98 FEDERAL REPORTER.
ing the favor always shown in admiralty to seamen, I think that the agreenlEmt here:made should not be construed to deprive them of their lien·
SUGAR-REFINING CO. T. MADDOCK. (Circuit Court of Appeals, First Circuit. No. 279.
SmI'PING-LIABILITY OF CARRIER FOR SHORTAGE OF LADING SIGNED BY MASTER. , OF BILL
May 12, 1899.)
Tbe rule tbat tbe master of a ves,sel bas no autbority by virtue of bis position, either actual or apparent, to sign abll! of lading for cargo not actuallyrecelved,on board, applles' wben tbere Is only Ii deficiency in part tbrougb mistake, and tbe owner cannot be beld Hable, eitber by the original consignee or an indorsee of tile bill of lading, for such a shortage, where the qUll;ntity actually received is delivered.
Appeal from the District Court of the United States for the District of Massachusetts. Charles T. Russell and Arthur n.Rlissell, for appellant. Eugene P. Carver (Edward E. Blodgett, on brief), for appellee. Before ,COLT and Circuit Judges, and WEBB, District Judge. Circuit Judge. In this case, the American Sugar-Refining Company purchased, in Cuba, a quantity of sugar in bags, and paid in full therefor. The parties of whom it purchased shipped the sugar by the steamer Salamanca, anll took a bill of lading for a precise number of bags named, which also gave the weight. The bill ()f lading contained also the following words: "Weight and contents unknown." 'It acknowledged that the sugar was shipped by the parties of whom the cargo was purchased, and it ran in favor of the American'Sugar-Refining Company and its assigns, deliverable at Boston. !tis admitted that the steamer delivered all the sugar which she re<:eived, but the delivery was short of the bill of lading 37 bags. There was no claim that there was any shortage in weight. The American Sugar-Refining Company claims to be allowed the value of 37 bags, estimated at the average weight per bag of the whole cargo, and this is the issue in the case. 'l'he proceeding below was by a libel in personam in the district court, and the decision was in favor of the owner of the vessel. 91 Fed. 166. In The Freeman, 18 How. 182, it was held that neither a vessel nor her owners were liable in that case in favor of a bona fide holder of a bill of lading, it having been shown that none of the gootls called for by it were shipped.. The American Sugar-Refining Company, however, maintains that there is a substantial distinction between a case where a bill of lading is issued fraudulently, or where no merchandise called for by it was in fact ,shipped, and , the ease at bar, where it is claimed that the master erred innocently in his count, and there is only a small shortage in what the l!Vl'lllllents call fOl·. It is not dellie rl that, as towards an,
AMERICAN SUGAR-REFINING CO. V. MADDOCK.
original holder of a bill of lading, it stands as a mere receipt, so far as the amount of merchandise called for by it is concerned, and is therefore subject to explanation; but it is claimed that in the present case the American Sugar-Refining Company stands in the position of an innocent indorsee of a bill of lading for value, and that the vessel is therefore estopped so far as concerns the shortage. The American Sugar-Refining Compan: is not in form an indorsee, and it does not appear distinctly that it made payment to its correspondents in Cuba on the faith of the bill of lading; and it may well be, in any event, that it should deal for the shortage with the parties of whom it purchased the sugar and who shipped it, and not with the vessel. However, the case has. been submitted by both parties on the theory that the American Sugar-Refining Company stands in the position of an innocent indorsee for value. With reference to the distinction attempted to be made by the American Sugar-Refining Company, none of the authorities relied on by it lwstain it, except the local decisions of the state courts of New York. With those exceptions, the entire weight of authority, which ought to influence us, recognizes no distinction, and we perceive no principle of law which should require them to do so. The Freeman, already referred to, treats of this question. At page 191, the opinion says that the master has no more an apparent unlimited authority to sign bills of lading than he has to sign bills of sale of the vessel. It says he has an apparent authority, if the ship be a general one, to sign bills of lading for cargo actually shipped, but his act does not bind the owner, even in favor of an innocent purchaser, if the facts on which his power depends do not exist; and the court adds: "It if! incumbent upon those who are about to change their condition upon the faith of his authority to ascertain the existence of all the facts upon which his authority depends." It also says it takes the law to be now settled by several cases cited, among the rest Grant v. Norway, 10 C. B. 665, thus approving that decision. Grant v. Norway (decided in 1851) is a case of vel'y great authority, having been heard in the common pleas by Chief Justice Jervis, Justice Cresswell, and Justice Williams. At page 688 the opinion says that the court ('annot discover any ground on which a party, taking a bill of lading by indorsement, would be justified in assuming that the master had authority to sign such bills, whether the goods were on board or not. It also states that it is generally known that the master derives no such authority from his position as master, so that the case may be considered as if the party taking the bill had notice of an express limitation of his authority. On page 689 it says:
"So here the general usage gives notice to all people that the authority of the captain to give bills of lading is limited to such goods as have been put on board; and the party taking the bill of lading, either originally or by indorsement, for goods which have never been put on board, is bound to show some particular authority given to the master to sign it."
Another leading case is McLean v. Fleming, L. R. 2 H. L. Sc. 128, decided in 1871. The facts were almost like the case at bar, in that the bill of lading was taken out by the persons from whom the merchandise was purchased, running to the purchaser. It covered a
bones. There wMa nominal short'l'lgeof 210 tOilS, and already dtedwere applied; the lord' chancellor stating, at pa:ge 130, 'that' the 'master has no authority to sign bills of lading fol' a greater qlliUltity'of goods thanllctually put on board. Grant v. NorwaYand'McLean v. Fleming are usually cited in England wherever thIs is referred to. The latter case especially is like the one at bar; not only in the' circunJ..Stances already stated, but also in that no fraud on the part of the master was; alleged. In Cox v. Bruce, 18 Q; R Div;147 (decided by the court of appeal in 1886); the same rule was given as to an indorsee of a bill of lading; Lord Esher, M.'R, stating, atpage 152, the effect of the decisiollin Grant v. Norway to be, not merely that the captain has no authority to sign a bill of 'lading In respect of goods not on 'board, but that the nature and limitations of his authority are well known among mercantile persons. Carv-. Qa'rr,by Sea (2dEd,; 1891), in section 69, states the rule follows:" "This description and statement of quantity are evidence the shipowner that goods of that kind and amount have been But they are not conclusive. ,He may show that they are incorrect, whether· the claim be' by consignees on whose account the shipmeritwas made or by indorsees of the bill of lading." It is also added: "And this does not depend upon words of reservation, such as 'weight ,a:n.d contents unknown,' being inserted in the bill' of lading." This last expression shows, if it was necessary to show it, that the presence of like words in the bill of hiding in Buit does not affect the case. Abb. Shipp. (13th 'Ed.; 1892), at page 368, states the same general'ru!e,and adds;, e'Ven as against an indorsee for value: "If the quantity of goods shipped is uncertain, the master cannot bind his ownershy 'acknowledging receipt of a specific quantity of goods." McLean 'V. Fleming is eited in support of this proposition. Macl. Shipp. (4th Ed.; 1892), lays down the Bame general rule in broad tel'IDs, citing McLean V. Fleming and Grant v. Norway, without making any distinction between fraud and mistake on the part of the master, or between cases where there is no shipment or only a partial shipment ' Among the cases cited by the American Sugar-Refining Company, we need notice only Shepherd V. Naylor, 5 Gray, 591, Sears V. Wingate, 3 Allen' 103, and 1 Pars. Shipp. & Adm., at page 190, where these cases a:tereferred to. These authorities discuss the power of a master to bind the owners by statements in' bills of lading as to the rate of freight and certain· other matters, and also discuss under what circumstances the master himself may be liable for an excess statement in a bill of the amount shipped, but, on the question before us, they weigh against the American Sugar-Refining Company instead of for it. Other citations relied on are mere dicta, uncertain in expression, and of no weight as against the mass of authorities to which we have referred. The libel was filed in the court below to recover a balance of, against which the American Sugar-Refining Company Bought, to recoup the shortage which we have The decree belo w was in of the vessel, and it should be affirmed. The decree of the district 'court is affirmed, with lnterest, and the costs of appeal are awal'd'ed 'to the appellee. '. .'
PEACOCK V. THREE MILLION FEET OF LUMBER.
PEACOCK et al. v. THREE MILLION FEET OF LUMBER et a1. (District Court, N. D. California.. May 8, 1899.)
SALVAGE-NATURE OF SERVICE-RIGHTS OF CHEW.
A steamer towed a raft of lumber, found adrift on the sea, to a port, where, on communicating with the owners of the vessel, the master was directed to let go of it, and proceed on his voyage. He left the raft In a comparatively safe place, in charge of third persons, who agreed to give him a part of whatever they might receive for it. They sold the raft, and the purchaser had it towed to San Francisco, where he resold it to the claimant. Held, tbat the crew of the steamer had a claim for salvage services which they were entitled to enforce against the lumber, their right not being affected by the action of the owners in abandoning the raft, nor by the agreement of the master for a share of its proceeds, though such agreement deharred the master from recovering. The personal services of the crew having been comparatively small, and rendered without danger, an allowance of $120 was made them, the value of the lumber after its delivery in San Francisco being about $7,200.
SA1>lE-AMOUNT-RECOVERY BY CREW.
This was a libel on behalf of the crew of a steamer to recover for salvage services. D. T. Sullivan, for libelant. Andros & Frank, for claimant. DE HAVEN, District Judge. On September 30, 1898, the steamer Whitesboro, bound o.n a voyage from Mendocino to Port Harford, discovered, adrift upon the ocean, the raft of lumber mentioned in the libel, and made fast to and towed the same into the port of Santa Cruz. The lumber referred to had, some time before being thus picked up, broken off from a larger raft while being towed to the port of San Francisco.· Upon arriving at Santa Cruz, the master of the Whitesboro communicated with the owners of the steamer, and received orders from them to let go of the raft, and proceed upon his voyage. The master thereupon gave possession of the raft to some fishermen under an agreement that he was to have a certain share of what might be received in the event of its being sold by them, or claimed by its owners. It was thereafter sold by the fishermen, for the sum of $500, to one Cowell, who caused the same to be towed to the port of San Francisco, and there delivered to the claimant, upon the payment by the latter of the sum of $2,500. The claimant has alBo paid to the owners of the Whitesboro the sum of $500 on account of the services rendered by that steamer in taking the raft into Santa Cruz. The raft, when delivered in San Francisco, was of the value of about $7,200. The port of Santa Cruz is so situated that it is only protected from northerly winds, and for that reason cannot be regarded as a secure place for a raft of lumber to remain at anchar far any great length of time, but on the day when the raft referred to was brought there the wind was from the northwest, the sea. was smooth, and such a raft, properly anchored in that port, would not have been considered, nor was this one in fact, in any immediate