492
FEDERAL REPORTER.
This' evidence does not sufficiently account for tho damage to the oil and beef-barrels, as shown by Schneider, Smith, and others, nor can I say that the evidence as to improper handling in New York is clear enough to account for the damage. But the impression left on my mind, after a careful reading and re-reading of all the evidence, and after mature deliberation, is clear and strong that the claimant does not account for the damage to the goods, and that the libelants and intervenors do, by the weight of evidence, show it to have been caused by co-operative negligence of the carrier. A decree should go for the libelant!'!, Flake & Co., for $384.04, and for the intervenors, Smith & Bro., for value of the oil, $50. The libelants and intervenors, .not having fully presented their case, (pleadings and evidence,) until after the appeal to this court, ought not to recover costs.
LA COMPANIA BILBAINA DE NAVIGACION DE BILBAO v. SPANISH-AMERICAN LIGHT & POWER CO.l ' (DiBtriet Oourt, B. D. New York. June 14, 1887.) CHARTER-PAnTy-PRINCIPAL AND AGENT-AUTHORITY EXCEEDED-FAILURE TO RATIFY-CROSS-SUI'l'S-DISMISSAL.
In the charter-party of a vessel were inserted two clauses, one of which required the vessel to fit up oil-tanks.. In signing this charter, the broker for the foreign owners exceeded his authority, and this fact was known at the time to the charterer's broker. The foreign owners refused to confirm the inserted clauses, while the charterers never receded from their position requiring their retention. Nevertheless. the vessel made' one voyage for the charterers; but, 8S soon as the question of the disputed clauses arose, the original dispute was renewed. The owners afterwards fitted up the tanks, at considerable expense and delay. The owners sued to recover the expense of fitting up the tanks. and the charterers brought a cross-suit to recover their damages because the tanks were not fitted up earlier. Held, that the. written charter never became a binding contract as a whole, though it was evidence of the implied contract in the subsequent use of the vessel so far as it was' adopted without obJection; and that neither side could found a claim against the other on the dIsputed clauses, upon which they had never agreed; and therefore both libel arid cross-libel should be dismissed.
In Admiralty.
Whitehead, Parker & Dexter, for libelants. Wingate & Oulle:n, for respondents. BROWN, J. The written charter-party, signed by the broker of the libelants, did not constitute a legal contract binding upon either of the parties, because in signing it the broker exceeded his authority, and that fact was communicated at the time to the broker of the respondents. It was agreed between the brokers of each party. however, that if the clause relating to the extension of time to twelve months, and the clause requirI
Reported by Eelward G. Benedict, Esq., of the New York bar.
LA COMPANIA BILBAINA.,
V. I
L. &: P. co.
..:lim
the ship to fit up the oil-tanks at her expense were objected to by the owners, the matter should be settled by negotiation. The respondents, from the first, refused the chl:\.rter unless the ship should fit up the tanks at her expense, and that fact was stated to the libelants' broker at the time, and the owners of the ship in England subsequently refused to confirm the two clauses in the charter as proposed by the brokers. Notice of this refusal was given to the charterers, and they never consented to waive these two clauses. The agreement of the brokers was that, upon such a difference, the matter should be settled by negotiation. But it never was settled. Neither side apparently wished to push the matter to a settlement, though each understood the difference. No agreement as to these two clauses was ever arrived at, while both deemed them material. The subsequent conduct of each shows that neither side receded, or intended to recede. from its position. When the vessel arrived, ready for the first voyage, neither party made inquiry as to the disputed clauses. The duty of inquiry rested upon each alike, if they wished to have a fixed agreement. Both, in fact, assented to the use of the ship on the first voyage, without any definite agreement on the disputed points, and without the settlement by negotiation that had been agreed on by the brokers. The charterers did not object because they were not ready to use tanks. When the respondents were ready to use the tanks, and required the vessel to fit them up in pursuance of the terms of the charter, the libelants refused to do so. The cargo was then taken in barrels, under a stipulation that that might be done without prejudice to the rights of either; the respondents claimingdamages for the extra expenses. Subsequently, the owners fitted up the tanks, claiming that the expenses would be at the charge of the charterers, while the latter notified the owners that they would not pay for any such expense. As the written charter never became a binding contract as a whole, for the total want of authority in the broker of the ship-owners tbinsert the two very material stipulations in question, and as the charterers never agreed to accept the charter, except with those stipulations, and gave prompt notice thereof, and did nothing to mislead the owners, the charter-party, as such, never became a contract binding upon either. It may be referred to, however, as fixing the rights of each in so far as it must be presuIlled to have been actually adopted by both parties in their subsequent acts, and no further. _ The owners' failure to notify the charterers directly for several weeks after the charter had been signed, that they refused their assent to the two disputed clauses, was irregular, and perhaps somewhat negligent, on their part; but I do not think that ma.terial in the result, because the charterers were, I think, apprised of the verbal refusal of the owners to those terms. Nevertheless, the vessel came to the charterers without further request by them, and was tendered to them by the owners, without attempting any settlement of the disputed points. Both alike consented to the first voyage without any settlement of these difterences. It is certain, however, that, as soon as any question was made between the master and the charterers about the
494
.",
"
tanks after the first voyage, the original refusal of the owners was made known to the respondents, and neither of the parties ever agreed to the demands of the other on this subject. Without either side yielding anything to the other as to the. charter, the ship was employed, and neithersiderefused further dealings, as they might have done. Under that state of things, the terms of the charter.must be deemed to ,constitute the im plied agreement of the parties in the llctual use made of the ship, in all except as to the disputed clauses. Neither party can found any claim against the other upon the clausefl that the other party did not accept, but always and consistently refused to accept; because, in the face of such a refusal, no agreement to them can be implied. The owners, therefore, can recover nothing for their expenditures in fitting up the tanks to carry oil in bulk; nor can the charterers, by their cross-libel, recover any damagl',s for the tanks not beiog fitted up earlier. For the same reason, also, the owners cannot recover for any time of the vessel lost while they were fitting up the tanks.. They lose nothing by this disallowance, be('Ause it does not appear that any more time was required to fit up the tanks when the work was actually done, than would have been required when the vessel was brought over to the charterers. The evidence ,shows that, after the employment of the vessel had begun, neither side was desirous of insisting on its legal right to discontinue all further service by reason of the failure of the parties to come to an agreement upon the disputed clauses of the written charter. The rights and liabilities of the parties are founded, as I have said, not at all upon the written charter-party, but wholly upon their subsequent conduct in the actual use of the ship. The charter7party is applied, by implication, to these acts, so faras:it presumptively indicates the intention of both, and no further. There can be no implied promise or obligation in contradiction of the expressed refusal of either. The result is that neither has any claim upon the other for the damages set forth by them respectively; and the libel and the cross-libel must therefore .each be dismissed, except as respects the hire unpaid, if any, Jor the time of the actual use of the vessel by the charterers.
O'BRIEN'tI. NEW YORK &; LAKE CHAMPLAIN TRANSP.
Co.
(District Oourt.. B. D. NeIJJ York. 'raGAN»
May 18. 1887.)
, A tug Lake Champlain, in taking tows of great length,-nearly 2,000 feet,-is po,und, at her own peril,.to taj.{e precautions, by dividing the tow. or getting Other help, as may be necessary, to prevent the tow's swinging far out of lirie,:inwmds not extraordinarY, to the damage of the tow by running over buoys that mark the channel.
To#...:...LA'KE
CHAMPLAIN-:"LONG Tows-NEGLIGENCE.
Admiralty. Hyklnd Z<UJriBkie, for libelant.
o'BRIEN fl. NEW YORK & LAKE CHAMPLAIN TBANBP. 00.
495
Goodrich, Deady
Goodrich, for claimants.
BROWN, J. The libela,nt's carial-boat Estella, on the p,ort sme of the seventh tier, while being towed np Lak,e Champlain, received some damage in passing over Valchor's reef, a few miles north of Port Jackson. From the evidence it is probable that the water over the reef was a little deeper than the draught of the canal-boat, but only a few inches deeper. The reef was marked by a buoy about a foot in diameter, and I have little doubt that the injury was caused by the tow's passing over the buoy, which was carried beneath the boats, where there was notsuffi.cient water to prevent grinding the buoy between the bottom and the boat, and that this racked the deck beams and stanchions of the boat, as testified to, without breaking through the bottom. ' For the injury thus the transportation company must be held responsible. was plaiplY without fault. The injury was not a peril of The the seas; because, it could have been avoided, it seems to me, by reasonable prudence and precaution. , The tow, before it reached. this part of Lake Champlain, consistEjd of 14 tiers of boats" tW9 in each tier, upon a hawser of about 550 feet, makipg, altogether" a length of some 1,900 feet behind. the tug. A high wind from the west came on, which sWUI).g the tail of the tow some 600 feet out of line: The channel abreast of the reef was some 700 feet wide, besides some additional width of available water.. There was extraordinary in the wind that came on, JIlthough it was strong. Such winds were well-known perils. . There various)Vays in which the manifest danger of sweeping along with a tow of such vast length, thus swung of line, might have 1;leen I cannot see how tows of such perilous length can be justified. They should be divided. The liability Of so long tows to sweep over the. reefs and buoys is. plain. If such tows mll-Y be allowed when the weather is safe; the tug is at leftst bound to provide against the contingency of any change of weather ,that may happen upon the trip, by taking such help as may be available. After this high wind came on, the. tow might have been safely left at Port Ja()kson, as the wind then was; but, if that were not desirable, a helper could have been taken. on to keep the tail of the tow, ipplace. The recent practice, also, of taking .boats in line as they happen to come, without regard to their differences -of draught, instead of adjusting them so as to preserve their places,best in a long tow, is a practice difficult to support, though adopted to pre.vent disputes. It seems plain to me that the prudent regard for the .safety of the boats in the tow, which the law requires of all tugs, was not observeq. in. this case, and that the respondents must be held an.1lwerable. Brm.oer v. Ne:w York kLake Ohamplain Trqntp. Co., Mar. Reg. . April 7,1886.. . There are various circumstances,however, that cast considerable doubt upon the extent of the damage. Ha.ving regard to these circums1(al,lce8· .1 allow the sum of $250 only, with costs.
496
FEDERAL
PINKHAM V. RUTAN.
l
(District Oowrt, E. D. Pennsylvania. June 80, 1887.) ADHmALTY-LIBEL-EVIDENCE-SEAMEN'S WAGES.
Evidence will not be admitted to carry a seaman's claim for wages back of the date named in the libel, unless the libel has been previously amended.
II. R. Edmunds, for respondent.
Charles Gibbons, 'Jr., for libelant.
BU'rLER,J. No question of law is raised. The libelant's right to recover something is admitted. He was hired at $25 per month. How long he served, and howrriuch he was paid, are the only questions of fact.' In his testimony he states, at the outset, that he joined the vessel in November, 1883. He left it in January, 1886. On cross-examination, however, he I:?ays= "I joined the Billy Redabedee in April, and left her in November, 1884. I must have joined her in April, 1884. I made a mistake. I joined the Rutan, as mate, on the seventeenth day of November, 1884." This is entirely' plain. Without something more, it would be clear that the charge for services should begin with November 17,1884. After or about the time ofthe libelant's discharge from the ship, however, the master, who is his father, gave him a statement in writing, in which the calculation starts with January 1884, and is evidently based upon the idea that the libelant joined the ship in November, 1883, and was paid as he admits, in full to January 20th, following the commencement of his services. I think it cannot well be doubted that this statement is a mistake. It is not entitled to the same force as the libelant's positive allegation that he joined the ship in November, 1884. If this was not what the witness intended to say, he shouldbave corrected it when read over to him. It seems. however, to have been said in correction of his former statement, and with full understanding of what he was saying. The statement in the libel, however, on this subject, is conclusive, so long as it Without an amendment in this respect, the libelant cannot be allowed to go behind the period named. That the libel so states the time the libelant is, of course, aware; and yet no offer to amend has been made. Commencing the calculation with this date, taking the admission of payment in full to January 20th following, and allowing the further credit ot',$150, also admitted, there would be $137.50 due January 4, 1886, when the' services terminated; As against this, I find the respondent entitled to an additional credit of $100, paid at the breakwater. The weight of the evidence is clearly in favor of this credit. Martin testifies positively that libelant told him this sum had been paid. To this testimony the libelant has made no reply. This will leave a balance of ·'$37.50, with intfJrest from January 4, 1886, for which a decree will be entered; 1 Reported
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
LOCKHART 'D. MOREY.
497
LOCKHART V. MOREy. 1
((Jircuit (Jourt,E. D. Louisiana. March 14, 1887.) 1. REMOVAL OF CAUSES-PETITION FOR EXECUTORY PROCESS.
2.
SAME.
OPPQsitions tiled to orders for executory process. under the provisions of the Louisiana Code of Practice, do not constitute mere ancillary proceedings to a suit already tried and determined.
E. D. Wfl,iJe and E. D. Saunders, for plaintiff and motion. John D. R!Juse and William Grant, for defendant. PARDEE, J. The quel:ltion presented by the motion in this case is whether a case is removable from the state court to the circuit court, where the suit is instituted in the state court on a petition for executory process on a title importing a confession of judgment, executory process has been ordered, and the debtor has filed an opposition, denying the plaintiff's right, and asking the revocation of the order; the requisite showing as to amount involved and citizenship being conceded. It is claimed that the order of seizure and sale constitutes a judgment between the parties, and that the proceedings thereafter on the opposition are merely auxiliary to such judgment. The case of Ralston v. Mortgage Co., 37 La. Ann. 193, is cited to support this contention. There is no question that the proceedings above recited constitute in the state court a suit of a civil nature, at law or in equity, which has not been but is to be tried and determined. Because a judgment is in controversy, is of itself no hinderance to the removal of a suit of a civil nature, at law or in equity. If a suit has progressed to trial and judgment, it is too late to remove it, because all removals should be before trial. If. after judgment rendered. a suit is brought to control as to the mode and manner of execution, or even to prevent execution, there is plausibility and authority for holding that such subsequent suit is ancillary to the main suit, and therefore not removable. But where there has been no trial, and the involve the whole merits, and the whole matter can be transferred, it is difficult to see that the question of removability should be affected by the fact that some order previously rendered in the case may have the dignity of a judgment. In this case, therefore, I am inclined to the opinion that the present case is removable, irrespective of the question as to whether the order of seizure and sale amounts to a judgment or not. At the same time I take it that the real force and ef1 Reported
On Motion to Remand.
by Joseph P. Hornor, Esq., ortlle New Orleans bar.
v.31F.no.9-32