buenos Ayres, an infected port; nor until the ship obtained a clean bill of health frOm some other port. This is precisely what the master wrote the charterer on March 14th that he had been told by the officers on her first exclusion from Progresso. There is nothing in the testimony that satisfies me that there was any hope that the order of the National Marine Board would be rescinded, except upon the procurement of thoroughly clean papers. The papers which the Shadwan took to Progresso the second time, even had they been viseed by the Spanish consul at Key West, were not clean papers. On the contrary they expressly stated that the ship had come from Buenos
THE LIME ROCIt.
Ayres, an infected port, and it was not stated that she had passed quarantine. Here was express written notice of her still continuing liability to spread contagious disease. The of the Spanish consul could not in the slightest degtee have the essential.cbaracter.of this certificate, or given it the effect of a clean bill of health. Key West, moreover, was but 36 hours distant by steamer from Progresso. Three or four days, therefore, would have been sufficient to obtain the had that been all that was necessary to enable the ship to enter at Progresso. She remained atProgresso for 26 days, and during this time the charterer's agents there were in .correspondence with, the master and the local and national board of health. No suggestion was made by any of them that the by the Spanish consul at Key West would remove the objection to her entrY,or be of any use. Tlie master testifies that no objection to the lack of a consularM was ever made; but that the objection was that she had come from Buenos Ayres, an infected port, as her Key West papers stated. I am satisfied this is the truth, and that theabselilce of the was not the real objection to her entry, bnt the fact of her infectious character, and because she had not obtained, and had not been willing to wait in quarantine at Key West long enough to obtain, aeIean bill of health. For this the charterer was directly responsible. For the small item of damage through the misdelivery or miscarriage of goods, the vessel is liable, no sufficient ground being shown to absolve her from- that risk. If the amount of that item is not agreed on, a ref. erence may be taken to ascertain it. The other claims are dismissed. Decrees may be drawn accordingly.
SAUL. L. MOORE
t1. ,THE LIME RoCIt. .
& SONS Co.
Oourt, D. New :TerBey. February 24, 1892.)
JlARITnDIl LIENs--RBPAms-AUTHORITY 01' CHARTERBR.
881. and thus to become the owner for the voyage, pro hac mce, must be presumed to consent that,the vessel shall be liable for all repairs necessary to enable her to
pursue the vo;vage, and that the special owner may bind the vessel for this purpose.
SAMB-ADVANOEMENTS AT OWNER'S RBQUBST.
An .owner who allows another to have full possession and management of aves-
A third person, who, at the owner's request, pays for necessary repairs upon a vessel, is entitled to a lien for repayment. A maritime lien for repairs is in the nature of a proprietary right, and 18 Dot lost by merely delivering the vessel to the owner before payment.
SAME-WAIVER-DELIVERY OJ!' VESSEL.
.. BAME-W AIVER_EvIDBNOE.
Repairs made upon a foreign vessel were admittedly necessary to enable her to prosecute bervoyalr8. The owner was not a resident of the state, and in making the contract stated that he was then without funds to pay for the repairs. The ve8881 WM to be delivered to him on completlon, and he was to pay haif the bill SO clayathereafter, and the remainder as the vessel earned the money. The vessel