THE GOVERNOR AMES.
has been the ordinary practice from time immemoriaL as respects a great variety of goods. ·What is or is not a reasonable handling, in this regard, within a space not beyond the reach of the ship's tackles, is a matter properly falling within the scope of the custom and practice of merchants to determine. These customs, as well as those relating to "customary dispatch" at the port of destination, so far as they are lawful and reasonable, are presumably within the intent of both parties to the charter and form a part of their contract. Smith v. Pine Lumber, 2 Fed. Rep. 396; Lindsay v. Cusimano, 10 Fed. Rep. 302, 12 Fed. Rep. 504. Here the allotted space was "within reach of the ship's tackles." There is no evi· dence that the piling done or expected was either excessive or un· reasonable, or beyond the ordinary practice. It was not incompatible with the provisions of the charter; and having been done voluntarily by the ship, and in accordance with the custom, there i" no implied promise or duty of the charterer to reimburse her. E\Ten departures from the charter provisions, when voluntarily adopted, and without objection, may be treated as a waiver of the literal provisions of the formal parts of the chart Arreco v. Pope, 36 Fed. r. Rep. 606. On the former grounds, however, the libel should be dismissed; but under the circumstances of mistake. as indicated, without costs.
'I'lIE GOVERKOH Al\1ES. v. THE GOVERNOIt A"l\1ES. (District Court, D. Washington, N. D.
Tlte maritime law giv0s a se/lJuan no right to recover damagps lrw pf'rmanent disabilities causf'd by the negligence of the ship's ofIicers, bur, he is entitled, on the other hand, irrespective of any negligence on hh; own part or on the paTt of fellow seamen, to recover ·wages to the end 0(' the voyage, and to be cured at the ship's expense, so far as cure is pas· sible. 'fhe City of Alexandria, 17 I<'ed. Rep. 396, followed.
SAME-DEFECTIVE SHIPPING ARTICLES.
Nor is his right of recovery affected by the fact that the shipping; articles signed by him did not conform to the requirement of the law,; of the United States. The master cannot be permitted to take advantag(' of his own neglect in that regard.
In Admiralty. Libel in rem, against the schooner Governor Ames, by John Paulson, a seaman, to recover damages for a personal injury suffered while stowing cargo. Decree that libelant recover tlw amount of wages which he would have earned by completing the voyage for which he had engaged to serve. W. V. Rinehart, Jr., for libelant. John M. Gearin, for claimant. HANFORD, District Judge. From the evidence in this case I find that the libelant was hired at San J<'rancisco to serve as an able seaman, on board the schooner Governor Ames, for a voyage from San Francisco to Puget sound, thence to Australia, and return
to an American port on the Pacific coast. The wages contracted for were to be at the rate of $40 per month until the vessel should be loaded at Puget sound for the contemplated voyage to Australia, and from that time, until the termination of the contract, at the rate of $30 per month. The shipping articles signed by the libelant do not conform to the requirements of the United States statutes, and are insufficient to constitute a valid contract; but the document in evidence serves as a memorandum to corroborate the libelant's testimony as to the terms of the verbal contract of hiring entered into between the signers and the master. It shows that the vessel was to be employed on such a voyage as I have described, and that it was contemplated that the libelant should go in her as an able seaman, and receive wages as above stated. Pursuant to this contract, the libelant went on board, and served faithfully until he was injured by being struck by a heavy timber while doing his work in the hold, stowing her cargo of lumber, which she was to carry to Australia, in consequence of which he was, by the captain's orders, removed to the marine hospital at Port rrownsend, and there paid the amount of wages earned during the time he was actually employed. 'l'he libel charges that the injury was caused by negligence on the part of the officers of the vessel, and on this ground he claims to be entitled to recover compensation for an injury causing permanent disability. I find it unnecessary to decide whether or not there was negligence on the part of any officer 01' member of the crew, or whether the libelant contributed in any way to his own injury by negligence on his part. The law governing cases such as this is well stated in the following extract from the opinion of Judge Brown, of the southern district of Kew York, in the case of the City of Alexandria, 17 Fed. Rep. 396:
"In cases of accidents like the present, the pl'ovisions of the lllaritime law applicable to the rights of the parties are altogether different from thoso of the municipal law in regard to similar accidents on land. By the lattcr the person injured, if chargeable with contributory negligence, would recove!' not.hing; he would not be entitled to wages while disabled, nor to be nursed and tended at his employer's charge. By the maritime law the mere ordinary negligence of t.he seaman, though that be the sole cause of tho accident, makes no difference in his right to be cured at the ship's expense, and to his wages to the end of the voyage; and, as his own negligence does not debar him from these rights by the marit.ime law, so, convl'rsdy, these right.s are in no way extended, though his hurts have arisen by the negligent act.s of others of the ship's company. In effect., the maritime law lllt1kes no account of mere ordinary negligence in such cases. More or Ipl's npgligence is in fact to be expected, and the rules long el'tablished, t1S regards the rdief to be afforded, nre irrespective of such negligence, whether by the sealllan or others. 'Vhen the owners perform all that can be reasonably done on t.heir part by the proper equipment of the vessel for the voyage, and th(, sdectiou of competent officerI' and a sufficient crew, no reason existl' in natural justic(lt for holding them or their vessel answerable for the accidents to seamen which hnppen during the voyage, beyond the limits which the maritime law has -established."
Although the shipping articles signed by the libelant are defective, he is not blamable. The master cannot be permitted to take advantage of his own neglect in this regard, after the libelant has been
disabled in the service of the ship, by claiming a forfeiture of the wages which would have accrued if the law had been complied with. The libelant is by the maritime law entitled to the balance of his wages, at the rate of $30 per month from the time of the accident to the date of the vessel's return from Australia to an American port, and costs. Decree accordingly.
THE 'l'O!\GOY.1 et a1. v. THE TOXGOY. (District Court, S. D. Alabama. ;\larch 25, 1893.) 1.
SHIPPING-CHAllTEll PAllTy-MAS'l'ER TO SIGN BILLS
\Vlwre tllP elmrtpr party rpquirpd the master to "sign shippers' bills of lading as prosPlltprl without prejudice to the charter party," he is bound to sib'1l any usmil bill presented desclibing goods actually to the vessel, and a rdmml to do so is a hrpach of the party, which entitles the shipper to such damages as may be shown; but such provision does not require the lllastpt· to Si!-,'"ll erroneous bills, and seek subsequent redress for shortage. The constnrction of such contmds as chartpr parties should be liberal, agl-eeabl", to tlw rp:l1 intention of its p:lrties as ascertained from the whole inslnrnwnt. conformablp to tlre usages of the trade concerned.
PAHTY LTllEHALLY CONSTllUED.
A bill of lading' is both a writtPll acknowledgmpnt, signed by the master, that the ,pssf'! has J'('('pi,f'd from the slJilllJeI'S the goods thel'\'in described, and a IJl'ombe to transport and tlwm on the terms therein expressed, A provision in :I drartpr p::rty that "bills of lading are to be binding upon master aJl(l mYlH'l'S as proof of quantity delivered to the ship," makes the bills not only prima facie, but conC'lusive, evidence on that point. \Vhen true hills of larling' an' tlw master cannot malw any indorsement impairing their negotiability, but he may, before signing, indorse a corl'f'ction of any t'lTors in bills of brling presented to him. Shippers do not prejudice their light to redress by protest bills of lading wrongly indorsed by the master. under
SAME-AGREE)!EXT AS TO CONCJ.TTSIVENESS OF Bn,LS OF LADING.
Tm:E BILLS OF LADlNG.
SA)1E-AcCEPTI:-<G BILLS OF LADING UNDER PnOTEST.
In Admiralty. IJibel in rem by shippers to recover damages for breach of eharter party in that the master, before signing bills of lading, which he claimed were incoITect, indorsed on them that a eertain amount of cargo was in dispute. The shippers accepted the bills under protest, and then libeled the vessel. Heard on the merits, and libel di'smissed. G. L. & H. 1'. Smith, for libelants. John E. Mitehell and Pillans, Torrey & Hanaw, for elaimants. TOULMIN, Distriet Judge. The libelants sue for a breach of a charter party made in London, Eng., on the 22d of October, 1892.
1Reported by Peter J. Hamilton, of the Mobile, Ala., bar.
The charter party contains, among other things, the following stipulations:
"'l'he master shall sign shippers' bills of lading as presented without preJudiCe to this charter party, but any difference in freight shall be Hettled on signing bills of lading. * * * Bills of lading are to be binding upon master and owners as proof of quantity delivered to the ship; the master's signature to be in all cases binding upon owners."
The cha.rterers were the shippers, and the cargo consisted of deals and boards. The breach of the charter party alleged is that the master refused to sign bills of lading as presented by the shippers, unless there was expressed thereon, "seventeen hundred and seventy-five pieces in dispute, all on board to be delivered." The master refused to sign the bills of lading as presented for the quantity of lumber specified therein, on the ground, as he stated at the time, that he had not received that number of pieces; that the number of pieces delivered to and received by him was 1,775 less than the number named. Libelants were at first unwilling to have said indorsement made on the bills of lading, and did not consent thereto, but subsequently consented, and received from the master the bills of lading signed in the form proposed by him, but did sO under protest 'l'he libelants then brought this suit to recover damages alleged to have been sustained by them by the master's refusal to sign the bills of lading as presented. The parties to the contract stipulated in the charter party, as they had the right to do, that the master should sign bills of lading as presented, without prejudice to the charter party. When this is the case the master is bound to sign any usual and ordinary bill of lading presented to him, and his refusal to do so is a breach of the charter party, and gives a right to damages, if any are shown. Scrutton, Charter parties, p. 45; Macl. Shipp. p. 408. But the master cannot be required to sign bills of lading unless the goods have been delivered. His authority to give bills of lading is limited to such goods as have been put on board. Carter, Carr. 156·-161. The contention on on the part of libelants here is that, under the contract in this case, the master was bound to sign any bills of lading presented by the shippers in good faith, whether the qnantity of lumber specified in the bills of lading had actually been received by the master or not; in other words, he was bound to sign at all events, and if it thereafter appeared that the quantity of lumber receipted for had not been actually received, the owners or master of the vessel must seek such redress as might then be available. With this contention of the able counsel for the libelants I cannot agree. My opinion is that, under the clause in the charter party providing that the master shall sign shippers' bills of lading as presented without prejudice to the charter party, he is not compelled to sign bills of lading without reserve. He is not compelled to sign them for a specified quantity of cargo unless it is actually measured or counted into the ship. I think the meaning sought to be given to the clause referred to is too literal, too restricted. The general rule is that the construction of contracts of this
character should be liberal, agreeable to the real intention of the parties to it, and conformable to the usages of trade in general, or of the particular trade to which the contract relates. 1 Pritch. Adm. Dig. p. 473, § 37. To ascertain such intention we should look to the whole contract, and not to a single part of it. 2 Pars. Cont. 13. We should consider the nature of a bill of lading, and, construing the contract conformably to the usage of the particular trade, determine the rights and obligations of the parties to it. Now, a bill of lading is a written acknowledgment., signed by the master, that he has received the goods therein described from the shippers, to be transported on the terms therein expressed. It is a receipt for the quantity of goods shipped, and a promise to transport and deliver them as therein stipulated. The Delaware, 14 Wall. 579. Can it be justly or reasonably claimed that the parties to this contract intended by the charter-party provision, "The master shall sign bills of lading as presented," that he should give a written acknowledgment that he had received lumber on board of his ship for transportation which he had not in fact received? Can such claim be made in the face of that clause of the charter party which provides that bills of lading are to be binding upon the master and owners as proof of the quantity delivered to the ship? For the bills are not to be mere prima facie evidence, subject to be rebutted by the master in case of dispute; not merely the medium by which the quantity delivered to the ship is to be prima facie established,-but they are to be conclusive evidence against master and owners as to the quantity received. Such a construction of the charter party as would compel the master to sign erroneous bills of lading is illiberal, unreasonable, and unjust, and one not, in my opinion, agreeable to the real intention of the parties. I think the true construction is that the master shall sign all true bills of lading correct as to the recital of facts therein as presented. If he signs bills of lading at all, he must sign them as presented, without any indorsement impairing their value or negotiability. If they are not true,-not correct in point of fact,-he should refuse to sign them. He does so, however, subject to liability for wrongful refusal. The master's refusal to sign the bills of lading as presented was no breach of the charter party if the quantity of lumber specified therein had not been received by him. But he took the responsibility and risk of such refusal; and if, as a matter of fact, that quantity had been received, his refusal to sign the bills of lading, however honest he may have been in it, was a wrongful refusal, and ga ve a right to the shippers to recover damages, if any could be shown; or, if the ship had sailed away without ghing any bills of lading, it would have been liable to a suit for conversion. It makes no difference, so far as the shippers'right of action is concerned, whether the master refused to sign any bills at all or signed them, under the libelant's protest, with an indorsement which impaired their negotiability 01:' value. This brings us to the question whether the quantity of lumber specified in the bills of lading presented by the shippers was
actually received by the ship. The burden is on the libelants t,) show this. In the state of the proof on the subject I am unable to say that they have done so. From the testimony of libelants' witness· Chandler it appears that he loaded 28 cars with lumber for them at a mill some 60 miles from Mobile, and whither they were brought. A copy of the specifications made by him is in evidence, and which specifications show an aggregate of 27,234 pieces. Pradoss, llJlother witness for libplants, testified that he loaded 2 cars for the "Tougoy," and they aggregated 3,371 pieces; making a total as loaded nt said mill of :W,H05 pieces. Npithpl' of these witnesses had personal knowledge that the lumbpr they put on the cars at the mill was actually received by the ship. 1'he mate of the ship is the only witness who testifies positively to the number of cars bringing lumber to the ship, and he gives the number of each car, and the number of pieces of lumber which he received on board the ship from each car. The number of pieces of lumber he claims to have is 27,911. His testimony shows 2H cars corresponding iu their numbers with numbers found in Chandler's specifications, and 4 cars with numbers that do not cOI1'espond with any of said specifications. Two of the last cars, I take it, were those loaded by I'radoss. But Chandler's give the uumber of one car that does not appear from the master's testimony to have been received at the ship. There is no direct evidence accounting for this car, and I cannot find that it ever reached the vessel. The shippers were loading other vessels with lumber at the same time in the port of Mobile. The number of pieces of lumber claimed by the bill of lading to have been delivered to the ship '''l'ongoy,'' and for which the master was requested to receipt, is 29,(i8H. The number claimed to have been loaded on the cars at the mill, and shipped to Mobile for her, is 30,H05, nearly 1,000 pieces more than shown by the bill of lading, and the number claimed by the ship to have been received is 27,911 pieces, or 1,775 pieces less than shown by the bill of lading. In this condition of the evidence I am unable to find what the truth is. I must therefore hold that the libelants have failed to discharge the bm'den resting on them to show, at least by a preponderance of evidence, that the vessel did receive as her cargo 29,686 pieces of deals and boards, as they have averred in their libel. 1'he libelants have not made a case which entitles them to damages, if any had been shown. The libel must be dismissed: and it is so ordered.
THE CYPRUS. KElLEY v. THE CYl'HUS. (District Court, S. D. New York. March 29, 1893.)
SHIPPING-PERSONAl. INJUHIES-DEFEC'1'IVE ApPLIANCES -CONTRIBUTORY NEG. LIGENCE.
A vessel is liable for maintaining defective and unsafe appliances, but an employe who knew of sucll defect, but failed to use additional care, is not entitled to full damages in case of injury.