THE RICHARD WINSLOW.
in danger, and put up distress signals. There is dispute over the question whether she could have been put in condition to navigate, and with reference to the violence of the wind and the sea. It is clear, however, that the vessel called for and needed assistance, and that there 'Was much panic among the passengers, if not on the part of the crew. The freight propeller Scotia hove in sight (claiming to be out of her course because of the gale), and, discovering that the Peerless was in distress, went to her assistance, and was requested to take her to the harbor at the Manitou Islands. The line was promptly taken, and she was towed to that harbor, a distance of about 45 miles, occupying about nine hours, without serious difficulty, aside from a stormy passage. The libel states the value of the Peerless at $118,000, and her cargo at $50,000, and that she had about 50 passengers and her crew; the answer states her value at $60,000, and the cargo at $27,000, The Scotia was of about the same value. The actual worth of the service as towage would have been $500 to $600, according to the testimony; $15,000 was claimed as salvage. The decree pronounced the service one of salvage, and allowed $2,000. The libelant appealed, and the decree. was in all respects affirmed. In the present case it is undisputed that the shaft of the Spokane could not be repaired until she reached a port; in this respect the Peerless may have been in better condition, but the danger to the Peerless was more imminent. The Spokane, however, required towage for a greater distance; the passage was rougher and more difficult; the season was at its close, when a sudden and violent storm was to be apprehended; the values of all the property at risk were much greater. The compensation here should be larger. As $600 would probably have been a fair charge for the towage alone, there will be added to that the sum of $3,000, making an allowance of $3,600 for salvage, for which amount I decree for the libelant, with costs.
THE RICHARD WINSLOW. NORTON et aI. v. THE RICHARD WINSLOW. (District Court, E. D. Wisconsin. April 17, 1895.) L
CARRIERS-TERMINATION OF CARRIAGE-CHARACTER OF LIABILITY.
In November, 1893, a cargo of corn was shipped on a schooner at Chicago, to be carried to Buffalo, the bill of lading providing that the charge for freight should include free storage in the vessel at Buffalo until April 1, 1894. On arrival at Buffalo, the cargo was inspected and found in good order. Thereafter the vessel remained moored at a wharf, in charge of the captain. During the winter, in consequence of an unusually low tide, the vessel grounded, and was thereby strained and caused to leak, whereby the cargo was damaged. Held, that the liability of the owner of the vessel, as carrier. ceased on her arrival at Butralo, and thereafter his liability was that of a warehouseman only.
Held, further, that the water-borne. character 01' the contract ceased on the arrival 01' the vessel at Buffalo, and the admiralty had no jurisdiction of the claim for damages to the cargo while lying in the vessel &s a mere storehouse.
t.ADMIRALTy-JURlsDICTION-CONTItACT FOR STORAGE ON VESSEL.
It seems that, even if the contract were maritime. the vessel would be relieved of liability under the Harter Act (Laws 1893, c. 105), the vessel having been properly manned and equipped, and the fault, If any. having been in the management. of the vessel during the winter.
This was a libel by J. Henry Norton and others' against the schooner Richard Winslow for damages to a cargo of corn.
The schooner Richard Winslow received at Chicago, November 16, 1893, a cargo of corn to be carried to Buffalo. The bill of lading states that the lake freight Is three cents per bushel, "including free storage In vessel In Buffalo harbor until April 1, 1894, to be unloaded at shipper's option on or before April 1, 1894," The vessel arrived at Buffalo November 22, 1893. The cargo was then examined by two "surveyors," one selected by the consignee, and the other by the carrier, and they certified that it was in good condition and uninjured, The vessel was thereupon moored at a wharf,' pursuant to direction by the shipper, and remained during the winter In charge of the master as ship keeper. In February there occurred heavy northeast gales, which lowered the water in the harbor to an extraordinary degree, and the answer states that it caused "said schooner to take the bottom, and strained the butts of her deck, hatch combings, and mast apartment, without any fault or neglect" on the part of the respondent; that, in consequence thereof, "a portion of the cargo was found to be wet during the winter, and was taken out, and when the schooner was discharged In the spring" 820 bushels of corn was "in bad condition, and the remainder somewhat damaged." The cargo was delivered April 7, 1894. and the consignee then paid the freight, but claims $2,202,64 for damages to the corn under the circumstances shown. After the inspection by tb,e on arrival, and In accordance with their suggestion, "the hatches were put on and covered with tarred paper and canvas covers." The "surveyors" made another examination after the February storm, and removed some wet corn. but pronOl:tnced the remainder safe, and closed the hatches. The testimony is undisputed that they looked over the deck and hatches and found no signs of openings from the strain, and that the decks were kept clear of snow throughout the winter. The libelants claim, and their testimony shows, that the grounding and listing of the vessel would tend "to strain the deck and open the butts on deck and hatches," and cause leakage; that the safest precaution was to try the seams with a knife, and go over them with the calking iron, immediately after the vessel was restored to position. The testimony does not indicate that such measures were either suggested or adopted. The libelants further show that the vessel owner was llving at BUffalo, was frequently about the vessel during the winter, was an experienced mariner, and they therefore claim he should have known of and adopted these requirements for protection of the cargo.
Schuyler & Kremer, for libelants. :Van Dyke & Van Dyke, for claimant. SEAMAN, District Judge (after stating the facts as above). The practice of utilizing vessels, when laid up for the winter, as storehouses for grain has become frequent in the ports of the Great Lakeil. The shipper thereby saves elevator charges, and the vessel owner secures a cargo. The transportation may precede the storage. or may close it; in either scheme the storage extends to the opening of na.vigation in the spring. In view of this practice, the questions involved in this case have special importance, and I have given them careful consideration. In the hope and expectation that they will be taken up by appeal, and thus become settled for this oircuit, a brief statement of my conclusions will suffice for the purpose of a decree here.
Roach, 2 Fed. 393; The W. F. Brown, 46 F.ed. 290; The Sirius, 65 Fed. 226. 3. If the contract be regarded as· maritime--as that of a carrier throughout the storage--it is doubtful whether the vessel and the owner would not be relieved of liability by the provisions of section 3 of chapter 105, Laws 1893, known as the "Hartel' Act." It is alleged and shown that the vessel was "in all respects seaworthy and properly manned, equipped and supplied" when the cargo was received, and if there was any fault during the winter it was "in the management of said vessel." That act expressly saves the vessel and owner from liability in such cases. See The Viola, 59 Fed. 634; The Berkshire, rd. 1007; The Silvia, 64 Fed. 607; The Etona, rd. 880; The Sintram, rd. 884. The libel must be dismissed, with costs, and decree will be entered accordingly.
THE POCONOKET. BACON
(District Court, E. D. Pennsylvania. March 22, 1805.) No.9.
CONSTRUC1'ION OF' CONTRACT-SALE OF' VESSEL-WHEN TITLE PASSES-PAY· MENTS DURING CONSl'RUCTION.
The rule in this country (contrary to that in England) is that under a contract for the sale of a vessel, to be paid for as the work progresses, the title remains in the seller until delivery, in the absence of any provision indicating an opposite intent; but the question is one of intention, purely.
'Vhere a vessel was to be built under a contract providing for payment by installments as the work progressed, held, that the question whether title passed immediately to the purchasers was not determined in the negative by the fact that the contract gave them a right, in certain contingencies, to reject the vessel after completion and recover the money paid; nor in the affirmative by the fact that part of the earlier installments was to be paid in bonds of the purchasing company, secured by mortgage, which was to include the vessel herself, together with other specified property.
8. SAME-PAROL EVIDENCE. Where a CQntract provides for the purchase of a vessel, to be pa i<i for as the work of construction progresses, without any express pro\-isions indicating the intent of the parties as to whether title shall pass before delivery or· not, it is competent to prove a parol agreement, made before execution of the contract, that the title should pass when work was commenced, as there is nothing in such an agreement which tends to contradict or vary the written contract.
Where it appears that in consideration of such a parol agreement the purchasing company reduced its demand as to the amount of security required of the builders for repayment of the advances in case the. contract was not satisfactorily performed, it would be a fraud upon the purchasers to permit the repudiation of such agreement, for the intent to repudiate, as manlfested at the trial, would (under the Pennsylvania decisions) relate back to the date of the contract, and constitute a fraud \Il its procurement, such as would justify its reformation in equity. .