BROWN 'V. HICKS.
811
way fitted. for the voyrtge." Kinney was' not previously known to the charterer, and it is clear that the personal services of Kinney as master were not an inducement to the contract. The description of "Kinney, master," as the "party of the first part," is not a warranty that he shall sail as master on the voyage referred to, but only that he was master at that time and competent to make the contract. The case is therefore the same in effect as if the owners had been the persons named as parties of the first part, with no mention of the master's name; and, in that case, it is clear that a change of master by the owners after the charter was signed would not have been a breach of any express or implied warranty. By the French Code de Commerce, § 273, it is required that the master's name shall be stated in the charter. Nevertheless, even under such a requirement of law, it is held by the French courts that unless the personal services of the master named were an inducement to the contract, a change of master before sailing does not entitle the charterer to rescind the can· tract. 1 Valroger, Comm. du Code de Com. § 986; 2 Va.lroger, Comm. du Code de Com. § 679. Much stronger is the case for the owners where there is no law requiring a.ny statement of the master's name, and where the usual form of charter·parties does not embrace any such statement. See Mac!. Law Shipp. 360. 'fhe former mate of the vessel was, in this case, duly appointed captain for this voyage. He signed the bill of lading for thE\ lumber as master, and he is described as "master" in it. He was master for this voyage, and the evidence is that he was fully com· petent. I cannot sustain the libel on either ground, and there must be judg. ment for the defendant, with costs.
BROWN 17. HICKS.
(CirCUit Court, D. Massachusetts. August 26, 1885.)
1.
MASTER-WHALING VOYAGE-AGTlEEMRNT-REOALLJNG VESSEL-DAMAGES.
B. entered into an agreement with the agent of the bark Andrew Hicks .. to proceed from the port of New Bedford to Mahe, Seychelles islands, steamer, and on his arrival there to take charge as master of the hark Andrew Hicks, and perform a whaling voyage in said hark not exceeding three years in duration. and return with AMid hark to the port of New Bedford" and the agent agreed to pay him" the one-fifteenth lay or share of the net proceeds of the cargo obtained by said hark during the term of his service as master thereof." The voyage not proving successful, the agent recalled the hark before the expiration of three years. Held. that the contract should he construed to mean that the voyage was to last three years unless its purpose was accomplished within" shorter period, and that B. was entitled to recover damages for a breach of the agreement under the circumstances of this case.
by
812 2.
FEDERAL REPORTER.
Sum-PROFITS IN LmUOF WAGES-PARTNERSHIP.
Where the master of a ship contracts to receive Ii certaIn proportion of the profits of the voyage in litm of wages, tllis does not constitute him a partner with the owner.
Admiralty Appeal. See 8 Fed. Rep. 155. W. C. Parker, for appellant, Hoswell Brown. W. II. Cobb, for appellee, Andrew Hicks. COLT, J. This is a libel in personam brought by the master of the bark Andrew Hicks against the owner for an alleged breach of contract. The libelant shipped as master under the following agreement between himself and the respondent: "ThiS agreement, made this day by and between Andrew Hicks, agent of bark Andrew Hicks, of Westport, state of Massachusetts, and Hoswell Brown, of :Fairhaven, state aforesaid, master mariner, witnesseth: that the said Roswell Brown hereby agrees to proceed from the port of New Bedford to Mahe, ceychelles islands, by steamer, and on his arrival there to take charge, as master, of the bark Andrew Hicks, and perform a whaling voyage in said bark not exceeding three years in duration, and return with said bark to the port of New Bedford. For and in consideration of said services as master the said Andrew Hicks, agent, hereby agrees to pay the said Brown the one-fiftee11th lay or share of the net proceeds of the cargo obtained by said bark during the term of his service as master thereof." On August 31, 1877, the libelant left New Bedford for Mahe, and on December 15th he took charge of the vessel. January 10, 1878, he went to sea and returned to Mahe, February 3d, when the second mate was discharged. February 14th, he went to sea again, cruising off Mahe banks, and returned a few days afterwards to Mahe to get deserters. On February 23d, when ready for sea again, Samson, the first mate, refnsed to go, and was discharged. The vessel put to sea on March 4th, and cruised until July 29th, when she arrived at Helena. On July 30th she started for New Bedford, arriving October 19th. On February 24, 1878, the libelant wrote to the agent as follows: "I have decided to make St. Helena my next port. Shall be there by the last of July, when I shall expect to hear from you. I should say, if I might be allowed to suggest, that you send me both It mate and a second mate, although I can get along very well with Murray for second mate; the difficulty will be to get some one to fill his place. * * * I feel that it is absolutely necessary for the benefi t of the voyage that a mate should be sent out. It is possible I may get a very good man at St. Helena to take Murray's plaee, although I think it would be the better plan to send a man, providing you have a chance to send them direct to St. Helena by a sailing vessel. *. * * I might almost say, two months and a half I have had nothing but vexations and trials . ·Just as I thought I had everything fixed for the next six months, Samson gives up. By this circumstance everything is reversed at ollce." · On receipt of this letter the respondent, after making inquiries · with a view to getting men to go out and join the 'vessel, and not finding anyone he deemed suitable, consulted with his co-owners, and all agreed it was best to order the vessel home. He accordingly, ·on April 25. wrote to the master that he wished the vessel to proceed
BROWN'll. IDCKB.
813
directly home, as he thought it best for all concerned. This letter was received July 29, and on the same dav the libelant wrote the respondent: "I very reluctantly comply with your request; your views may be right to a certain extent, as I am situated now, for we have seen sperm whales three times since we left Mahe banks, but taken no oil. I" believe if we had been properly manned we should have made a good show, although the chances were not the best. * 'I< 'I< But as you think it best for all concerned that the ship shall return to New Bedford direct. T will brill!! her there as fast as wind and weather will permit."
Under these circumstances can the libelant recover damages? The contract was to perform a whaling voyage not exceeding three years in duration. A contract to perform a whaling voyage is a COI1tract to cruise for whales and obtain a cargo of oil, if it can be done within the period prescribed. It does not mean a voyage to the whaling grounds and return. According to the size of the vessel, it may take three or five years to obtain a cargo. It is necessary that there should be some limit as to time, otherwise the ship might be. kept away from home indefinitely. We think the fair interpretation of the contract is that the voyage was to last three years, unless its purpose was accomplished within a shorter period. The owner may have a right to recall the vessel and terminate the voyage at any time within the three years, or before the purpose of the voyage is accomplish,ed; but, if he does this, he must show proper cause, or he should be held liable upon his contract with the master. Parsons v. 'l'erry, 1 Low. 60. The relation of the libelant to the owner was not that of partnership, but of servant and master. Where the master of a ship contracts to receive a certain proportion of the profits in lieu of wages, this does not constitute him a partner with the owner. "There is no pretense, therefore, for saying that the captain was a partner because his wages were to be regulated and paid by reference to a cal 'llation on the profits of the adventure," says Lord in ][air v. 4 Maule & S. 240. See, also, 2 Pars. Shipp. & Adm. 57; Story, Partn. § 42; Baxter v. Rodman, 3 Pick. 435; PMsons v. TeTry, 1 Low. 60. A termination of the voyage by the owner, under the circumstances presented in this case, would not, in our opiuion, prevent the master from claiming damages for breach of contract. It was the duty of the owner to provide the ship with an outfit suitable for the successful prqsecution of the voyage, and while he might conclude it was best to terminate the voyage, because he believed it would prove unsuccessful, yet this would not relieve him from his contract unless the master was to blame. We fail to discover any fault on the part of the master, nor does the respondent seek to charge him with blame, but takes the position that it was best for all parties in interest that the voyage should end. We think the libelant is entitled to damages, and that the measure
814
FEDERAL
REPORTER.
of damages is the sum which his lay would probably have amounted to, calculated upon the basis of the average catch of vessels on the ground from the time the libelant received directions to proceed home to the expiration of the three years, deducting the time it would take for the return voyage to New Bedford. Parsons v. Terry, 1 Low. 60. The decree of the 'district court is reversed.
THE
LORENZO D. BAKER. A 12, 1885.)
fDistriol, Court, D. Massllo'wsetts.
COLLISTON-STEAM-8HIP-SCHOONER-FOG-SPEED-CAPlIl COD.
On examination of the evidence in this case, held, that the steam-ship was not going at an immoderate speer! at the time of the collision with the schooner, and that the libel should be dismissed, but without costs.
In Admiralty. J. C. Dodge & Sons, for libelant. c. T. Russell, Jr., and Geo. A. King, for claimant. NELSON, J. This collision between the schooner Dresden and the steam-ship Lorenzo D. Baker happened in a thick fog, some 15 miles off the coast of Cape Cod, between Highland and Nauset lights, on the morning of the eleventh of September, 1884. At and for some time before the collision the" fog was so dense that a vessel could not be seen more than ahundred yards off. The Dresden was on a voyage from Shulee, Nova Scotia, to New York, with a cargo of piles. She was close.hauled on the wind, on the starboard tack, with the wind moderate from S. E. by S., her course being about due east. The steamship Lorenzo D. Baker was on a voyage from Port Antonio, Jamaica, to Boston, with a cargo of fruit. She sailed from Port Antonio on September 3d. On the evening of September 10th she encountered thick fog. Up to that time her speed during the voyage, under both steam and sail, had been some eight or nine knots. As she entered the fog her sails were taken in, and she was slowed to one bell, and she continued to run at that reduced rate during the night, but stopping every half hour to sound. Her last sounding before the collision was taken about 20 minutes after 6 o'clock of the morning of the 11th. Before she had again fully recovered her ordinary half-speed, the Dresden was seen over her port bow, moving directly across her bo'Y. Her 'engines were instantly reversed at full speed, and her wheel put hard to port. This saved the Dresden from being run down, but did not prevent a collision. She struck the steamer at about right angles, end on, on the port side, near the fore-rigging. The Dresden was badly damaged. The Baker suffered no injury. No fog-horn was hea'l'd on the steamer from the Dresden. The only fault attributed to the steamer' was that she was not going at a moderate speed.
