I
:rUE STROMAA :
i599
STROMA.!
iMcCALDlN
et al.
'lJ. TUE STROMA.
(Df,strict, Ooon. ,So p. J:¥f!JW York. ,February: ,26. 1800.) , M.utITI!ffl
The charter of the British S. provided that the charterer was to. pro'videanjpay for all coal, 'oil; lltp,J.,ibeiants received by telephone an order for coal for the vllssel, which order they un,derstood to come from the former agents of the ship, though in fact it did dcime from them, nor from'the master. The master ,not previQusly !mowD, to. they furnished coal to the ,vessel. had preVlOUS v done bUSIness for the charf,erer. and they knew' at this time'tlia'ti he "had someihin'g 'tOlIo with the 8." The ooarterer introduced the master to libelants, alid gav"! dwectiQns about Tile master;also testified that he informed libelants' agent that charterer was to be responsible tor clmrgeB, thoug hthis notice, WB,s,4l,t,EM 'led.N,o eVidenc&, was, g,ivento sllow'that th,e , charterer' intended, to charge, tpe ship. Hel4, on libel' against the vessel for the value of the suppliell, that.libelants had sufficient notice that the charter,er to pay the bins,; 'and, as nothing, ishCllwed an;v implied a886lit Of the owners to the bind· , in&, of the ijba1sllq111d be dillllll88ed. , " ' ,
OF
TO I.niELL"l'Ts. ,,'
not
was
'was
'),
In Admiridty." ,Libel forsu;ppIies. Hobba & GiglYl'd, for Iibelants. Sewo/rdj'Da Costa &;, Guthrie;: fot' claimant.
BROWN;'J. On August:29; 1888, the libelants furnished coal to the steamer Stroma at pier 37, ,East river. They towed her, two days before,w'that pier from tile Erie basin; and 'on September 2d they towed her to sea, "'11hei1': bill of $67'3;50 not being paid, they libeled ,the 8teattrerth'erefor on her tetUfn'to port. The Stroma belonged to En'gHsh 6\vners, whiohad chartered herlf0r a year to one Capt. BrownLcomDlencing from the time of,herdischarge at the Erie' basin. By the terms onhe charter the maste'rlind chief engineer were appointed by the own"ers, but they were to be :paid' by the' chartet:er, who' was also to "provide , and pay fot all coal, ete; :The8tromahadbeen previously in this port. HeragenO! here, when' she was run'by the owner, had been Aus, tiri,Baldwih &00. Neither- ithey nor Capt. McFarlane, of the Stroma, had any previous acquaintance, with the charterer,Capt. Brown. Capt. "McFarlane was not previously acquainted with the libelants, nor had the latter preViously ftirnishedcoalortowage service to the Stroma;' but they had 'been acquainted with Capt. Brown, and had dealt with him , during two6r three years previous. Mr. James McCaldin .testifies that he received the order by teleph6ne about August 27th to tow the Stroma . from Erie basin to pier 37 , and then to sandia boai-load of coal along'side; that,on asking from whom too orderca'nle; ,he got answer, "Austi,n-Baldwin/' but did not recognize the voice; that, within 15 or 20 'minutes"aftetwards,'the master; Capt; McFarlane,carile into the office , about having, the Stroma towed j that he then' told, the captain that he 'haH received an order for cOal, and the eaptain answered; are ' ; ,I Reported
by Edward G.
oUheNew York bl\Ir.
600
FEDERAL REPORTER;
vol. 41.
you going to send it up to-night?" The captain testifies positively, bowever, that he gave no order for the coal; and so do the persons having charge of that business connected with Austin, Baldwin & Co. Upon the testimony, I must find, asafactithat the coal was not ordered by the master, or by Austin, Baldwin & Co.; and that the suppoRed answer received by the telephone was either a fraud, or a mistake by Mr. MeCaldin.It is immaterial which it was, so far as conce1'ns the liability of the ship. Mr. Cruikshanks, the..out-of-doors agent of the libelants, acquainted with Capt. Brown, and had learned that Capt Brown was to "have soniethlingto do Stroma." On the 27th Al:1gust, Capt. Brown, at M:aritime Exchange, introduced Capt. McFarlane to Mr. Cruikshanks M,8"p.erson who would procure a tug to relllovethe'Stroma from and Capt. McFarlane thereupon .wentwith'Mr. Cruikshanks to tbe' hbelants' office, to see about the tug, and, :to come' ()ver with the ship·.,. Tile captain testifies that onl the way he told Mr.Cruikshanks that·J;1ot lie, but Capt. Brown, was to be responsible for the charges, and that -Brown had chartered the vessel; and that, if he could have had his own way, he would have employed his own tug people. Mr. Cruikshanks denies this' Conversation. As this was the first acquaintance of Capt. McFarlane with Mr. Cruikshanks or the libelants' firm, it is plainrthat'McFarlane could not previously have ordered the coal; for he went directly with Mr. Cruikshanks to liQelants' .office,'and the order for the tug and coal had been received by telephone ·a few minutes before. . The master's story is perfectly natural and consistent. Mr. Cruikshanks faUsto give any rational.account why he tlupposed the business olthe ship should betaken away from Austin, Baldwin & Co., and,their tug people,<and be given .to .the libelants. He had dealt with Brown.before. Brown introduced Capt.M:i;lFarlane,·and gave directions; and it is.impossible thatCruikshanks could suppose any other reason for this than because:Brown hadco.me inkHmntrol of the ship, and was responsible for it, and therefore chose ;todeal with his former patrons. The circumstances were of themselve8sufficient. to show. that the master was not acting at all on his ownsccount, or in the ordin.ary course, but that Brown.wasdirecting ·lh says he kpew that Brown something. tO'do with the ship." ,This was enoQgh to put him on in·quir)'. If he did not know that .Brown had a it was because he ,.chose to aakno:questions. Hel'nl,a8ter was selected. and appointed by the owners, ,sa that they migMhavQ,a man to look atter their interests. . Capt. McFarlane ;had no possible:mGtive to or to misrepresept anything. Re, says ,he told Mr. CliUikshsl')ks, on way to the office, that Brown ;had a charter, and to be for an,d that he.{theeaptain) wouldnot:have.ll'lft his OWn people, could had his wayi Ieee. no J:lufficient reaSoJl to discredit this stateIJ;lent. ,.The failure, the master refused to auli,itthe bills, to apply.to Austin, Baldwin&, ·Co. ,either.for payment, or to know how it was that the coal was ordered on their supposed telephone call, and the readiness with whioh theyeGught Brown, when the cap-
TilE STROMA.
601
tain refused to audit the bills, confirm the belief that Mr. Cruikshanks, at least, already knew or supposed that Mr. Brown was the man who, as charterer, was to pay the bills. Upon these facts, then, I feel constrained to accept Capt. McFarlane's statements as being most credible and probable; so that, without referring to the confirmation of the same notice by the witness Elliott, who was a disinterested witness at the time of trial, and whose very circumstantial account it seems difficult to discredit, the Case is like that <if Stephenson v. The Francis, 21 Fed. Rep. 715; Ne:ill v. The Ji'rancis, ld. 921; and I need notrepeat what was there said of the law in such cases. Subsequent decisions are to the same effect. The Norman, 28 Fed. Rep. 383; The Cumberland, 30 Fed. Rep. ;. 449; The Aeronaut, 36 Fed. Rep. 497. A known charterer of a freighting vessel may make contracts of carriage that bind the ship, beca11se such contracts are the very object of the charter; and the owner, inletting her for such a purpose, by necessary implication assents to the lien which the law attaches to contracts of carriage. It is "such contracts" only that Mr. Justice CURTIS refers to in the case of The Freeman,:f8 How. 182, 189, 190. But if a passenger steamer were let for passenger service only,arid freighting were forbidden in the charter, no oue would contend that the charterer, not being master, could bind her by contracts of affreightment. He would be wholly without authority to do so; and a third person dealing with him would be bound by the maxim caveatemp"tor to ascertain the lluthority Of the person with whom he dealt. Persons dealing with the maater might rely on his prima facie authority to bind the ship. The maritime law vests no such prima facie authority in anyone but the master. Contracts to bind the ship for supplies formed no part of the object of this ,charter. .There was no implied assent of the owners thereto; and, in the face of the express provision of the charter to the contrary, there is n9 for any imaginary or fictitious implied assent.' The Freeman, 8upra, 190, 191. Had the charterers dealt with Capt. McFarlane, and ,on his order, without knowledge or notice of any charter, they could have held the ship. In dealing with the charterer, they took the risk of ,his actual authonty., 'That question does not strictly arise. here, because 1 must find, that Mr. Crllikshal1ks, ,at least, had sufficient knowledge that Brown, as charterer, was to pay the bills; and in dealing with an owner or charterer in person, instead of the master, it is necessary, in order to hold the to find that the owner or the charterer intended to pledge the credit of the ship. The Aeronaut, sUpra. Nothing of that kind appears in this case. Mr. Cruikshanks took the order of Brown, the charterer, and a9ted on that, without more. Brown had no authority to .charge the ship for supplies, and Cruikshanks was affected with the knowledge of that fact; nor is there the slightest evidence that Brown intended to charge the ship. The libel must be dismissed, with costs.
lOB "
;
i
'..'
McCORMAck
v;
t9:E 'WENSJ.EYDALE.
(DtstrIct Oourl,EdJ.!NeID,' 'YO'I'ki March 10,1890.) TO FURNISH PHYBIOJA.N. , ' ',Th,e failure Of" afreigh,ting "ess"el 'to',v'rom,,d, e,' a, PhYSiCian, or nurse fa, r a, sick sailor is no neglect qf <twed to the seaman by the ship-owner. ,(turing a
to seaman by negligenceofShip:
In.
::,,'r'
'ihjuries alleged to have been caused
'
GO{)dric/l., ,J)eady& s't#lrnan, &:
BENEDIC1r,J:rrhelibelant' waSf.\ on board the ship Wensleydale, during a vciyage fr,omEQstOnto'<:;oloo, Central America; thence to Progresso; tlierice to New.Yot.lt,,"While?n the voyage Progresso, Chagres feVer ou;t 011 'vessel, and the libelant became sick. On arrival in NewY'ork, he 'to Swirib'um Island Hospital. His libel master and ',officers of the charges that 'owing to vessel, and want of and conveniences, his sickness and sufferings were, greMltiiggravated, and by r,eason thereof l1eces,sary while in to nirie of. his toes, to hIS damage of$5,OOQ.TM p,pofshows that durmg the voyage from leaving the mate the sole navi.. Progresso to New -York gator of her, and he ina That 14 ofthecrew were taken sick, and 8 were sick in New York. The evidenc& also shows the vessel to have, with medicines and with food, but that, the, libelant's sickness: wlis .so·se'vere as to make him unwilling to take food, a,lldt4at York he ,was solow that it was doubtful",bether he would:;!l\1rvive the removal from the ship to the hospital. flnfeebled of the libelant at the time of his IU'rival in NewYork appears a great,measure oWing to want of nourishment wbilesickpnboa:rd¥be ship. This'want of nourishment, however, waS not &tusedbY,a failllrejoprovidetpe vessel with proper food, but fr0In the unwillingness "Q(,the'libelant to 'take food, and thethltt food tempt his appetite was prepared, rioi'did any oneehdeavor toc0tripet-'him "to take These filets have fotce\:l tbelibelaIl:t to right to reoover upon the proposip-on that tbefailtire ofthe,'ship aphysiciap or a nurse, COJDto the appetite of the sick apdable to compel huD. to, take was neglect of th,e duty: oWing by the lihip-owner '()f his ship., ," '· This proposition cannot benp'h'eld':" Whatever may be the drity when the ship is a passenger ship, it has never been, to my knowledge, held that seamen on freighting ships are entitled to be furnished with thelReporU'd by EdwardG. Benedict, Esq., of the New York bar.
