,li !'OSTJIIR I!t
THB G.L. ROSENTHA.tl.
. _' .
(Dls1rlct Court, B. D. New York.
AGRlliEMENT-TDiIlI: CoNTBACT-BIUtAOR 'OF CONTRACT.
'Where the owner ot tugs made an· agreementwtow libelant'8· boat on be, various voyages .· an entire seaso.D/ and entered upon 8U9b c:oIltract, alld afterwards, Ilear the elld ot. the season, wIllfully abluldoned It, and refused to'take libelant's boat, held, that the tugs were answerable inl'em t.or the damages attendIng the breach ot con1ract.
Decree for libelants.
Libel to enforce lien for breach of oontraot.
, Lamb, Osborne & Petty., for Ubela:pts. Hyland & Zabriskie, for respondent.
BROWN, DistrictJudge. ·In the spring of 1892, the owner of the tugs Rosenthal and Merritt contracted to tow the libelants' boat, the Retsof, during the canaIseason of 1892, between Rochester and New York, bringing salt from Rochester to New York, or to points on the lJudson river as directed, at 'the rate of 90 cents per ton ,on all down trips, and to deposit with the libelants $25 on each roundtrip as a guaranty of good faith; the same to be held by the until the contract was completed. It was also agreed that the should be at the eastern end of the canal as soon as the season opened. The libel alleges a delay of 10 days in arriving at the canal at the beginning of the season; the'performance of the contract therea.fteruntil November; and that then the respondent willfully abandoned his contract and took other boats. A lien is claimed for the damages. The evidence does not snfficientlyshow that the libelants actually suffered·· any damage by the delay in arriving at the canal at the opening of the season, inconsequence of the crowd of boats in waiting there. Deposits to the amount of $125 having been made with the libelants, pursuant to the contract, and the damages arising from the abandonment of the contract in November being $225, there remains a balance of $100 with interest, for which the libelants are entitled to a decree, if the action in rem is maintainable. The claimant contends that the only principle upon which a lien against the boat is maintainable for her breach of contract, is the mutuality of the remedy between the ship and cargo; and that
inasmuch as for the last voyage there was no cargo taken on board upon which a lien could. be enforced for, freight or towage, there is no counter lien f9r the damage to the libelants arising from the abandonment of the last trip.' ,.' If this argument were admissible, it wollld amount simply to allowing th,e sh"ip to take advantage of her own wrong. It is not pretended that there was no cargo for shipment; its readiness is proved. The act of abandonment was willful, and from no other motive, apparently, than to secure higher compensation near the close of the season. The claimant should, therefore, be deemed estopped from alleging any such lack 'of mutual remedy. The contract in the present case. is not a separate contract for independent voyages,but a contract for a service during the entire season. The proofs show that the rate of compensation was a rate adopted with reference to :the wholesEfason; the rate for the first part being in excess of the market price. The requiremeht of a deposit was intended as a guaranty against precisely such fraudulent conduct as. Hazard, the master, was guilty of in the end. As respects a lien for breach Of contract, this case is not distinguishable from other time charters. If the charterer in all such cases had no remedy against the vessel for an abandonment, after she had entered upon a contract contemplating numerous voyages, except for an abandonment of the particular voyage on which some cargo might have been actually taken on board, his remedy against the ship for breach of charter would be practically destroyed. Such I do not understand to be the law; but rather the rule stated by the present Mr. Justice Brown in the case of The Ira Chaffee, 2 Fed. Rep. 401, where he says:
"It must now be considered as settled that if the ship enters upon the performance of its work, the ship becomes pledged to the complete execution of the contract, and may be proceeded against in rem for a nonperformance."
Actions in rem are not uncommon in this court for the breach of time charters, of which The Calabria, 24 Fed. Rep. 607, is an example. No question was there made of the jurisdiction of the court to proceed in rem, although no breach of the charter was established; and the decision was affirmed on appeal. In the case of The Baracoa, 44 Fed. Rep. 102, it was assumed that after the vessel had entered upon the performance of her time charter for three years, the charterer could recover damages for breach of the express covenants of the charter as respects draft and speed, although after. trial he had for those breaches rejected the vessel; the charter "forming a continual contract, and the breaches being continuing breaches." The contract in this case being evidently a \:lingle indivisible contract,' and the boats having entered upon the performance of it, I must hold them answerable in rem for the damages attending the breach and refusal to continue it till its termination. Decree for the libelants for $100, with interest and costs.
THE O. E. CONRAD.
TinnRHoDA A:ND· CHARLIE.
FOSTElR v. THE O.E. OONRAD and mE HHODA AND .OHARLIE.I (DIstrict Court, S. D. York. May 81, 1898.)
\1ARITnJJll LIENS-UNAUTHORIZED POSSESSION OF BOAT-BREACH OF CONTRACT BY WRONGDOER-LIABILI'l'Y OF BOAT. ·
Where' one obtained l)(lssession of boats without the owner's consent or authority, and aftel'Wards, in his own name, entered into contracts of towage in regard to such boats whIch contracts he subsequently violated, hfJd, that mere possees'lon, wIthout right, is not even apparent legal authority, and one who deals with the wrongdoer in possession does so at his peril, and no lien against the boats was created by such breach of contract.
In Admiralty. Libel by PeU W. Foster against the O. E. Gonrad 'and the Rhoda qha,rlie to enforce lien for breach of contract. Libel dismissed. Lamb, Osborne & PettYifor libelant. Hylanll & Zabriskie,for claimants.
BROWN, District Judge. In this. case, which in llome respects resembles that of Foster v. The Rosenthal, 57 Fed. Rep. 254, it appears thl:l.t Hazard, the master, under a contract for- the purchase of the bQats, had obtained possession of them from the owner without his consent or authority, and then made in his own name the contract to carry the libelant's goods for the breach of which the libel is filed. I doubt whether proceeding to Rochester with the intention of taking the libelant's salt, and on arrival there going elsewhere for a different cargo, would constitute such an entry on the performan,ce of the contract, as would bring case·· within the rule of a'partial execution of the charter, sufficient to sustain a libel in rem for the breach of the contract. Aside from that, however, the. uJ:lcontradicted evidence shows that Hazard. had not the least auth()rity to make any charter, or contract binding on the boats; that possession of them had never been delivered to him by the owner, nor any consent given that he should navigate them or make any contract of carriage. He had no authority real, implied, or apparent; for mere possession without right or the consent of the owner, is not even apparent legal authority. The libelant in dealing with him, dealt, therefore, at his peril. It follows that the libel must be dismissed; but as the claimant, the true owner, has Qbtained actualpossession of the boats by meanlil of these very libels, :notpreviously knowing where the boats were, the libel without costs. may
'Reported by E. G. Benedict, Esq., ot the New York bar.