FEDERAL REPORTER,
vol. 38.
value at his own estimate. Libelant had bought the coal with ofmaking money out of his purchase, and believing doubtlesstha:(he could procure appliances for saving-it at a cost much less:thl1n the of the coal in Chicago. He was entitled to'the benefit of his bargain, and ought not to lose his expected profit except upon satisfactory evidence that he was mistaken in his estimate of the cost of raising it, and that noprofit could have been realized by the use of the most approved appliances for such If respondent pursued an injudicious and unnecessarily expensive course, libelant ought not to be charged with hisfailute to realize a profit. I think the true measure of damages in this case is the value of the coal in Chicago, less the necessary expenses of raising it and carrying it ashore by the use of the most approved appliances for that purpose, and that the case shoUld be referred to a commissioner to make such estimates upon the best evidence he can procure. If the court is satisfied that such expense could not have been lessthan the value of the coal, the decree will be entered for nominal damages only.
THE BOMBAY. WIGTON et ale (Di8triet Oourt, E. tI.
THE BOMBAY. December 11.1888.)1 ". .' ,
n. Louisiana.
!LuuTIHE LIENS__SUPPLIES-CHARTER-PARTY.
By a charter-party the owners" agreed to let" and the charterers a .greed'to hire for the term, .. etc. The owners were to man the vessel, pay for all provisions, wages, consular, shipping, and fees of officers Jlnd crew, insurance of vessel, engine-room stores, and maintain it in an efficient state during the service. The charterers were to provide .andpay for all coals, port charges. pilotage. etc. The charter-party further provirledtbat "the captain, though appointed by tbe owners. should be under the orders and di· rections of the charterers as regards employment,agency, and other mattel's," and that "when the vessel is delivered to the owners' agent:-:--that is, after the termination of the voyage-any difference, .. etc. There was a proHeld, that the I,lharterers vision permitting the appointment of a had the control, management, and posseSSIOn of the vessel, and that the ves, sel was liable for coal necessary to enable it to prosecute the voyage, furnished .to it, in a foreign port by parties not affected with lloticeof the terms of the charter-party. .
In Admiralty. · Libel by R. B. Wigton &: Sons for coal furnished to the charterers ofilie steam-ship Bombay. Bayne, Denegre ({c Bayne, for libelants. Jamea McOonneU, for respondent. BILLINGS, J. .The facts necessary to be considered in thi.s case are that the Bombay is an English steamer; that she was in Philadelphia, and " '1
Publication delayed pending motion for rehearing.
Ti.[E BOMBAY.
513.
needed coal to prosecute her v01agetoNew Orleans, and it was furnished! her. The vessel was under a charter, and it was during the tirrie that the charter-party was in force that these coals were furnished. Thet coals were not furnished on the order of .the master, though he states they were· needed·to enable her to prosecute her voyage to New Orleans. The coal was by the libelants' finn, under an arrangement made between LaTassa & Co., the charterers, of New York, and them, by "'hich they were to supply with coal, at Philadelphia, all steam.ships requiting; fuel at this port, of which LaTassa & Co. controlled the coaling. The libelants, in furnishing the coal, did not know anything about the financial standing of LaTassa & Co., and. made no inquiries, because they considered the steam-ship liable for the coal. It is manifest from these facts that neither the master nor the owners gave any order for the coal that was furnished to the vessel; that the question whether the vessel is subjected to a lien for the supply of.these {loals must depend entirely upon whether the chartet:-party made the charterers owners pro hac vice. All· the authorities are agreed that" when the general owner allows the charterertohave the control, management, and possession of the vessel, he becomes the owner for the voyage. A general owner, undersllch circumstances, must be deemed to consent that the vessel shall be answerable for necessary repairs and supplies to enable her to pursue her voyage, and that the special owner may bind the interest of the general owner in the vessel in this behalf." The question, then, simply is whether by the terms of this charter-party the charterers were tohav.e. and. did have, the control, management, and possession of the vesseL The vessel was chartered for one voyage between the Mediterranean al'l.d the United States, the United Kingdom, or the continent, as the chartel' >rs or their agents shall direct. The owners were to man the vessel, pay fOr all provisions. Wages, consular, shipping, and discharging .fees of the captain. officers, engineers, firemen, and the crew, the insurance of the vessel, all engine-room stores, and maintain her in a :thorough and"efficient state. in hull and machinery, for and during the service. The charterers were to provide and pay for all coals, port charges, pilotage, etc., except as above stated. The charter-party further provided that "the captain, though appointed by the owners, should be under the orders and direetionsofthe charterers,as regards employment, agency, or other matters;" and the charterers al!ireed to indemnily the owners from all consequences or liability with reference to signing bills of lading. The decisive stipulation in this charter-party is the last,.,-that the captain, though appointed by the owners, should be undel' the orders ahd directions of the charterers as regards employment, agency, or other arrangements. This, in The India, 14 Fed. Rep. 476, and 16 Fed. Rep. 262,the same case,-was thought by Judges BLATCHFORD and WALLACE to determine that the owners had made the charterer the owner pro/laC vice. See, also, Judge NELSON'S opinion in The Oity of New York, 3 Blatchf. 187jand The Freeman, 18 How. 182-190. In Leary v. U. S., 14 Wall. 607, it is' said" that the retention by the general owner ofsuch command, possession, and control is incompatible with the existence at the s;:tme' v.38F.no.6-33
514,
FEDERALlUlPORTER. yol. 38.
time of 8uchspeoial ownership in the charterer." Page61t. But in this case the matter as to the party .in whom command, possession and control should be vested is not left to inference, but is settled by the clause in the last quoted. If these authorities are correct, the only defense that could have been offered under such a charter-party would have been that the libelants hadbeen put upon their inquiry as to the authority ,given under the charter-party, but no such defense is, here Let there be judgment for libelants. j
ON REHEARING. . . (March 19,
Since the opiuion in this case was lJ,nnounced the charRep. 262, referred to therein, has been obtained, andcertainautho;rities have been cited in the b;rief of respondent for a rehearing. In the opinion rendered in the case it was, stated that the question was whether the charterers were to have, and did have, contr,ol, management, and possession of the vessel, and a line of cases was referred ,to, which maintain that by some similar charter.-parties the possession and control were vested in the charterers. of cases must control me" unless this case is distinguishable {;rom The India. ,An effort is made by learned proctor for respondent to show that a distinction' exists,and,first, he points to the pl1ovision,in' the charter-party that the charterers shall have permission to appoint a ,supercargo, who shall aqcompany the steamer, and see that the voyagesare.prosecuted with the :utmost dispatch. In connection witbthis clause,;the case of Saville v. Campion, 2 Barn. & Ald. 503,1S, cited., In that case the charter-party did not contain the words "let: to freight," "instrument," as the .court terms it, contains matter of contract and, covenant only. The, agreement was to take on board!thegoodsoLthe freighter, and sail to Madeira, The owner further agreed that such passengers as might be required by the freighter should, be in the. ship; that all the cabins except one should be for the benefit: ltnd at the disposal of the freighter. ,There is also a clause provirlingfor a supercargo to be sent out by the.charterers. Since in,· that,rese was no .letting,-only a contract to carry freight,aourtheldthat the specification of the right of the charterers to appoint a. sQper£largowas another evidence olthe intent not to let. But did not·holdthat -in all oases the specification in the party oftheright of the charteretsto appoint a supercargo would show no: possession or control of the vessel in them, for rights are specified. or reserved. in instruments as often to give emphasis to its: general purport ..-ioas,is the. case· here-as to make. an exception .to the general effect of instruments,"""7'8S was the case there. In wi of the cases which are grouped together in the opinion'ofSAVAGE;C. J., in Clarkson v.EdR.s, 41 Cow. 47.8, great weight, is atta<lhed to, the phraseology of the party as to whether,the vessel itself was hired, or whether the charter.. party was merely a: contract to carry freight. '. In the case before
w.. party of The India, 14, Fed. Rep. 476, 16 Fed.
, BILLINGS, J.
"
, ·'.1'B:&: .:8., s.· CAltT,E&:·!'. ,'J
COl1.rt
"agreedeto, leti",and:thesaidcha'rterers l!agreeB 'to of," etc, i an,Fthe" em arter-party further providej:l' that ":whenthe vessel is to the :owners? agent-that is',' after. the termination ,of the difference," etc. ThereforE\:the phraseologyofthe charter-party is that of an instrrimentwliich'was tended by the parties thereto to grant and "to freight let." 8'0 far,as relates, to provisions of the charter-party that the charterers shall have permission to appoint a supercargo, who shall sel, and,see that the voyages are prosecuted with the utmost dispatch. it does, not contr91 the general effect of the charter-party, but is ,in aid of it. Much less does it do away with the particular provision that thE! captain, although appointed by the owners, shalf be under' thei ordere and directions of the charterers as regards employment, agency, or other arrangements. Now, in Clarkson v. Edes,4 Cow. 477; although the Iaa. guage was that the vessel was let, the second and third clauees;were that the party of the second part, the charterer, may load and 'discharge froD;l on board ,the schooner such cargo in either of the ports or places as by the party of the first part (the owners) shall be ordered. The court held that those clauses were .inconsistent with the possession" being in the charterer, and the correctness of this conclusion candot be doubted; but the agreement in that case had not the features, the pres.. ent charter has. After a careful review of the cases, and a considera" tion of all the arguments urged, I am still of the opinion that in the present case it is my duty to follow the authorities referred to' :in illY' former opinio.\l. ,and therefore the motion for a rehearing is, refused.
THE
R. S.
CARTER.! STEVENS.
THE JOHN LoUD et
G.
cU. t7.
CAllTER AND
G. STEVENs.
(Di8trict Court, E. D. New YO'I'k. ,t\pril 5, 1889.) JURITDm LIENS-PmORITy-REPAIR8-SUBSEQUENT TORT.
The Hen tor damages arising out of ,a collision takespr(lcedence over the lien of a material-man for repairs to the negligent vessel malle, prior to such collision. . ' '
,'
In Admiralty. George A. Black, for libelants. Alexander &: Ash, for claimants. BENEDICT, J. This case comes before the court upon 'the :question of' priority.' In March, 1886, the schooner Flint, atthe' time being tvwed I . ' ,
1 Reported
by Edward G. Benedict, Esq., of .theNew ¥ orkbar.