70S

I'BDEBAL REPORTER,

vol. 37.

THE HANSEN

G. P.

TRIGG.

et al.

'lJ. THE

M. M.

CHASE.

SAME 'lJ. THE

G. P.

TRIGG.

(District Court, B. D. New York. 1.

February 6, 1889.)

SHIPPING-CARRIAGE OF GOODS-SlllIZURE BY LEGAL PROCESS-DUTY OF CAR' mER. . A carrier by sea, whose cargo >:\ attached by legal process, is bound to in-

terpose in the suit, and to protect the interest of a foreign cargo-owner, by all necessary and appropriatemeans under the local law, until the consignee is properly informed, and has reasonable opportunity to take on himself the burden of litigation; and to give prompt notice of the attachment, and any other necessary information. . .

2.

SAME.

Bills of Jading were issued for cargo taken on board two vessels. Drafts were drawn by the consignor against the goods, which were negotiated, and accepted on the faith of the bills of lading. The goods were afterwards attached at the port of loading in a suit against the consignor, and removed from the vessels against the master's protest: but prompt notice of the attachment was not given to the consignee. nor were such means taken as the state laws specially provided to defend the goods or to secure the consignee's interests. which means. if taken, might have averted the seizure. Held, that the vessels were therefore liable to the consignees for non-delivery of the goods.
OF LADING-IMPLIED EXCEPTIONS.

8.

Semble, under the decision in Stiles v. Davis, 1 Black. 101, a seizure by judicial process of goods in the posllession of a carrier. not brought about by laches or connivance on the part of the carrier. and of which he gives prompt notice to the owner, is one of the implied exceptions in the carrier's contract, limiting, pro tanto, the rule of the common law that the carrier is liable for non-delivery under the bill of lading through any causes not excepted therein: but this does not absolve the master of a vessel from his maritime duty to tervene for the protection of Ii foreigJ;1. owner's interests.

In Admiralty. Libel fo1' cargo attached under legal process. In August, 1888, P. M. Kane, at Eastport, Me., shipped upon the above-named schooners three lots of sardines, consigned to the libelants in this city, for sale on commission; one lot on board the Trigg on August 9th, and two lots on board the Chase on August 13th and 16th. Bills of lading were delivered to the shipper on the same dates, making the goods deliverable to the libelants at this port. Kane, on the same days, respectively, drew upon the libelants against the goods consigned, notified them thereof by letter, inclosing the bills of lading, and on the same day got the drafts cashed at the Frontier National Bank, at Eastport. The drafts were each payable at five days' sight to the order of the cD.shier of that bank. They were presented in due course, and, upon the faith of the bills of lading previously received by the libelants,
1

Reported by Edward G. Benedict, Esq., of the New York bar.

THE Y. M. CHASE.

'109

were accepted as follows: August 14th, draft for 8450; August 16th, draft for 8400; August 20th,araft for $200. The first draft was against the Trigg's bill of lading; the last two against those of the Chase. .All were paid at maturity. On August 20th, all the sardines in question were seized and removed from both schooners by the sheriff of the county, at Eastport, under a writ of attachment issued out of the supreme court of Maine, in a suit by Blanchard and others against Kane, the shipper, in an action of debt for the sum of $1,100, upon which judgment was afterwards entered at the October term, and the goods sold. The sheriff received the attachment on Friday, the 17th, and his return states a levy f1bout 3 P. M. of that day. On Saturday keepers were put in charge. The master protested against the stated the issue of bills of lading, and much talk ensued with the ::aptains, managing owner, and attaching creditor. On Saturday afternoon, however, it was understood that the attaching creditor would give to the sheriff a bond of indemnity for the removal of the goods, which was done on Monday, the 20th. The first notice to the libelants was a telegram sent them by the managing owner between 11 and 12 o'clock on Monday, stating that Kane's shipments were attached that morning, and that the sheriff was removing the goods. The telegram was received by the libelants late in the afternoon, after the draft of $200 had been accepted. The next morning they replied by telegram that they" held the bills of lading and had made full advances on the goods," adding, "Can you attend to the matter and secure us? Answer." The next day, the 22d, the managing owner replied: "Will do what I can for you. You must send power to make demand for the sardines." Nothing further was done by either party until the arrival of the ers in this port, when they were libeled in these suits for damages for the non-delivery of the goods according to the contract of the bills of lading. The statutes of Maine provide (chapter 81 , §§ 43-45,) that "property mortgaged, pledged, or subject to any lien created by law, and of which the debtor has the right of redemption, may be attached, held, and sold as if unincumbered, * * * if the attaching creditor first tenders or pays to the mortgagee, pledgee, or holder the full amount unpaid of the demand so secured thereon j" that when property attached is claimed by virtue of such pledge or lien the claimant "shall not sue the attaching officer until he has given him at least 48 hours written notice of his claim,and the true amount thereof," and "the officer or creditor may within that time discharge the claim by paying or tendering the amount due thereon, or he may restore the propertYi" that the' officer may give the claimant "written notice of the attachment, and, ifhe does not within ten days thereafter deliver to the officer a true account of the amount due on his claim, he thereby waives the right to hold the property thereon." By section 40, when property attached is claimed by a person not a party, he may replevyit within 10 days after notice given him therefor by the attaching creditor, and not afterwards i and thereafter the attaching officer, without impairing the rights of such person, at the

request and df the plaintiff; mayselIr Kane. had been dealing with the liberants in the same way for some ,time previous; 'and was largely indebted to .them on general account. Wing, Shoudy & Putnam, for libelants. Goodrich, Deadg&Goodrich, for claimants. , BROWN, J., (afte1'atating the facta aa above.) In the case of Stilea v. Da'llia, 1 Black, 101"tihe,supreme court decided that the carrier was not liable in trover for non-delivery to the true owner of ,goods attached and taken from the carrier's possession by the sheriff uneler process against a third party·.' The decision did not turn upon the form of the action. 1he grounds stated in the opinion are that the goods when seized under judicial process are in the custody of the law, and that the plaintiff had mistaken his remedy as to the persons liable. "They should have brought their action," it is said, "against the officer who seized the goods, or against the plaintiff in the attachment suit, if he directed the seizure." Mr. Justice CLIFFORD .in'Wllllav. Steam-Ship ('.0.,4 Uliff. 232, says that such "clearly" was the decision.. This is not at all incompatible with the subsequent qualifications added by the decisions of the tribunals of several of the states, and now generally laid down in text-books, namely, that the seizure must not be brought about by any laches or connivance of the 'carrier, and that he give prompt notice of thl:' attachment. These qualifications seem also to have the approval of Mr. Justice CLIFFORD in the case cited. The whole subject has been exhaustively reviewed by HAMMOND, J., in the case of Rohin8on v. Railroad Co" 16 Fed. Rep. 57, 9 Fed. Rep. 129, where the carrier was held liable for laches after notice of the intent to attach. See Hutch. Carr. §§ 367-375; Schouler, BaBm. §§ 428, 498; Mier80n v. Hope, 2 Sweeny, 561; Ra'uway Co.v. Yohe, 51 Ind. 181; Bliven v. Hudson, etc., Co., 36 N. Y. 403. I feel bound to hold, therefore, that seizure by judicill1 process under the conditions above stated has been added as one of theimplied exceptions in the carrier's contract, limiting, pro tanto, the general rule of the common law that the carrier is liable for non-delivery under the bill of lading through any causes not excepted therein. The further question remains, whether the master, from the time he had notice of the attachment, performed the duties imposed upon him by the maritime law, in the protection of the libelants' interests. The duty of protection is to a certain degree recognized as incumbent upon carriers by land. Hutch. Carr. § 202. The duty M giving notice is one form of this obligation> The general duty of protecting the owner's is, however, more specially applicable to carriers by sea, from the more frequent necessity ofit in maritime commerce; and it has accordingly long been aproJllinentfeature of the maritime law. The powers and the duties of ship-masters arising out of the exigencies of navigation, and the circumstances and out of foreign commerce are much broader than those of <:arriers by land within the kingdom. The master of a. vessel" in all such exigencies, has authority to

'tHEM. M. CHAS"

do whatever is necess!lry to preserve the iIiterests ofa:roreign owner or consignee. He is bound to the exercise of diligence and good faith; to give the owner or consignee timely and needful information; and tf) take his instructions; when practicable. In case of capture or seizure it is his duty to interpose a proper claim, and to defend the rights of the owners of the ship and cargo. . 3· Kent, Comm. *213; Oheviot v. Brooks, 1 Johns. '. 364; Lemon v. Walker, 9 Mass. 404; Hannay v. Et'e, 3 Cranch, 247.' :"In W'Illard v. Dorr, 3 Mason, 166, STORY, J., says, in reference to a seizure at Calcutta: . "He has not only a right, but it Is his imperative duty, w remain by the ship until a condemnation, orallbope of recovery is gone. He is intrusted With the authority and obligation to interpose a claim for the property before the proper tribunal, and to endeavor by all the means in his power to make a just and successful defense. To abandon the ship to ber fate witboutasserting any claim would be a criminal neglect of duty, and would subject him to heavy damages for a wantonsacritice of the property. * * * Hp! duties do Dot, indeed, cease eyenwith condemnation, but he is to act for the benefit of all (',oDcerned. and.· if he should deem an appeal to be expeditmt, be is bound to enter it." . In the case of The Mary AnnGue8t, Olcott, 501, where the libelant, as; in this case, had made advances on the bill of lading, but was'·not the· consignee named therein, the schooner was held liable b:,v BET'rS, J., be-, cause, as he says, the bill'of lading "guaranties to protect the tight of' possession to the shipper and his assigns," and because the master "did· not interpose, as he might have done, in the replevin suit against the' shipper;" and on appeal the decision was affirmed by Mr. Justice NEL-: SON, (1 Blatchf. 358.) Upon the decision in Stiles v. Davis, 8ttpTa, I do not feel at liberty to follow The Mary Ann Guest, so far as to hold the bill oflading an absolute guaranty that the master will protect the consignee's' right of possession. But upon the well-settled rules of maritime law it' is the undoubted duty of the master, upon any interference with his possession, whether by legal proceedings or otherwise, to interpose for the' owner's protection, and to make immediate assertion of his rights and. interests, by whatsoever measures are appropriate at the time and place. To that t>xtellt the master is bound to take part in legal proceedings, and to continue them until,after informing his absent consignee both of the facts and the local law so far· as need be, the owner has a reasonable opportunity to take upon himself the burden of the litigation. The ques-, tionarises under the law of the sea, not of the land. Upon maritime questions,the states are treated as foreign to each other, and the same general obligation is applicable as if the ship were ina foreign country. The general rule is the same, whether the ship and the consignee are nearer or more distant. Its application varies. Where communication maybe had daily or hourly, the duty of speedy notice is the more imperative,and the ship has the corresponding advantage of being able to terminate hetobligations to the cargo-owner the more quickly: I must hold the rf'..spondents answerable in this case both for lachest and because they did'nothing mere protest, without using the

712

FEDERAL REPORTER,

vol. 37.

liminary means that, under the law of the state, were epecially provided to secure the libelants' interests. 1. Timely notice of the attachment proceeding itself was not given. Notice WIlS delayed until the third day Had a telegram been sent on Friday, or even on Saturday afternoon, instead of Monday forenoon, the acceptance of the draft of $200 would have been prevented. 2.. No such notice of the libelants' claim and lien as the statutes of Maine provide for was given to the sheriff by the master or managing owner, as should have been given. The sheriff's proceeding was cautious. Kane, being general owner, the attachment was rightly levied, provided the libelants, as consignees, had made no advances on the goods, and conElequently had no thereon. But the consignees, by their advances, had a "lien created by law," within the very letter oithe statute. The attaching creditor was doubtless acquainted with the general mode of dealing between Kane and the libelants; and he might therefore reasonably expect that, if there was any lien upon the goods for advances, it would 1:>e made known in· the manber provided for in the state law, and could be verified; and that, if found correct, the lien could be paid off, at less than the value of the goods; or, if it amounted to their full value, that the attachment might then be relinquished. To hold the goods after a lien on them was made known, without offering to pay it, would be a plain trespass under the law of that state. Stief v. Hart, 1 N. Y. 28; GampbeU v. Oonner, 70 N. Y. 424,428. The evidence does not show any intention to commit a trespass, or to assume a position that could not be maintained. Had the facts .been made known to the sheriff, or to the attaching creditor, they could h/1ve been verified by either probably within a few hours; and presumptively the levy on two of the lots at least would have been released, as the debtor had no valuable attachable interest in them. Mutual v. Sturgis, 9 Bosw. 665. All that was needed to secure the libelants' rights was apparently to give written notice of their lien, as provided by law. .There is no reason to suppose that the facts in regard to the consignees' interests could not have been learned by the master within a few hours after the attachment, upon inquiry of the shipper at Eastport. The letters of August 20th and 22d from the managing owner show conclusively that he was well informed of the shipper's affairs, and knew that the libelants were selling on commission, and that Kane had got advances on these goods. But without regard to that, had the master or the managing owner communicated with the libelants as soon as notice of the attachmen£was given by the sheriff, instead of waiting until Monday, they would plainly have received sufficient information to serve the notice provided by law, and probably in time to prevent even any removal of the goods on which the drafts had been already accepted. 3. After receipt of the libelants' telegram of the 22d, neither the master nor the managing owner took any steps to secure the libelants, as was promised in the answering telegram. They were informed that the libelants had advanced upon bills of lading to the value of the goods. If they did not know the value it was easy to ascertain it by il1<Iuiry, so far ab

THE JrI. JrI. CHASE.

·713

was neceesary to give written notice of the lien. They knew, or are presumed to have known, the requirements of the law of their own state. There is no such presumption as respects the libelants. The respondents' reply, to "send power to make demand for the sardines," was frivolous and impertinent. No demand was necessary, or, if needed for any purpose, the master had full authority already. After proper notice of a . lien, the master, as representative of the cargo interests, had every lJower that was needed to enforce the rights of the absent consignee. Such a request, with nothing done by the master or managing owner after this promise by telegram j with the further fact, testified to by the sheriff, that the master or managing owner refused to make any demand for their freight, to which in any event they were legally entitled, (Tindal v. Taylo'f, 4 El. & Bl. 219,)-shows a deliberate intent not to follow the course marked out by the statute, which was designed for the protection of both. Whetber the consignees' remedy against the sheriff was thereby lost, the is not sufficient to show. But. this is immaterial.. The respondents must be held liable to the consignees, because they wholly failed to perform their duty; and they must look for indemnity to the sheriff or attaching creditor, if they have not lost that right by their own laches. The libelants are not bound to prove that the goods would certainly have been saved. The burden is 011 the respondents to prove that pursuing the course required by law could not possibly have made auy difference. The Pell/rusylmnia, 19 Wall. 125, 136; The Frank P. Lee; 30 Fed. Rep. 277, 280; The Deniz, 29 Fed. Rep. 526, 528. This is not shown either a8 to the draft of $200, or as respects the payment of the lien, or the return of the goods. If the value of the goods was more than the advances, the libelants probably had an additionalliell to their full value from the time of their receipt of the bills of lading and the acceptance of the drafts thereon,be'cause of the balance due them as factors on general account. As no excess of value, however, is proved, a decree is directed for the libelants in the case of the'Trigg for $450 only, with interest and costs, and in the case of the Chase for $600, with interest and costs: ;

:714
,. ,

,

FEDEltAL

vol. 87.

'

..

,

.McFAR.LAND

V. THE

J.C.

'.

TUTHILL.

(DiBtrict Oourt, D., Oonnecti0u(. 'February 14,1889.)
SBlPPING-LtABILrn OF OWNER-IN.toRt:B:!l

The libel$nt. ,a leaman, while engaged in some work on the deck of a vessel belongin,gto, ,c,laimant. step,ped I:!pon an'iro,,n grating, over a coal·hole. which turned and let him down into the hole. injuring him. There was an iron frame around the coal-hole. elevated abolit three inches above the deck; and upon thli shoulder of this frame the ,grating in question rested. The testimony ,of tb,e )iiJelant. which was supported by several witnesses. was to tLe effect that the shoulder of, the frame was so worn away that when a Came upon one side it tui-nedfor lack of suppOrt. A few days before the ac· cident another seaman had stepped upon, the same grating and been thrown to the deck; and a,fter the accident the captain placed a new cover over the hole. restidg upon the deck. One whose business it was to keep claimant's vessels in repair. testified that he did notthirik the coal·hole frame and grato defective; but the claimant did not attem\ltto gElt t4e ,testimony of offi· cers or men. ,nor was the coal-hole frame produced. though in the possession of claimant'scoUlieeJ.· Held, that the claimant waslia.ble for the injuries sufferedby libela.nt. .,

BEAMEN- DEFECTIVE PREMISES.

In 'Libel for damages. : ' Samuel Park" for libelant. Brandegee" for claimant.
, . SHIPMaN, J.. This Is a libel in rem by a seaman to recover damag6s for an injury alleged to have beencause,d by the defective equipment of vessel .the .inception of the voyage., which ought to have been known by the owners. On.June 30, 1888, at Greenport, Long Island, the libelant ahipped on board the steamer, J. C. Tuthill, a menhaden l:flshing 'aaoarsman, at $35 per month. 'fheowner of sl1:id vessel -is. a corporation" doing business at said Greenport, where it fits out its vessels, whiohfish: upon the waters of the. Atlantic seaboard during the dishing season of about four months in the Bummer. ,On J:uly4, 1888, ! ,the, Please} was in port. On the ne;xt day she was engaged in fishing nepr Falkner's island, in Long bland. sQund. The nWl111ing, was clear,and the water was smooth until about noon, when the wind began to blow hard from the south. About 1 o'clock the seine-boats returned to the vessel on account of the weather, and were hauled up, and triced to the davits. The libelant was tricing up one of the boats, and, while looking forward, stepped back upon the iron grating over the middle one of the three coal-holes on the starboard side of the deck. The grating turned, and let him violently down into the hole, and he struck heavily in the perinreum, against the rim or bushing of the iron frame-work which surrounded the hole. The violence of the blow caused a stricture across the urethra, which is, in his case, a permanent, serious, and very painful injury. He was in great suffering after the accident, was carried to New London, where he was attended by surgeons, and, after about 11 days, was removed to his home in Maine, where he has been ever since. The surgeons' bills, his board in New London, and his wages were paid by the claimant. He did not know, and had no reason to know, of the