FEDERALREPORTSR. tnerefote,he held that the defendants have the first claim of No. 21,734. In a suit hefore Judge McKennan the of the two claims above considered was8ustained; but, in deciding the case, no written opinion was given. Ina suit in Missouri against Boisselier and Kupferle, involving the said claims and a closet like that of the defendants in these cases, the bill was dismissed, but on what grounds does not appear from the decision of· the court. In regard to any supposed effect of the decree in that suit, as a bar in favor of the defendants :ij:} these lIuits, it is sufficient to say that no prq. ceedings in that suit are set up in the answers in these suits. , There must be a decree for the plaintiffs as to the above claims, and for an account of profits and an of damages, with costs.
THE C. M. TrJlus.
(Diatrict Cowrt, S. D. New York. January 22,1881.)
REPA:rnING VESSEI,-HYPOTHECATING CARGO-NoTICE TO OWNER OF CARGO-SALVAGE-COLLUSION.
Where a master and owner of a canal-boat verbally agreed with the libellant to pump her out. ,and repair her leaks, having run her aground to avoid sinking, between Fourth and Fifth streets, Hoboken, where she lay within the line of the ends of the piers on a muddy bot'tom, and where she could remain safely two or tl.lree days without further damage, and out of the track of other vessels, the cargo consisting of iron, not likely to be injured; and neither of them consulted the shipper 01' consignee, although the master had two days before COIltracted with the shipper in New York to deliver the cargo at the Delaware, Lackawanna & Western Railroad dock in Hoboken, and had , already reported his arrival to the consignee i and the libellant, after partially completing the work an,d moving the boat to the Elysian Fields, demanded payment of the shipper in New York, but was 'refused, theunderwritei's claiming that the master acted without authority i and the libellant then tinished the work of caulking and patching her up, and after procuring from the master a written agree. ment for the services, dated back the day of his employment, and 1L written prote!,1; before a notary, also antedated, charging the leak.
TIlE C. M. TITUS.
ing to improper loading, filed)lis libehgainst both vesselandcarg? but voluntarily released the former before decree, and the boat was afterwards discharged and took other employment without undel'going repairs : Held, that the rule which requires the master to commuDicatewith the .owners of the cargo, if practicable, before, hypothecating or contracting for a lien upon it for extraordinary expenses necessary to enable him to continue the voyage,( The Julia Blake,16 Blatchf. 472,) applies to a ser\tice of t,his character; that the necessity for such services, which in each case is governed by the peculiarcircumstancesattend-. 'ing it, was not so pressing or immediate as to preclude the master in this case from consulting the shipper before employing the libellant; and that the latter, who presumably could have learned on inquiry who. and where the shipper or owner was, haviug failed to make such inquiry, is bound by the facts as they were and cannot recover. Whether the services in this case can properly be regarded as salvo age, query. Held,further, that as a salvage claim the libellant's demand, which was for 96 hours' scrvices, was grossly exaggerated, as the boat could have been pumped out and made tight in a few hours, and that the circumstances of the case tend to show collusion between the libellant and the owner of the boat prejudicial to the interests of the owner of the <!argo, and entitle the libellant's claim against the latter to DO consideration in a court of admiralty. and on this ground the libel should be dismissed, with costs
In Admiralty. E. D. McCarthy, for libellant. J. A. Bush, for claimant. CHOATE, D. J. This is a libelfor salvage against thecanalboat e. M. Titus. It is defended only by the owners of the cargo. The facts are as follows: May 22, 1879, one William D. Marvel, having his place of business in the city of New York, engaged the canal-boate. M. Titus to take a. cargo of iron ore from the steamship Greece, then lying at pier 39, North river, (New York,) to Hoboken, to be there discharged along-side a railroad dock. This agreement was made with the master of the boat at Marvel's office in Nassau street, New York. The master owned the boat. On the twenty-third of May the oanal·boat received 135 tons of iron ore from the steamship and her master signed a. bill of lading therefor, agreeing to deliver the same at the "D.L. & W. R. R. dock, ;Hoboken," along-side, to the order
of "L.J. & C. Co." upon payment of freight "as agreed,'· "the dangers of the seas only excepted." This was not a full cargo, but the boat was leaking and the master refused to take any more. Having received this amount of cargo the canal-boat proceeded on the same day to the place of discharge, and reported at the office of the company to whose order she was consigned. She was obliged to await her turn to discharge, and the master found she was leaking so badly that he feared she would,sink if she remained there till she could discharge. The cause of her leaking is attributed" by the master to the careless and improper way in which her cargo was put on board, and to her not being properly trimmed. To save her from sinking the master took her, with her cargo on board, to a dock in Hoboken, between Fourth and Fifth streets, where he ran her aground at high tide, stern foremost. There she was lying at the time of the rendering of the alleged salvage service. She was within the line of the ends of the piers and not in the track of vessels.' She was lying on a muddy bottom. At high tide she had between two and three feet of water in her. The captain and his wife were able to remain on board, the water not reaching the floor of her cabin. Her bows were not submerged at high tide. The master, with the help of some extra hands, and with two pumps, was unable to keep her clear of water at high tide. She was run aground on Friday, the twentythird of May. On Saturday, the twenty-fourth of May, a little after 12 o'clock, the master came over to New York to see the libellant and to engage his assistance. The libellant is engaged in the business of wrecking and of assisting ves. sels in distress, having a vessel equipped with a steam-pump and otper appliances therefor. In the afternoon of the same day, Saturday, the master found the libellant and made an agreement with him, verbally, for the use of his vessel and steam-pump, with her crew, at the rate of $3.50 an hour. The master, before making this agreement, had no communication with Marvel, the shipper, nor with the company to whose order she was consigned, with reference to the situa-
THE O. H. TITUS.
tioDOf the canal-boat. The libellant made the agreement with the master without making any inquiries as to who was the owner, shipper, or consignee of the cargo, or where such. shipper, owner, or consignee was, and without seeing the boat, or having any knowledge of her situation except what was reported to him by the master. Having made this verbal agreement the libellant sent his vessel and steam-pump and crew to the canal-boat, and they arrived there about 5 o'clock Saturday afternoon. She had then been lying there about 24 hours. They pumped her out in about two hours. They then hauled her higher up and in along-side the pier. Thepump was kept by her, pumping occasionally. On Monday morning they removed her to the Elysian Fields. I think, upon the evidence, the reason why they removed her was because the libellant had another vessel there which he was taking care of, and for which he needed his pump and crew; After getting her afloat the libellant's men and the master did some caulking, but sbe still leaked. On Monday the master and the libellant went to see the shipper, Marvel, and the libellant demanded that he should pay his bill for the use of the pump. The shipper referred him to the underwriters on the cargo, and the agent of the underwriters took the ground that the master had no authority to bind them or the owner of the cargo by the agreement made,· and refused to pay the bill. 4.fter seeing them the libellant obtained from the master a written contract, signed by the master, dating it back to May 24th, as follows:
"This agreement, made this twenty-fourth day of May, 1879, by and between George Donahue, master and owner of the canal-boat O. M. Titus, of the first part, and E. R. Lowe, of the city of New York, of the second part. The party of the first part, in behalf of own 1rs, underwriters, and all concerned in both boat and cargo, agrees to pay E. R. Lowe the sum of $3.50 per hour for eaeh and every hour that the steam-pump Relief is at work on the said canal-boat O. M. Titus; the said steam-pump Relief is to be along-side and keep the said canal-boat afloat until she is discharged. The said E. R. Lowe not to be held responsible for any loss or damage to boat' and cargo of any nature or kind. Witness our hands and seals this twenty-fourth day of May, 1879.
"GEO. DONAHUE· .. E. R. LOWE. ".
After the refusal of the shipper and tlle' ,underwriters to settle the bill, thEiinaster also, at the suggestion of the libellant, entered a protest before a notary, having it dated back to May 24th, and charging the leaking of the boat to improper loading and trimming. After other ineffectual efforts to induce the underwriters to pay his bill, the libellant gave orders to his men on Wednesday, May 28th, to patch the canal-boat up, make her tight, and leave her, which they did on Wednesday evening. The leak was no longer serious. She was afterwards taken to the place of her destination by the aid of a tug-boat and discharged. Afterwards, and without any repairs, she carried a cargo of coal. Before the libellant left her on Wednesday he had filed his libel against the canal-boat and cargo for 96 hours, at $3.50 per hour, making $336, coming down to a time later than the filing of the libel. There is some testimony from the libellant's witnesses that, in their opinion, the nature of the bottom where the canal-boat lay in the dock where she was run aground was such that she was in danger of sliding off into deep water. The evidence, however, to this point is very slight. The libellant himself, who testifies to this, did not see her there, and his foreman made no such examination as entitled his opinion to any weight, anJ I think the fact is not established. She had, at the time of the making of the agreement, lain there over two high tides, and was, of course, settling some in the mud, a!ld there is no satisfactory testimony that the bottom was shelving, so as to render her sliding at all probable. The libellant himself testified that .the canal-boat was not worth more than $75 as she lay aground. There is no proof of the value of the cargo, but it may be assumed to have been worth much more than the boat as she lay. The cargo was not damaged by water. The testimony shows that the price named, $3.50 an hour, is a reasonable price for the use of the steam-pump and appurtenances; that if the employment is only for a few hours a higher price would 'be reasonable. On these facts I doubt whether the· service rendered can properly be considered a salvage service; but, even if it was
THE C. H.TITUS.
a ,galvage' service, the necessity for it wasnotBo pressing and immediate that tnemaster had not ample'time and opporlu.. nity to communicate with the owner of the 'cargo before calling in the Rssistance of the libellant. ,The general rule undoubtedly is that 'the power of the maBter to bind, or hypothecate the cargo for extraordinary expenses, proper or necessary to enable him ;to continue, the prosecution of the voyage, arises only from the necessity of the case. His power over 'the cargo is primarily to 'carry it, not to sell or hypothecate it; It is an exigency unprovided for in the con· tract of affreightment, which eh>thes him With power, as the -agent of its owner, to sell or bind it as security for extraordinary expenses in the prosecution of the voyage. And on this ground, if it be practicable under the; cil'cumstances in which he is piaced, the master is' bound' to communicate with the owners of the cargo before he can hypothecate it, or incur such expenses as will give a lien on the cargo. The Julia Blake, and caaes cited, 16 Blatchf. 472. I see no reason why this.principle should not apply to a semce 'of this character under the circumstances in which this master was placed. His boat was in no appreciable present peril. The ca.rgo was one not liable to be damaged saltwater. The boat could lie where she was in entire safety for two or three days wUhout being liable to further damage. Bhe was not sunk in a navigable channel, as in the case of The John O. Ohwrchill, ·7 Ben. 343. The libellant, having made no inquiries, is bound by the facts as they were. It is to be presumed that if he had inquired he would have learned who and where the owner of the cargo was. No doubt there are frequently cases of sunken or sinking canal-boats where the necessity for aid both to boat and cargo is so pressing as not to admit of communication with the owners of the cargo before engaging' assistance, though they be close at hand,-cases where any delay involves the risk of damage. In such cases the master's power to act as agent of the owner of the cargo arises, and it is his duty to act,at once. Every case depends on its own circumstances,
a.nd this is not such a case. Even if this was a salvage case the· boat and her cargo were rescued from the peril, or could have been so rescued in a few hours. She would have been perfectly safe if the patching and cau1king>nnally done on Wednesday had been done on Sunday or Monday morning. As a salvage claim the libellant's demand has been grossly exaggerated. He contrived,withthe aid of the master, an antedated agreement to sustain his claim after it was disputed; and instead of'doing what he now pretends was necessary to make the salvage service complete at once, he delayed doing it till he could,.if possible, coerce the owner of the cargo into compliance with an unreasonable demand. acting with the owner of the boat to throw He is the expense wholly on the owner of the cargo. Although the boat was also attached on the process, she has been voluntarily released, and no decree has been entered against her. The circumstances tend to show collusion between the owner of the boat. and the 1ibellant,although they deny any understanding prejudicial to the interests of the owner of the. cargo. The acts of both these parties have been highly prejudicial to those interests. If the libellant ever had a claim for salvage he is entitled to no consideration therefor in a court of admiralty, but· has forfeited his right to enforce it against the property. The Lady Worsley, 2 Spinks, 256. Libel dismissed, with oo,ts.
HUTHSING ". BOUSQUET and
(Oircuit (Jourt, D.
May 11, 1881.)
Suit being brought againSt the members of the board of supervisors of Marion county for a reward publioly offered" by order of the board of supervisors.. H. D. Lucas, chairman,"-held: (1) That the offer clearly appeared to have been made by the defendants in their official capacity, and not as individuals. (2) That their authority to make contract being a matter of plaintiffs had notice of their want of authority, and could not therefore hold the defendants personally liable.
Demurrer. MCCRARY, C. J. This is an action to recover the sum of $5,000, which the defendants, who were membe.rs of the board of supervisors of Marion county, offered as !Ii reward, fOlthe apprehension. and conviction of the robbers of the treasury of that county. The question is before us upon a demurrer the petition. The plaintiff claims to recover upon two grounds:
(1) That the defendants offered the reward as individuals, and not in their official capacity as supervisors, and that, consequently, the contract upon which the plaintiff counts is a personal contract, binding upon the defendants as individuals. (2) That if the defendants assumed to bind the county of Marion by the offer of the reward in question, they transcended their authority as supervisors, and therefore, by the law of agency, became themselves personally bound to perform the contract.
The action cannot, in our judgment, be maintained on the first ground because the undertaking as Bet out in the petition does not admit of the construction that it was the intention of the parties that the defendants should be personally bound to pay the offered reward. It is perfectly clear that the offer was made by the defendants in their official capacity, and that it must have been so understood by both parties. The averments of the petitioner areThat the defendants were the legally-elected and acting board of supervisors of :Marion county; that on the tenth of October the defendants, assuming to act for said county, but without authority, caused to be published and circulated a certain circular letter in the following words: