NORWEGIAN·· STEAMSHiP CO. v. W.A.SmNGTON.
(Circuit Court of Appeals, Fifth Circuit. June 20, 1893.) No. 136.
MA.RITWE LIENS-STEVEDORE'S SERVICES-PRESUMPTIONS.
The services of a stevedore in stowing cargo In other than the home port are services of a maritime nature,. and the presumption is that they were rendered on the credit of the vessel. The mere fact that 8: vessel Is under charter by a charter party which makes the charterers liable for the expenses of loading and unloading is not .sufficient to exempt the vessel from liability to one who renders services as a stevedore at the request of one whom he supposes to be the owner's or charterer's agent. The burden is on the vessel to show that the stevedore had knowledge of the terms of the charter party.
The steamship the Kong Frode, owned by the appellant herein, a corporation of Christiana, Norway, was on the 9th. of November, 1891, chartered by the Up.l.tedStates & Honduras Tra(ling Company for the term of 12 cal· endar monthS: The charter party provided that the owners should appoint the master, prOVide the crew, and pay for all provisions and wages; the charterers. to pay for coals, fuel, port charges, pilotages, and all other charges w1J.atsoever, and £700 sterling per month for lwr use and hire. Before thj.s charter had expired, the charterer, the United States & Honduras Trading ComPanY, rechartered her to Ross, Howe & Me1"l'ow, of New Orleans, to load three cargoes of general merchandise to Havana and other ports in Cuba 'at charterers' option. By this charter party the charterers were to pay freight at 1Jxed rates per sack or bushel; "the vessel to pay for stevedoring, and all other customary charges on cargo." 'Vhile loading under this charter, the libelant, as he alleges, was hired and' employed by the master to load and prop(!r!yBtow the cargo into the steamsWp, and did load and properly stow the cargo, which, at the agreed rateS for which lading and stowing. was done, . amounted to $369.75. Upon the presentation of the bill the master signed the same, "attesting" it. Upon presenting the bill to the firm whom the libelant supposed to be the sgents of the vessel, and at whose place of husiness,-the master being present.-he had made the· agreement to perform the work, llaym<lJlt was refused, and he commenced suit against the steamship in an action in rem. 'rhe master gave bonds for. the release 01. vessel, and filed to the libel, which being overruled, an answer was flIed, admitting that libelant was hired and employed to perform the services cargo, but denies that the charged, and that he dill properly store 'the price was the· agl:eed price, or that !iny agJ:Ieement for price was made, but that the price .cllarged was exorbitant and excessive, and more than the services of libelant wern worth, and averring, further, that .the steamship was at the time nnder a time charter,. and the services vf the stevedore were to be paid for by the cliarterers, Itnd that the libelant had full knowledge of these facts at the time he performed the The testimony showed that the first charterers, Messrs. Andress & Mitchel. under the name of the United States & Honduras Trading Company, had put their business as charterers Into the hands of Haadly & Co., of New Or-
Appeal from the District Court of the United States for the Eastern Distl'ict of Louisiana. . In Admiralty. Libel by Frederick S. Washington against the steamship Kong Frode (the Norwegian Steamship Company of the South, <ilaimant) to recover for services rendered as a stevedore. ['here was a decree for libelant, and the claimant appeals. Affirmed. ,Statement by LOCKE, District Judge:
NORWEGIAN STEAMSHIP CO.
Upon the hearing, judgment was given tor the libelant for the amount of the bill, with interest from judicial demand and costs, from which judgment an appeal has been taken, assigning as error that the court erred in not holding that the steamship was under a charter party which exempted her from liability tor stevedores' charges, and the stevedore ha.ving been employed by the charterers, under a contract with the charterers, the stevedore had no lien on the vessel; that the court erred in not holding that the libelant knew that the vessel was under a charter party, and that he knew he was engaged by the charterers, and that the fact that he presented his bill to the charterers clearly proves thwt the services were performed by the libelant on the credit of the charterers, and not on the credit of the vessel, and therefore the libel should have been dismitlsed; that the court erred in not holding that the services of the stevedore did not inure to the benefit of the ship, but inured to the benefit of the charterers, and that there was no lien on the vessel in tavor of the stevedore, and in not holding that the libelant's bill was exorbitant and excessive.
Guy M. Hornor, for appellant. O. B. Sansum, for appellee. Before PARDEE and McCORMIOK, Circuit Judges, and LOCKE, District Judge.
LOCKE, District Judge,(after stating the facts.) Where a necessary maritime service, or a necessary service which gives a maritime lien, is rendered to a foreign vessel upon the application of the master, or in his behalf, the presumption is that it is rendered upon the -credit of the vessel, and the burden of proof is upon him who contends otherwise. The Grapeshot, 9 Wall. 141; The Lulu, 10 Wall. 192; The Patapsco, 13 Wall. 329. It has been settled as the rule in this circuit that a stevedore's services, rendered to a ship in taking in, stowing, and discharging cargo, are services of a maritime nature, and, when rendered in other than a home port, a maritime lien will result. Dennett v. The Main, 2 C. C. A. 569, 51 Fed. Rep. 954. Such services have in numerous cases been deemed as ne,cessary to enable a vessel to pursue the general business of the transportation of cargo and the earning of freight, for which the vessel is intended, as any other class of maritime services. The Oanada, 7 Fed. Rep. 119; The Velox, 21 Fed. Rep. 479; The Gilbert Knapp, 37 Fed. Rep. 209; The Onore, 6 Ben. 564. The duties of consignees ur agents of ships, or the agents of charterers or owners, are so similar and undistinguishable that without some positive knowledge of their relations, contracts, and agreements, it is impossible to determine to which class an agency may belong; and the fact that a merchant purchases supplies, or procures services to be rendered a vessel, raises no presumption that he therefore sustains relations with the owners that make him responsible, and relieve the vessel from a lien. In the great majority of instances, in ordinary practice, the material man or stevedore contracts with, and takes his bill for payment to, the agent of the v.57F.no.1-15
iShiV,:"whether he represents theownel'S orchar'terers, without the of themLtster;. but py so doing he does not abandon 190k to 'We ve$se1meyent' ofa nonpayment. It cannot 'be presumed or expected that he can be informed as to the ex:acl:prOvi'sionsof theeharterj Oi"the responsjbilities of the par.... ties, iIi. .this. JJithe, liglJ,t of these general principles, we fail to find any affirmative proof that the libelant was, informed of the character or conditions of the charters, or either of them, or the.' responsibilities Of the vessel or charterers, or' in any way credit, t<?tlJ.e exclusion of the vessel, or gave tl!:e agent that the-eircumstances are shown .to he such that he should be held to have done so. The final, charter---,-the one under which he .vessel should pay ,fm;, the:stevedonng; ll,nd, had he kIlown'of thIS, It was in no way compulsory upon him to go .back:of that, and. find to whom the'term "the :vessel," there. cllsed"referred,-whether. owners or previous charterers; and, were,he,ignorallt of the. provisions of either charter, it cannot be presumed he knew of, or contemplated, any pltY,llJ.aster but the vesset ..There .is nothilig that shOws that he knew 'what relation Hoadly '&' 00;, ,through whose instrumentality he was employed, held to the vessel, any more than that they were the agents of Andress & Mitchel, whom he says he supone who looked posed to be the charterel"S' or out for the business. His testimony) upon this point is:
"The charterers or the agents of the.Shtp, who handled the business, made "Andress &.:Mitchel,and John G. Woods, were the agents the of· Hoadly &; 00., who were the managing' here." "I made the contract witllthe, agents of the ship." "Tpe agents at that time, I suppose, were AndreSs & Mitchel," . .
He states plainly that he did not know they were the charterers, as that did not concern him. It is not enough to shoW that an agent who employs labor or cures supplies for a is a charterer, and under that charter liable fOr the bills incu.;tTed, .but it.is necessary that the creditor also be ,aware of the. relation, and furnish the supplies or serv.ices with ,!luch an under,standing. The Patapsco, supra. There is nothing in. the case that raises the presumption that the services upon the credit of Andress & Mitchel,andintended. to look to them for his pay. They do not of New Orleans, l;mt are described appear to have been as "two m,en from New ,York, who had opened an enterprise between tb,is [New Orleans] and Honduras." Any property or credit they may have had in New Orleans, by which it might appear libelanthltd probably trusted them, is not shown. Not only is there of affirmative proof that Washington was aware of the relations of vessel and char.terer, and intended to waive his admira:,lty lien, but everytl;rln.g tends to strengthen the presumption fu,8,t he intended to rely upon it. His bill was made against the vessel; he procured the attestfj,tion of the master; and, al.
v; CHARLESTON PILOTS' ASS'N.
though it was'presented,to Hoadly & Co., it was as agents of Andress & Mitchel, whom he considered agents for the' owners. In the cases of The Stroma, 53 Fed. Rep. 281; The Golden Gate, 1 Newb. Adm. 313; The Aeronaut, 36 Fed. Rep. 499; and the other cases relied upon by respondent,-the charterers were owners pro hacvice, and the libelants" agents knew them to be such. Here, such is not the case. The owners appointed and paid master and crew, and held control of the vessel subject only to the terms of the charter party. The charterers were not special owners. Nor do we find that the libelant knew the conditions of the charter party, or that by it the charterers were to pay for stevedoring. Nor do we find the rates charged to have been exorbitant or unreasonable. They appear to have been less than were paid by some merchants, and the same as paid by all the vessels consigned to the sanie agents; and the preponderance of evidence is very largely in favoJ." of their being but fair, just, and reasonable. We find no error in the judgment of the court below, and it is affirmed, with costs.
WILSON v. CHARLESTON PILOTS' ASS'N et aL (District Court, E. D. South Carolina. July 8, 1893.)
PILOTS-LIABILITY-TuG AND SCHOONER.
A pilot engaged to take a schooner under tow to. sea is liable for any damage resulting to the schooner from his negligently taking Ws place upon the tug instead of on the schooner, although he does so at the request of the master of the schooner. A pilot is not liable for damage to the vessel In his charge unless caused by his failure to use ordinary diligence, 1. e. the degree of skill commonly possessed by others in the same employment.
SAME-FAILURE OF MASTER TO OBEY PILOT'S ORDERS.
A pilot engaged to take a schooner to sea from the harbor of Charleston, S. C., stationed himself on the tug, and ordered the schooner to follow the tug closely. On reacWng the Swash channel the tug headed S. E., (the wind being S. ·W., and the current from south to north,). thereby properly proceeding down the channel S. E. by E. % E., and on the south side thereof. The schooner had raised her mainsail and jibs by order of the pilot, but now, without orders, raised her foresail, and bore off to the north aide of the channel, where she grounded. The wind was fall' enough to take the schooner out by her sails alone. Hela, that the pilot was not liable.
'l'OWAGE-LIABILITY OF TUG-NEGI.IGENCE OF Tow-END OF CONTRACT.
The master of a schooner knowingly engaged a tug of inferior power to tow him to sea from Charleston harbor. In passing down the Swash channel, the schooner being under sail, with a breeze sufIlcient to take her to sea without the aid of steam power, she negligently ran agroond on the north side of the channel, and thereafter negligently lowered her mainsail, making it Impossible for the tug to get her off. Held., that the tug did not contribute to the accident, and was not liable for any further service under the contract of towage.
In Admiralty. Libel by Samuel P. Wilson, master of the schooner Kate V. Aitken, against the Charleston Pilots' Association and others, for negligence 'resulting in the loss of the schooner while