328
FEDERAL
RE:P9RTER.
THE WILLIAM MARSHALL. OAIN
and others, Owners, etc., v. CHURCH and others. (DZ8triCt Oourt, D. Maryland. 1886.)
1.
DEMURRAGE-CONSIGNEE AND SHIPPER ONE PERSON-LIABILITy-AOTION IN PERSONAM. '
The respondents. ice-dealers In Baltimore, purchast'jd ice to be delivered' free'on board, in the Kennebec river, the sellers agreeing to procure the vessel, the respondents to pay the freight. Held, that the respondents, being both consignees and shippers, were liable in an action in pIJI'sonam for damages for unreasonable detention of the vessel upon arrival in Baltimore, before the discharging of the ice was commenced.
2. SA,ME-DISPATCHINGToo MANY VESSELS-PRINCIPAL AND AGENT.
The detention was caused by the accumulation of vessels in Baltimore consigned to respondents, and resulted from the sellers of the ice dispatching too many vessels at about the same date. Held, that the dispatching of so many vessels, even though contrary to respondents' instructions. was the act of persons acting in their behalf, and was no defense to libelants' demurrage for damages for detention.
(SyliabUB by the Oourt.)
In Admiralty. Robert H. Smith, for libelants. R. M. Venable, for respondents. MORRIS, J. This is a libel in personam to recover compensation for the detention of the schooner William Marshall in discharging a cargo of ice in the port of Baltimore. The schooner, with a cargo of 540 tons of ice, consigned to the respondents, Church, Lara & Co., sailed from the Kennebec river, August 12, 1886. She arrived in Baltimore early on the morning of the 20th, and reported to the consignees. On the 28th, discharging not having yet commenced, the master notified Church, Lara & Co. that from the 30th he woul<i expect and require compensation for delay. On September 2d discharging was commenced, and was completed in two days. The libelants claim compensation for five days' detention from August 30th to September 3d. There was no formal charter-party, and no agreement for demurrage; the only contract being that expressed in the bill of lading, which provides that the ice is to be discharged by the consignees, with the assistance of the crew. The legal implication, therefore, was that the ice was to be discharged in a reasonable time, having regard to all the circumstances proper to be considered. Bacon v. Erie r:t Western Transp. Co., 3 Fed. Rep. 344. It is not disputed that the detention was far beyond the time actually required for discharging the ice. After a voyage consuming only eight days, the schooner lay in port for 13 days before she was taken to respondents' wharf, and the discharging which was then commenced was completed in two days.
THE WILLIAM MARSHALL.
329
Respondents put their defense upon two grounds: First, that they were merely consignees of the ice, and as suoh, there being no agreement for demurrage expressed in the bill of lading, there can be no implied liability on their part to pay for detention of the vessel which occurred before they began to receive the cargo; second, that an action against them as consignees, if maintainable at all, can only be sustained upon proof of culpable negligence on their part, and that they were not in fact guilty of negligence, because they were prevented from sooner receiving the ice, although their facilities were ample for the ordinary requirements of their business, by circumstances for which they are not responsible. The circumstances relied upon in the answer are that the respondents having, as was well known to libelants, but one wharf in the port of Baltimore at which ice could be discharged, t·here arrived an unusual ilumber of vessels loaded with ice, consigned to them, just befOl'e the arrival of libelants' schooner, so that they were obliged to discharge four other vesselsbefore libelants' schooner could have her turn; that the arrival of so many vessels about the same time was not through any fault of respondents, but was because the persons from whom they had pllrchased the ice liad; not complied with respondents' instructions with regard to the dates for dispatching the. vessels. The first ground of defense is not sustained by the proof. The respondents were not merely consignees, but were owners of the ice when it was put on board, and, in fact, the vessel was procured for their account. They had contracted for the ice with ice dealers in Maine, at a certain price per ton, free on board in the Kennebec river; the vendors agreeing to procure the vessel, and deliver the ice on board, from tittle to time during the season, as respondents might direct, the respondents to pay the freight. The bill of lading states that the ice is shipped for account and at the risk of the respondents. Under an ordinary bill of lading there is an implied agreement by the shipper that the goods shall be received within reasonable time after tender at the port of destination, and in admiralty there is a lien given upon the cargo for damages caused the ship by unreasonable delay in receiving them. The Hyperion,2 Low. 93'; S. C., on appeal, 1 Holmes, 290; Fulton v. Blake, 1> Biss. 371; Hawgood v. Tons of Coal, 91 Fed. Rep. 681. The shipper is a party to the contract of affreightment, and is accountable for any obligation implied .by it. Baton v. Erie et Western 'l'ransp. Co., 3 Fed. Rep. 345; Sprague v. West, 1 Abb. Adm. 548. The goods beingsubjElC:lt to a lien for the damages from detention of the vessel, and having been the property of the consignee from the inception of the voyage, if he receives them with notice of the claim, there can be no good reason suggested why he should not be held personally answerable. 'rhe responsibility cannot be placed upon the ice-dealers in Maine who put the cargo on board, for they might well defend themselves
330
FEDERAL REPORTER.
by showing that the cqntract of affreightment was made on behalf of the consignees, and that they ac'ted as agents, .as indicated by the language of the bill of lading. Stafford v. Watson, 1 Biss, 437. Assuming that respondents, being the owners and shippers as well as the consignees of the cargo, may be held to answer in personam for an unreasonable detention of the schooner, it remains to consider whether they were without fault in having such an accumulation of vessels arrive that they WElre prevented from sooner discharging her. In Gro88V. Beard, 26 N. Y. 89, which was also a case of goods shipped by consignees' agents, it was held, at common law, that evidence going to show,that an accidental break in a canal and a storm on one of the lakes had combined to cause a fleet of vessels to come into port together,which otherwis.e would ,have come singly, at inter.vals, was proper to go to the jury; and that from it they might find that the oonsignees had been without fault, under aIr the circumstances, in suffering SUchan accumulation of vessels as had. caused the detention This rule has not been uniformly followed in admiralty, (Es8eltyne v. Elmore,7 Biss. 69;) but, assuming it to beapplicable to this case, there is no proof whatever of any unexpected or unforeseen accidental occurrence, beyond the control of the respondents, which occasioned the accumulation of vessels which detained reo spondents'schooner. There storm, of navi· circumstances of any kit;ld. The accumulation gation, no was occasioned by the fact that the parties from whom respondents had purchased ice, acting on, respondents' behalf in shipping it, had dispatched too great a number ,of vessels abou.t the same date. Rethat this was contrary to their instructions, but it spondents was the act of agents selected by themselvea, and for which they are answerable to. the libelants. It certainly was .not a matter beyond ordinary human foresight, andis to libelants' claim. The counter-claim of the respondents for loss from melting of the ice, because of alleged neglect of the officers of the schoone1' to have her kept pumped free of water, is not sustained by 'the weight of e:vidence. No mention of this demand was made until after this libel was filed. There is direct testimony that the schooner was kept pumped free ofwater, and there is,enough in the fact that the ice was in the vessel during the hot weAther, from August 12th to September 2d, to account for the loss of weight. The libelants are entitled to a decree for freight, and demurrage for five days. .
JOLIET STEAM-SHIP
co. fl.
YEATON.
SSl
CO. ".'YBATON.' (DE8t1'ic1 Oo'lVl't, B. D.New York. July 8, 1886.
LO.umnms ,
011' GooDs-DAMAGE TO CARGO-DUTY 011' Qll'lRBS EXTRAORDINARY PROTECTION.
SmP Woo
CARGO
RD-
Where cargo about to be shipped needs extraordinary protection, it is the duty of the ship-owner to provide the stevedore wi.th the means for such protection.
.. 8.um-IHPROPER STOWAGE-OWl'l'ER'S KNOWLEDGE 011' METHOD 011' STOWAGIIlWB:tLlTY 011' STEVEDOO.
Certain hogsheads of molasses were sent to a vessel for shipment. The 'YesselwaB already stowed with bacon. With the knoWledge, and by the implied direction, of the agent of the vessel, themol88ses was stowed above . \he bacon, no tarpaulins or other means of protection for the bacon being , furnished to the stevedore. On the voyage the leakage from the molasse! inlured the bacon, and the ship-owner, having made good the 1088, brought thil luit against the stevedore to recover the money 10 ,paid. Held, that the IteVedare Wal not liable.
E. Oanverl and Oharle. Stewart Da"i,on, forUbelant. John H. Kemble. for claimants. BENEDICT, J. I am of the opinion that the damage descnoed in the libel. 'being damage to bacon in boxes canaed by molasses, arose frommola,ss6s leaking out of the holes, and running upon the bacon during the voyage. It is t'tue that in discharging the cargo one hogshead of Jilolasaes slipped the hooks, and of its contents 100 gallons, perhaps, feU upon the boxes of bacon in the hold'below; but I do not think it is possible that such damage to 450 out of 580 boxes as is proved in this caaecould have arisen from the molasses which ran from the single hogshead which broke while discharging. Such injury as the proofs show to have been sustained by t},lis bacon must, _as it seems to me, have been caused by leakage from the 50 puncheons of molasses which were during the voyage stowed above the bacon. No doubt it was bad stowage to put half of such a shipment of molasses over the boxes of bacon. Leakage is a necessary incident to the transportation of hogsheads of molasses, and damage from that cause to the bacon stowed below molasses would be a natural result of such stowage. If, then, the defendant, as being the stevedore who undertook the stowing of the cargo, is responsible for the placing of those hogsheads of molasses over the bacon, I am unable to see any way of escape for him from liability for the damage that resulted. But I am of the opinion that. under the circumstances, the cannot be held responsible for pla.cing the molasses where he did, because of the fact that, when the molasses came down to the ship, the ship was full, the bacon already stowed, and there was no other place to put the molasses I
In Admiralty.
Report-d by R. D. '" Wyllya Benedict, Esqs., of the New York bar.
