: :' ;:
, .' .
(Dtstr'l'CtCourt,D. MarylWnd. June 18, 18119.:
usage in the port of by In case of Jettison, of lumber carried on deck, the vessel and freight are exfrom contribl1tingill general average, (Siillimmby the Oourt.) !,
'. lie/q" tbatthere is
,in Admiralty. Libel for contribution in of'decldoad of lumber;' Decree forcontriLulion. Brown &; Brune, for libelants. Rohm H.'Smith, for cllUmllnts.
a"erage of jettison
MORtU8. District J \ldg!'l. This s,uit ie brought by the owner of a deck loadofrlnmber shipped:Qn the schooner John H. Cannon, 200 tons, to recover from the vessel a contribution in general average on account of the jettison of part of the deck load for the benefit of the vessel and the resto(th(ilQargo. chartered the schooner to carry a cargo of lumber from South Carolina to Baltimore,and she received on board from hirn574,050 shingles, and 35,147 feet oflumber, of which, as stated in oflnding,about 179.950 of the shingles were to be carried on deck; , is a, genernl ueage of the lumber shipping trade betWeen Baltinlore southt:rn ports to carry part of the cargo on deck,Rnd that in this ea,se the deck cargo was lawfully carried there, both by the usage and by the express agreement of the parties contained in thebi1ldf lading and the charter party. By stress of weather thE} schoonehvusdriven into Hatteras inlet,where she grounded, and it became necessary to jettisontbe' deck cargo,in order to lighten the ship, and save het ,and the rest of the cargo. It that.it is the general Rnd uniform usage of all vessels in the luinbertrade between Baltimore and southern ports to carry a portion schoonerwae built with a of their luniber cargo on deck, and that view to that usage, and cou'ld not be' profitably em ployed in that trade unless she carried a considerable deck load. On behalf of the schooner His nvtdenied thatordinilrily, whenever there is anesta blished usage on any claseoi' vessels to carry cargo on deck, the vessel in and freight are liable to contribute in geneml average if sU'eh deck cargoisjettisoned; but the defense to this libel is put solely upon the contention stated in the answer, that "it isa well-established, unLorm, general, and notorious custom in the lumber trade in the port of Baltimore that in no case does the vessel or freight contrihute in general average where the in deck load is jettisoned; and that the libelant, being largely
THE JOHN H. CANNON.
port ofBalthnore,' was familiat with the usage, and with tne schooner with knowlfidge of the custom;" , ' Inhere be such a localusagein the pdrt of Baltimore, it is contrary to the general cOtnmercial law as in many, and I thitlk most,other ports. In Lowndes on GEmetal Average,(page 62,) it is
uThe law of deck-load jettison may be summed up as follows: A jettison of goods, carried on is not made good by contribution, except where there is a general custom of the trade in a particular voyage to carry such loads. Such a custom there is with regard to the lumber trade 'from the Baltic anti British North America."
See,al'so, Gould v. OlitJe1', 4 Bing. N.'C. 134j'Johnson V. Ohapman, 115 E. C. L. 582j Milward v. Hibbert, 3 Q. B. 120; Burton v. English, 12 Q. B. Div. 218j The William Gillum, 2 Low. 154j The Watchful, 1 Brown; Adm. 469j Woody. Insurance 00., 8 Fed. Rep. 27; Hazelton v. Insurance Co., 12 Fed. Rep. 159. , The sole question is whether there has been proved such an exception to the .rule by a local custom of the port of Baltimore as exempts the schooner inthepresent case. The testhnonyadduced is not satisfactory· It ,appears.lhat there .has been within the e*perience of those familiar with the lumber tradeln the port of Baltimore very few instances where the deck load has been jettisoned. In most instances; where the deck load has been lost, itdhas been reported as washed overboardby the sea, and very seldom as jettisoned.· There is no witness called who can remember an instance in which the question has been mooted,imd the alleged usage applied to decide it. Mr.Cunninghairi, an experienced adjuster, member of a long-established firm in business, is the principal witness, and he states that he thinks it is the usage, because he hasl).o recollection of ever having made such an allowance in adjusting such a loss, and does not temember of hearing of such an allowance in the port of Baltimore. The other witnesses have no knowledge of any instance in which a loss of this class has been the subject of adjustment, and speak of the usage very much from what they have heard from Mr. Cunningham. The burden of proving the usage rests upon the respondents, and the testimony falls short of the proof required to establish a local usage which is contrary to the general principles of commercial law. The right to contribution in general average is a broad principle of equity, firmly fixed in the law merchant, and as far as possible its application should be governed by principle, and not depend on local usages. As to the usages of average adjusters, which do not contravene any general principles of law, but merely regulate the details of their application,-as, for instance, what particular expenditures are to be allowed, what commissions for collecting, how much for difference in value between new and old materials, how values are to be arrived at, what discounts are allowed, and usages as to 'similar matters which are constantly passed upon in stating an average adjustment, -it requires much less evidence to support a usage than to prove
now (leclared. and that pills of lading will also be framed in accordance with , it." ,,' .
a l()cal usage opposed to the principles of tge general law. In the present case it would seeD} that what is spoken of as a usage was, in fact, rather"tbe prevailing belief among underwriters and adjusters in BaltimOre that the general law did uot recognize the right to contribution for jettisonof a deck carg() oflumber. It was rather a local understanding of the general law a local usage of trade, the' cases being so few and infrequent that no could be said to be established by them. In Sle!J?adv; Steamship (Jo" L. R. 8 Q. B. 88, 362, by the bill of lading it wa!lstipulated that" average, if any, should be adjusted according to British:custOm." By "British custom," as it had long existed, and was to .be found stated in many published text-books on general average, damage,tj> goods bywaterrthrown to extinguish fire in an adjoining hold or wmpll:rtmentof the ship :was not allowed for in general average. This long-ellitablished Britisq having, by express stipulation of the partiell,:been made part of the contract of affreightment, the court was obliged to apply it, although contrary to the principles of ing igen9ral average contripution. Tbe court, however, intimated that the prac,tice was vicious'l/-Pll unreasonable, and said: ." i".t9OO hoped in th,e futl1reth\\t will be no difference between law on tbispoint, llonq thatavera,ge ,lldjusters will act on the law and
it is endeavored, as by the ship owners inthis case, to fa,stlln /In exception upon the general by setting up a local usage. In lUy judgment, the proofin the presentcase is insufficient. The underdeck cargo in the present case belonged to the Ii belant as well as the deck cargo,so there can be ,no question but that it must also contribute; and my. ruling is that the. ship, the freight, and underdeck cargo must all conaveragefor the jettison of the deck load.
. these 'reD;larks indjcate with what strictness courts should scrutinize
O. TEL. CO.
INTERSTATE TEL. CO. v. BAImMORE & O. TEL. CO. OF BALTIMORE COUNTY et d.
Wircu1t Court. D. Ma11lWina: June 8. 1892.)
aSOLVENCY OF AGENT-LIABILIT.Y OF PRINCIPAL TO
THIRD PARTIES. The B. & O. R. R. Co., having power to transact a general telegraph bnsiness, lind being the owner of an extensive telegraph system, caused the Telegoraph Company of Baltimore County to be incorporated with a small capital, and in its name made a contract with the complainant. For breach of that contract the complainant recovered judgment against the Telegraph Company of Baltimore County. The B. &0. R. R. Co. sold out its whole telegraph system to the Western Union Telegraph Company, and the Telegraph Company of Baltimore County was left without 8ssets of any kind, and became insolvent. Held, that as the railroad company was the sole stockholder of the Telegraph Company of Baltimore County, and appointed its officers, and held it out as having authority to contract with regard'to the whole systeID owned by the railroad company, the Telegraph Company of Baltimore County was a mere agent of the railroad company, a mere name, in fact, under which the railroad company conducted its telegraph business, and that, under the circUlDlltances of this case, a court of· equity had jurisdiotion to decree that the railroBli company. as principal, should pay complainant's judgment against its agent, from which it had taken all the property which it had represented that· its agent controlled. (BlIZuwus by t"M Court.)
In Equity. Creditors' bill. Decree for complainant. Munnikhuysen &; Bond. for plaintiff. J. K. Gbwenand Charles J. M.Gwinn. for defendants.
MORRIS. District Judge. This is a creditors' hill filed by the Interstate Telegraph Company seeking, in equity, to obtain payment of a judgment against the Baltimore & Ohio Tp,legraph Company of Baltimore County for $25,133.75, which it recovered on the law side of this court, April 19, 1890, and execution upon which has been returned nulla bona. The judgment was recovered for damages sustained by the complainant company for the breach of a contract which it had made with the Baltimore & Ohio Telegraph Company of Baltimore County, dated December 15, 1885, and a supplemental agreement, dated November 30, 1886, by which contracts the Interstate Telegraph Company agreed to build, equip, operate, and maintain certain lines of telegraph in Michigan and Ohio, in: consideration of an agreement for an exclusive interchange of telegraph business with the ger.eral telegraph system connecting the various leading cities of the United States, which the Baltimore & Ohio Telegraph Company of Baltimore County was at the dates of said agreements stated therein to be engaged in operating and extending. It appears from the testimony and from the admissions of the pleadings that about. 1877 the Baltimore & Ohio Railroad Company, having a system of telegraph poles and wires located along its railroads and maintained for use in its railroad business, began extending its telegraph system for general commercial telegraphing, and thatin 1882, by act of the Maryland legislature, (Act 1882, c. 231,) it obtained auv.51F.no.3-4