THE MAGGm MOORE. (Circuit Court, D. MaIl'1/Zana.
May 28, 1881.)
CHARTER- PARTy-SAFE PORT.
The owner of a veRsel chartered her to carry a cargo of grain from Baltimore to a sajeport on the continent between Bordeaux and Hamburg, or as near thereto as she could always float with safety; order to be given on signing bill of lading; charterer's liability to cease as soon as the cargo was shipped, but vessel to have a lien on the cargo for all freight, dead freight, and demurrage. When cargo had been put aboard, the master, without objection to the port, executed bills of lading for delivery of the cargo to charterers or their assigns at France. The vessel was delayed in getting into the port of Calais by want of water on the bar at the mouth of the harbor, and also sutIered delay in discharging because the dock was' out of repair and could not admit her, and the owner in this libel in personam sued the charterers for damages for ordering the vessel to an unsafe port. Held, that Calais being a well-known commercial port, the master, by signing the bills of lading in which Calais was named, and agreeing to deliver the cargo there, had accepted that port as a safe· one, and thereby bound his owner; that the risk of the ignora:ilceof the master, or his to decide whether or not it was a safe port for the vessel, was to be borne by the owner and not by the charterer. Held, also, that tlle master, having accepted the port as a safe one, was bound to tender the cargo as near thereto as the vessel could get and float with safety, and that for demurrage and expenses thereafter the consignee of the bill of lading would be liable, and not· the under the limitation of contained in the charter·· party. .
Appeal in Admiralty.
Sebastian Brown, for libellant. Marshall et Fisher, for respondents.
WAITE, Chief Justice. Andrew K. Moore, the appellant and libellant, was the owner of the bark Maggie Moore, and on the twentyfifth of August, 1879, through agents at Baltimore, he chartered his vessel to Milmine, Bodman & Qo., the appellees and respondents, to take a cargo of wheat or Indian corn "from the port of Baltimore, Mdj, to a safe port on the continent between Bordeaux and Hamburg, both included; orders to be given on signing bills 01 lading; one port only to be used, or as near thereunto as she can always float with safety," Twenty-seven running days were given for loading and discharging; and for detention beyond that, by default of the charterers or their agent, demurrage at the rate of £18 per day, day by day, was to be paid. The Charter-party also contained the following:
"The cargo or cargoes to be received and delivered alongside of the vessel, where she can load and discharge always afloat, within reach of her taekles.
.THE MAGGIE MOORE.
Lighterage, if any, to be at the expense and risk of thecargo.,,Thecharterers' liability to cease as soon as the cargo is shipped, but the vessel to have a lien on the cargo for all freight, dead freight, and
The vessel was loaded under the charter, and on the twenty-fourth of October her master, without objection, executed bills of lading for the delivery of the cargo to the charterers or their assigns at the port of Calais, France, a commercial port on the continent between Bordeaux and Hamburg. The master was at the time personally unacquainted with the exact character of the port, having never been there. The harbor is somewhat difficult of access, owing to a bar at the mouth, which vessels requiring the water the Moore. did whim loaded can only pass at spring-tide. The dock in the harbor, withiI;l which, when in repair, vessels. that could get over the bltr wquld always remain afloat, had been for 18 IlJ,onths so much, out Qf re.pfltir as not to be at all stages of the tide sufficient fortqat in this dock vessels like the (lould not :float in the, harb,or more than two or three hours during each tide. , The Moore, with her cargo on board, sevenmilefil:of Calais on the twenty-sepond of November. wa",ij;}ere informed by the pilot that on a(}coantof the ti,de!3 imppssjble to get her into the harbor for eight days. She was then to the downs, 21 miles from Calais, where she la.-y at .until the in ,London was thirtieth of November. In the mean timE!' her in communication with a broker in Calais to find out whenshe;(3()uld be got in. On the 30th, without to hea.;r further; engaged a tug and was about :making, another attempt to, take the vessel over the bar, when he was told that a bark was .agrouncl il.) the mouth of the port and nothing 'could get in or out. He then ashore and protested against the place to which the vessel had been sent under the charter. In hoisting an anchor at the downs SO,jaS to change the anchol'age ground the windlass of the vessel was'broken. In this and other ways she was detained, so that she could not ta,ke advantage of the tides and get over the bar at Calais until DeQemher 15th. She then got into the harbor, but was unable to pass over the sill at the gate of the dock with the water she was drawing. Notice was then for the first time given the consignees of the ..cargo of her readiness to discharge, and on the 17th she began unloading at the tidal quay outside the dock. After enough of the cargo had been taken out to enable her to pass the gates of the dock it was found she could not get a. berth inside at which she could unload for some days, and an arrangement was made with the consignees by wh.ich
tnE¥delivery was to be'completed outside. Under this arrangement was 'finished on the fifth or.ranuary. This suit was begUn against the charterers in personam to recover such damages as the vessel sustained by her detention over and above what was covered by the provisions in 'the charter-party for demurrage, on the ground that Ca,lais was not'a safe port. There is no allegation in the libel of any specific damage to the vessel from gtounding while in the harbor, and no injury to the vessel while she was. detained is shown except the breaking of the windlass in getting up the anchor at the Downs. Upon these facts, which are undisputed, the district court dismissed the libel, and from that decree this appeal was taken· . The question"which, as I think, lies at the foundation of the case is not whether Calais was Ii safe port, or whether if objection had been' made at the time the vessel could have been required to go there under her charter, but whether, having gone without objection, the charterers are liable to the owner, under the provisions of this eharter-party, for her detention while waiting to get over the bar and into'the harbor. Tbe charter-party did not fix definitely the port to -which the vessel was to go. That was to be settled when the bills of ,biding were signed; The liability of the charterers, as charterers, was to cease when !this cargo was shipped. Shipment is complete when the cargo is' 'on board and bills of lading delivered. The vessel could not be requited to go to 'aport which was not, in law, safe. From' this itseemstdmeclear that, so far as the charterers'liability isconoerned, the owner is limited, in respect to his objections to the .port', to the time when he signs'the bills of lading. If he accepts the port and gives bills ·of lading- 'agreeing to deliver accordingly, he .relieves the charterers from the liability under the charter on account ,of the port to whidh his vessel is to be sent, and transfers his claims fot compensation from them to ..the cargo. Should he refuse to sign bills of lading fortha designated port, the question would be at once ,presented between him and the charterers whether the port was a safe one. Hit was, he would be liable to the charterers for a breach of his contract. If it was not, and the charterers refused to load for ':another port, they would be liable to him. If he accepts the port, as ,the bills of· lading are to be construed in connection with the charterparty, his vessel would be bound to go only 80 near t.he port as she could always float with safety, and the consignees of the cargo could be required to accept. a delivery of the cargo there." Demurrage would begin on the arrival of the vesseL at that place and an offer to deliver
THE MAGGIE MOORE.
there. If the consignee refused to receive the delivery at that place, with the extra expense incurred by the vessel he would be on that account. Such I understand to be the effect of the cases. Capper v. Wallace, L.R. 5 Q. B. 163; and The Alhainbra, in the court of appeal,. London, decided on the twenty-fifth of March last, a newspaper report of which has been furnished me. By signing the bills of lading the owner, through the master, agreed with the charterers that Calais was a port to which the vessel might be sent under the charter. His compensation, after that, was confined to such as he he thus conceded was entitled to upon the delivery of the cargo the charterers had rightfully shipped. It is contended, however, that, as the master was ignorant of, the port to which the shipment was made, the exact character, of owner is not bound by his acceptance. The master was the agent of the owner to receive the shipments under the charter and sign the bills of lading. He ,could not alterthe terms of the charter-party,but he was the representative of the owner in performing whl:l!t'it had been agreed should be done. If the owner wouidhave been :bound if he had personally accepted Calais as a safe port unde:r the charter, ,CWl1d he is bound by what has been done by the master. The not change the charter-party and agree, iI;leXpress go tO,an unsafe port; but when a shipment was,tendered him under ,the, charter, for delivery at a well-known commercial port like. eaIai,fI' to which vessels were.accustomed to go, it was his duty to gecidefor owner whether to sign the bills of lading or not.. Jf he refused accept the shipment and carry under the charter, his II breach of the contract, and b,ound the owner for dallfages in designated port was in fact a :lafeone. So, inmY·9pinion, accepted, he bound the owner to deliver as the, (lbtLl:ter was the duty of the owner to decid,e when the. was ma,de whether it should be accepted under the charter. t,he master to perform that duty. The master decided to accept. [ ,-\,}lat decision bound him. The risk of the incompetency of themasteJ; on the owner and not the charterers. . . I am entirely satisfied that the court below was right, and a decree may be prepared dislllissing:tbe,libel.
FEDERAL REPORTER. THE W.
(OiJrt>Uit Court, E. .D. New York.
June 28, 1881.)
The cargo in question was shipped under a charter-party, wherehy the master engaged that in and during the voyage the vessel should be "well fitted," and" that he would take and receive on board all such lawful goods and merchandise" as. the other party, to the contract should think fit to ship. The cargo shippedwas almonds in the shell, in sacks; out of the shell, in bags. The vessel on her outward trip had carried a cargo of petroleum, in barrels.' N othillg was . said in th'echarter-party about petroleum, but bOth parties knew when they signed tIle charter-party, before the outward voyage began, that she was loaded with such cargo. (On the outward voyage petroleumJeaked out from barrels in the hold and from barrels in the hetween-decks. .The flavor and odor of petroleum imparted to the almonds while they were in the vessel. The damage might have' arisen'from storing the almonds in contact with parts of the vessel containing petroleum, or with dunnage having petroleum in it or on it; or from the drip of the sweat of the hold, carrying the odor and flavor of petroleum it. Held:' (lJ This damage did not arise from a peril of the sea: (2) the cO'll.tract was to provide a vessel flt to carry such a cargo as was actually car. ried,and the vessel provided was one unfit for this purpose.
In Admiralty. Beebe, Wilcox cf: Hobbs, for libellants. Benedict, Taft <t Benedict, for claimants. BLATCHFORD, C. J. The cargo in question was shipped under a charter-party of the vessel to the libellants, whereby the master engaged that in and during the voyage the vessel should be "well fitted" "with every requisite" "for such a voyage," and that "he would take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise" as the libellants might think proper to ship. The charter was for a gross sum, and the libel· lants engaged to furnish "a full cargo of merchandise, or sufficient for ballast." The cargo shipped was almonds in the shell, in sacks; almonds out· of the shell, in bags; filberts in sacks; capers in vinegar, in barrels; red wine in barrels; and salt in bulk. The charterparty provided that the master should sign bills of lading without prejudice to the charter-party. Three bills of lading were signed by the master for said cargo, each for a part of it. Bill No. 1 states that the master has received the goods on board the vessel "in good condition," and the master promises to deliver the goods "in the same condition," "and so to accomplish it" he binds the vessel "according to custom and the laws of commerce." Bills Nos. :2 and 3 state that the goods are shipped "in good order and well conditioned," and that they are "to be delivered in the like good order and well condi-