.. ':MY··90Dsidetationofitbe. whole, case·britigsme ,to, conclusion that thebreaksgeofJthejunkringwaaaIit aocident nQtattrihutable to th(\ failure of,theownel'8 to, maintain the efficiency of the ID/lcbinery, and that. they areJ Bntiiled to recover the hire of the steamer without deduction. fofj:the dawa.getQ the cargo. iJ j' nr1:1'
THE 'QUE;ENSMORE. THEQUEENSMORE fl. MYERS fit
,; " i
On a voyage frqm Baltimore to Liverpool fire broke out in the cotton cargo of theIteamship QueElDsmore', aDd, in consequenCe' respondents', cattle were suffocated or 'brown AfteJ;v.a,rds andl.striking on a rock on the coast of Ireland, was lost. ",The freight by the bill of 1aamg was expressed to, be,. pai"d by the ShiPP,er"",S,hiP"loat", or not lost." ,By the,prelimioary live stock freigpt ,contract, it was eXP.-e.sed to be paid ,on tbe number of animals , Ihi!iped, whether delivered' allve or not delivered at aU, payable in Liverpool on the 'arrival'of' tbe ,ship. 'Held,that the ',bill of lading was the fln," agreement of the par,ties, and by It tJ1.e ,freight was payable, notwithstanding the loss of the ship and ber ·llonarrivll.1at1.verpool. " ' ,"
ll. 'BAMe-4::oNBTRtiCTION opll'RillGlIT CONTRA-CT. , Held, pr: the liVA stocl,!: :freight
was merely to waive prepayment of ,the freight at Baltimore, aDd not to make tbe freight depend Oil the contiIigeOO1'ofthe ship's arrival at Liverpool. . (SUUalm, btl th6 Court.)
In Admiralty. Libel t9recover freight. Bruum cfc Bru,'(lf, for Thomas W. Baa" for respondents.
Deoree for libelants.
MORRIs, ·. ,This is a libel on behalf of the owners of the BtAADj1ship Q\1eem/more to.recQver ireight at the rate of 80 shillings abel!.o, on of cattle shipped at Baltimore by the rato to 'the steamship sailed from Baltimore Octqber 27, with the cattle on board, and with a general ClII:fgq,consisting in a great part of compressed cotton. During the voy&.ge, without fault on the part of the owners of the steamship or th:>se in charge of her,fire broke out in the cotton; and, notwithstanding heroic efforts on the oUhemaster, officers, and crew of the steamship to extinguish the fire and sa.".e the cattle, the fire continued.and increased for five days, duringwhicp nearly 0)1. the cattle were suffocated or necessarily thrown ,?verboara"only eight ten in the ,extreme bow remaining. On the after the fhe was dis90vered the ship became unmanageaple,.and in a dense fog struck arpelt0n the aouthwest coast of Ireland,a,wJ becamea!o.tal.wreck. The, master, oflicers,ann men suffered barely escaped with their lives. The libelantsc:;laim pnthe cattle under the terms of the bill of lading given for the freight is made payable, "ship lost or not lost."
The respondents contend that by the live stock freight contract the freight was payable only in the event of the ship reaching Liverpool, and that the live stock freight contract, and not the bill of lading, expresses the agreement between the .shippers and shipowners as to .the payment of the freight. The live stock freight contract is quite similar to those mentioned in The Enrique. 7 Fed. Rep. 490; The Oranmore, 24 Fed. Rep. 922; and The Caledonia, 43 Fed. Rep. 681. It is dated July 1889, and by it the respondents agreed to ship by the steamel:'S of the Johnson line, sailing from Baltimore to Liverpool, between the 1st and 31stoi' October, 1889, two thirds as many cattle as the steamers could ea,rry on their two upper decks. The provisions material to this controversy are us follows; "(6) * * * .And also free from all responsibility for mortality or accident of any kind to said cattle, or any of them; and if any of thelD die. or are thrown overooard, or are washed overboard. or arH lost in any wanner whatsoever. the freight is' nevertheless to be paid, and is hereby guarantied to be paid, by the shippers. " "(13) 'rhe freight is payable npon said cattle at the rate of eighty shillings British sterling per head on the number shipped at Baltimore, whether delivered alive or not deli vered at all, and is payable in Lt've1'pool on the arrtval of the steamships." When this shipment of cattle was put aboard the Queensmore, two bills of lading were given and accepted, the material parts of which are as follows: "Shippl'd alive by Myers & Housl'man, under and suhject to the condi. tions, stipulations, and provisions set forth in a contract in writing between Myers &; Houspman, and Patterson. Ramsay & Co., datpd the 12th day of July, 1889, for the shipment of the cattle hereinafter mentioned, which is hereby made a part hereof, * * * 517 head of eattle. and the said animals, subject to the stipulations and exceptions hereinafter and before mentioned, are to be delivered from steamer's deck, where the steamer's shall cease, at the aforesaid port of Liverpool or at Birkenhead. unto order, or to his or their assigns. Freight payable by consignee at the rate of eighty shil. lings per head. * * * Freight is payable, ship lost 01' not lost, upon the number of animals embarked, without regard to and irrespective of the number landed; and the shipper hereby guaranties payment of such freight, if not paid by consignees. " The terms of the bill of lading are express that the shipper guaranties the payment of the freight, "ship lost or not lost," upon the number of animals embarked; and, unless this language is controlled by an inconsistent agreement in the live stock freight contract. the right of the libelants to recover the freight is clear. It has been held in The Enrique, 7 Fed. Rep. 490, and in The Oaledonia, 43 Fed. Rep. 681, that the live stock freight contract is the preliminary agreement which the nature of the cattle shipping business requires the parties shall enter into before the cattle are collected and brought to the port of shipment; but that it is not intended to be the final agreement under which the sea carriage is actually undertaken, and which is uSllally to be found in the bill of lading. The preliminary agreement is usually made with the general agents of the owners for space on certain steamships. The bill of lading
FEDERAL REPORTER, vol. 51.
is a special contract with a particular steamship, binding the ship 'as wen as her owners. , In cattle. shipments the freight is customarily required to be paid in advance, ,and looking to the agreement in this live stock freight contract that the freight was to be payable on the number shipped in Baltimore, although all the cattle died or were in any manner lost on the voyage, the fixing of the time and place of payment at Liverpool, on the ship's arrival,. may very properly be taken as intended, in effect, merely as a waiver of. the, prepayment in Baltimore. That it was intended merely as a, postponement of the time of payment is consistent with all the other provisions of the contract, while to hold that it was intended to make the payment depend on the ship's arrival in Liverpool is to make the paymenVdepend upon a contingency ,as meaningless as a mere wager, for as freight was stipulated to be paid on the number put on board, altho'1ghno cattle arrived, the arrival of the ship, if the cattle were all lost on the voyage, in no way concerned the shipper. Thisjnterpretation of.the live stock freight contract is confirmed and made certain by the bill oflading, which, having only to deal with the transaction after the cattle were received on board, stipulates for payment by the consiWlees, and contains an express guaranty of payment of the freight by the shipper, "ship lost or not lost." For five or six years before this particular shipment these respondents had been shipping cattle by this same line of steamers under similar live stock freight coptracts, and accepting bills of lading containing the same stipulation as to payment of freight. It is quite ,clear that the real intention and agreement of the parties was that the, freight was payable if the cattl& were received on board, and not lost through the fault of the ship, and that the arrival of the ship at Liverpool was never intended as a condition of payment. I hold, therefore, not only that the bills of lading are the final and controlling agreement of the parties, but that there is nothing necessarily inconsistent between the live stock freight contract and the bills ofladingin respect to the payment of the freight.
THE RELIEF. THE ALEXANDER ELDER. EDWARDS v. THE ALEXANDER ELDER.
(Dist'fdct Oourt, n. Maryood. JUly 2, 1892.)
SALVAGE-PILOT BOAT-PUBLIC POLICy-COMPENSATION.
The British steamship Alexander Elder, worth $225,000, with oargo and freight worth as muoh more,went ashore near Cape Henry light, while in oharge of a Mar.vland pHOt, under oiroumstances wllich indicated that it was the fault of the pilot. The Virginia steam pilot boat Relief, which was attending to take off the pilot, rendered salvage service in pulling the steamship afloat.. Held, that it was