682
FEDERAL REPORTER.
carryon a laundry where clothes are washed for.pay, within thp. habitable portion of t.he city. Stockton Laundry Case, 26 Eed. Rep. 611. The legislatnre has no power to declare, or to authorize the municipal authorities to declare. private residences to be nuisances, because the same has a tendency to depreciate in valu'e the property of persons Ileal' by; or to ohst.ruct the view of the same, or to keep the breeze therefrom; . Quintin v. City of Bay St. Louis, (Miss.) 1 South. Rep. 625. Licenses for callings, trades, alld employments may be required by supervisors where the nature of the business requires special knowledge or qualifications, or where they are issued as a means of raising revenue for municipal purposes; they cannot be required as a means of prohibiting any of the avocations of life which are not injurious to public morals, offensive to the senses. nor dangerous to public health and safety. In QbongWoo, 13 Fed. Rep. 229. But an ordinance prohibiting the washing and ironing of clothes between certain hours of the night is one within the rightful exercise ofthe police powe!'s. Boon Ring v. Crowley, 5 Sup. Ct· .Rep. 730; Barbier v. Connolly, Id. 357. .
PATERSON and others
11.
DAKIN and others.
(District Court, S.D. Alabama. July, 23, 1887.) 1. ADMJRAtTy-JURISDICTION-INJUN(J'fION.
A court of admiralty has no power to grant an injunction enjoining the defendants from enfOrcing a claim against a cargo, nor to enforce specific performance, nor to compel the execution of a contract. REM'l!l!>IES.
S. CHARTE:R-P ARTY-P
Where a. charter·partywhic!;l is made with the owners only, the master not being a party to it, stipulates that the mastl;lr is· to sign the bills of lading. an action in per80nam will not lie against the master for failing to sign a clear bill, but the remedy is against the owners, or in rem against the vessel.
8.
MASTER-PERSONAL LIABILITy-VINDICTIVE
Wher:e,a lUasier. whose duty it is to sign his ship's pills of lading, indorses on a bill of a claim for which he honestly belie.ves to be well founded; he IS not liable for vindictive or exemplary damages on its being proven tha·t there was no legal pr just claim for4emurrage, nor under these circumstances is liable for conversion.
4:.
SAlliE-NOMINAL DAlIIAGES·
G.
. Where there is no legal and )ustclaimfor demurrage or otherwise, it is the duty to give a clear bill of lading; and he is liable for nominal damages for indorsing an unfounded claim upon it,. though honestly believing such claim to be valid.
CHARTER-PARTy-CONSTRUCTION.
: Where a Charter-party provides that "from the computation of the time allowed for delivering timber:t0 the ship shall be excluded any time lost by re&son of drought;"and it ap:\lears that at the shipping point agreed upon between the parties' it was customary to fioat the timber down certain streams and rivers to the point of shipment, which were liable to be dried up, but the harbor and booms were never endangered by drought, the word" drought" will' be held to apply to the rivers and .streams, and will not be held as surplusage.
Libel in personam to compel clear bill of lading. R. Inge Smith and R. H. Olarke, for libelants. G. L. & H. T. Smith, for respondents. ,TOULMIN, J. This libel is filed against George Dakin, master of the ship and Wylie, Fisk & Co., brokers alld agents of the owners of the ship. It is filed for three purposes, vii.: (1) To enjoin the defendants from enforcing a claim fQr demurrage against the cargo, the charter-
FATERSON 'V. DAKIN.
683
party providing that the master or owner is to have a lien on the cargo for all demurrap;e; (2) to require defendants to execute and deliver to libelants a proper clear bill of lading for the cargo; (3) to recover of the defendants such damages may have sustained by thelfailure and refusal of the master to sign a clear bill of lading. On the hearing of the exceptions in this case I held that the court had no power to grant the injunction prayed for, and that the exceptions to so much of the libel as sought this relief were sustained. But, being inclined to the opinion that the admiralty court had the. power to compel the execution and delivery of a proper hill oflading, and could award damages for a breach of the contract, which provides that the master is to sign bills of lading, I retained the case, and proceeded with it upon those questions. The libel in seeking to compel the master to sign and deliver clear bills of lading is. in the nature of a bill in equity seeking specHic performance of a contract. The master is the person to sign bills of lading, and he is bound to sign proper bills of lading. But, if he fails or refuses to do so, has this court the jurisdictional power to compel him to do it? Judge STORY says: "Courts of admiralty are not, by their constitution and jurisdiction, confined to the mere dry and positive rules of the common law; but they act upon the enlarged and liberal jurisprudence of courts of· equity, so far as their powers extend. But courts of admiralty have no general jurisdiction to administer relief as courts of eqUity. If a maritime contract is broken, the admiralty, concurrent with courts of law, can only give damages for the breach of it; whereas· the chancery conrt may compel the party, in sorne cases, to a specific performance. A court of admiralty has no more power to compel such specific performance than it has to set aside the contract for fraud, or correct a mistake, or decree the e·.{ecution of a trust. These are matters properly subject to the cognizance of courts of equity and not of the admiralty." Brown v. Lull, 2 Sum. 443. In Andre.ws v. Essex F. M. Ins. Co., 3 Mason, 16, the same judge broadly dedares that courts of admiralty cannot entertain a libel for specific performance. "Courts of admiralty," he says, "have jurisdiction over maritime contracts when executed, but not over those leading to the execution ofmaritime contracts. If there was a contract to sign a shipping paper, or to execute a bottomry bond, and the party refused to perform it, the admiralty court cannot take jurisdiction and enforce its performance." But, it may be said that the contract, the specific performance of which was sought in this case, was not a maritime one, but only preliminary to the execution of a maritime contract. This is true, but still the broad proposition is asserted that courts of admiralty cannot entertain a libel for specific performance. The remedy invoked in such case is purely an equitable one. In Kellum v. Emerson, 2 Curt. 79, Judge CURTIS says; "It is often said that a court of admiralty is a court of equity, acting on maritime affairs." "A court of adtiliralty," says he, "applies the principles of equity to the subject within its jurisdiction. But that jurisdiction differs widel)· from the jurisdiction of courts of
«
684
chancery." In· Davis v. Child, Daveis' Ware, 81, it is said: "It was never contended that a court of admiralty has the authority to decree a specific perforrpance of an agreement." I am bound, then, to conclude that, although a court of admiralty is in many respects a court of equity acting in maritime affairs, it has no chancery powers. Its jurisdiction differs from that of a court of equity. The power to decree a specific performance of a contract is purely equitable, and belongs exclusively to chancery. That a court of admiralty does not entertain a libel for a specific pE\fformance of a contract, nor to compel the execution of one, see Henry, Adm. Jur. 65, § 25, and note; 1 Add. Cont. § 497; The Ives, 1 Newb. Adm. 205. Can this libel be maintained on the question of damages? This is a suit against the master, and Wylie, Fisk & Co., the ship agents, in personam, and from them damages are claimed for a breach of contract. The charter-party is the contract, and it stipulates that the master is to sign bills of lading,-and this of course means proper bills of lading.. If there was no just claim for demurrage, a· proper bill of lading in this case would have been a clear hill of lading. It is conhmded by libelants that there was no legal and just claim for demurrage, and that the master's refusal to give them a clear bill.of lading was a breach of the contract, by which they were damaged.· From my construction of the charterparty, and in my view of the evidence in this case, my opinion is there was no legal and just claim for demurrage; that the master should have given a clear bill of lading, and that from his refusal to do so there has been a breach of the contract. I will have more to say on this subject hereafter. But the question recurs, can the court award damages in tbis case for a breach of the contract? A charter-party isa maritime contract, and, as between the parties to it, a court of admiralty has jurisdiction to determine the obligations arising therefrom, and whether they have been violated; and that, in an action in personam or in rem. Post v. Jones, 19 . How. 150; The Fifeshire, 11 Fed. Rep. 74'3; Maury v. Culliford, 10 Fed. Rep. 388; TheA. M. Bliss, 2 Low. Dec. 103; Oakes v. Richardson, Id. 173. The parties to this contract, which is the charter-party, are the owners of the vessel,and the libelants. The master is not a party to it, and Wylie, Fisk &00. are connected with it only as agents of said owners. The refusal of the master to issue a proper bill of lading is a breach of the contract, which can be enforced in rem against the vessel, or in per80nam against the owners, for any damage the libelants may have sustained thereby. But my opinion is that the libelants cannot recover of these defendants any damages for a breach of the contract, even if libelants had shown any to have been sustained. But it is further contended that, independently of the charter-party, there was imposed by law on the master a duty to sign proper bills of lading, and that he failed and refused to perform this duty, while, vexatiously to set up an unfounded eIaimto demurrage, and to impair the negotiability of the bill of lading which he did give, and to destroy or impair the salability of the cargo, he indorsed a protest and claim for demurrage on said bill, to the loss and damage of libelants.
There isnoquestion that a duty was imposed by law on the master to sign a proper 'bill oflading. See Macl. Shipp. 368, and authorities cited in note; The Ferreri, 9 Fed. Rep. 468. And if he refused to do so vexatiously, and set up an unfounded claim to demurrage, to inconvenience and damage libelants, then I think libelants would be entitled to vindictive damages, whether any actual damage was proven or not. But the proof wholly fails to sustain such a complaint., There is no evidence to induce me to believe that the master acted vexatiously, and with a purpose to inconvenience and damage libelants. I have no doubt of the honesty of his claim, and think his good faith was shown by his desire and effort to adjust the matter amicably, and without a resort to litigation. I therefore find no just claim for vindictive or exemplary damages; and. as no actual damages have been proven, none can be awarded libelants in any aspect of the case. .. 'If'.' It is further contended that the master was bound to sign a prqper bill oflading, and, failing or refusing to do so, is guilty of a'Cbnvel'slon. of the cargo, and is liable for value. The master is bound to sign a proper bill oflading,as I have before said, if he has received the cargo on board, or to put it ashore again at the ship's expense; otberwise he arid the owners might be liable for a conversion. See Macl. Shipp. supra, 368 and note; The Ferreri, 9 Fed. Rep. 468. But the facts alleged in this libel do not make out a case of conversion. It is true that in admiralty an acti'on can never fail for want ofproper allegations, -if merits clearly appear in the record: that is to say, 'amendments of either form or substance to cOllform to the evidence will be allowed at any time before a decree. Richmond v. New Bedford C!oppIIf Co., 2 Low. Dec. 315. But the facts proven in this case are not sufficient to warrant a decree for conversion, nor would such a decree come within the scope of the prayer of the libeL Having held that the libelants have not shown right to recover actual damages, I will now consider whether they are entitled to a decree for nominal damages. For the violation of any legal right, nomirtal damages, at least, will be allowed. This principle applies to all actions, whether for tort or breach of Mntract, and whether the right is personal or relates to property. The failure to perfonh a duty is a legal wrong, independent of actual damage to the party for whose benefit the performance of sucb duty is due. The omission to &how 'actual damages,and the inference therefrom that none had been sustained, do not necessarily render the case trivial. 1 Suth. Dam. 11, 13, 14. An action is maintainable for a breach of an implied duty arising out of and incident to a contract. 1 Add. Torts, p. 26, §§ 27, 28. If there was no demurrage justly due, a proper bill of lading would have been a clear bill of lading, and it would 'have been the master's duty to give such a one; and his refusal to do so would have been a violation of libelantR'legal right, .for which they would have been entitled to at least nominal damages. If, on the other hand, there. was demurrage due, a proper bill of lading . would have been' one indorsed with a protest and claim for demurrage. This brings me to the question, was there any demurrage/'due?The
.
685
FEDERAL REPORTER·
. provides froP'! the computation of.the tirp,e allowed for deliyelil,lg the cargo to the ship shall be excluded any time)ost by rea801;1; Qf: dJ!o1.lght. It is. claiw,ed by libelants that the whole 25 days alfor the delivery of the. (}ar:go were lost by reason of drought, and this directly prevepted tqe delivery of the cargo within the time apecified; that. they were released from the stipulation in the contract as to the 25 days by this express and hence not liable for any d,eJUurrage. This vessel to. be loaded at Ship island. It appears .tPa.t it, Wll...'l, usual. for vessels loading with timber at that port to get their cargoesfronl Moss Point. It, appears that it was in the contemplation of the .parties to this charter-party, at the time it was made, that this toget her cargo from M?ss Point. It appearFJ that the usual RIld oidinaryway of Mpss Point market with timber, both hewn and for mill purposes, was down the rivers and streams which flow f!;'om the ipterior of the country to that point. And itappears that from R IIhort tiJ;ne before the charter-plilrty was made, down to about the time the loading.of"the vessel was completed, there prevailed in all the country fr0l1!l. which Moss Point was supplied with timber an extraordinary drought"su,chas had not occurred, before in many years, and which affected said rivera and to such an extent as to prevent the floating .and trapspprting,oftimber downtbem toMoss Point,or at least neces.Ilitated its trl!-nsportationin such small quantities and with such delay as greatly to affect anQ. retard, business at that point. It appears that Ii.belants had their timber,. which was intended for the cargo of the ship Austria, in these streams andriYElrl;l, and that l;>y reaSOJ;l of the drought they were able·to get but.a sroalJ;partdown, and that with much delay, e'Jtpense, and, trouble. Tpe, :ship .was finally loaded with a cargo which came principally.fJ;om the port of Mobile, and which, it appears, was obtained by libelants by extraOJ;dinary effort and expense. The drought also affected the Mobile mar,k!lt, and the supply of timber there. It all$0 appe!trs'that while a drought 'seriously affects the interior creeks apilimpairsand retards the transportation of timber down .theljIl.:.it)n,.nQwise affects the waters at Point and Mobile" the :bQoms att4pse ppintswhere thnber is or the transportation of tim. ·bel' from the booms to the ship at anchor. ,It is :contendedon the part of .the defense that in the fl,sto drought has. po IJ;Ieaning, iS ll rnere matter of form, under it. The rule oflaw is that and that,libelantsean j<U;aim a contrlWtIUust .be cOllstrued 'qr .1iaken in a sense give to it some o.peration,ra:tJ.wr,than thatwhieJ1.will giveitnope. and effect must be ·given to .Brick. Dig.. 386; .1 ,Pars. $h.jpp. 319.; leAlid.Cont. § 220. A,nd every contract to be in connectiJqp with t11e surrounding ,circumstances. /l. qharter-party's,s tp loading a vessel must be ·copstrued ·'lVith reflf),'ellce tothe the pOIjtof 101lP:illg.· Customs of the par· are: taqitly incorporated in thE! contrllct. If the of are Wiell known,. at in .trade to which the a .ter-party: 'relp.tes, it ",mba held, in,the absence of exclusive words in it, i
THE EUZA S. POT'rER.
68'1
to have been framed on basis of such usages, although to one of the contracting parties these usages were unknown. The construction of a charter-party should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, or of the particular trade to which the contract relates.. 1 Add. Cont. § 221; 1 Pritch. Adm. Dig. 473-487; Macl. Shipp. 361; 1 Pars. Shipp. & Adm. 319, and note. Construing the charter-party in question by the light of these princi.pIes, I a.m bound to hold .that the stipulation in reference to drought, in order to give it any effect or operation at all, must apply to the rivers and creeks from which the supply of timber for. Moss .Point came, in , view of the usages of the particlliar port and trade to which the contract relates; and being satisfied from the evidencethat tl;1e droughtprevented or delayed the delivery of the cargo to the ship, I am of opiniop that.the and cargo are released from any liability: for demurrage by t4e exceptions. in the andtl;lat Aone is que. is contended on the part of the defense that. libelan.ts the vessel at all hazards, or Pl,\Y for the delay; that they l1J;ld could have obtained a cargo elsewhere. If, they were ,frorq. the contract by bringing themselve,s llnder the in it, my is that they were under no legal .qbligation to go elsewhere cargo. . But, when they ll>unll they would not be able .to the sl1ipwith t4o. cargo, as by the contract, t)1ey we1';e ;Q!)der amorll.l obliga)ion all could to save the ship and owners from lOBS;. This I think. the· proof shows they did. . If the libelants pad, accepted thl'l 'bill of 1adillg given them as a proper one; with no. in;teI),tion at the time of they could not maintainthiss!J.it. But the evidence, me they diq. not so accept of Dow. and Capt. ,Dakin is clear !is .to this.. ' Hence it. The .wy opinion is that li1:)l)lants were entitled to a clear bill of lading, and '\Vas duty to sign a:clear bill. . . . ,:M;y judgment is that libelants are eIJ.titled to a decr.ee.as damages, no actual damages l;1avaga.inst defendant Dakin for Jug been, &l;1owu; .and I think the for general relief in the libel is to warrantsu,ch a decree. But I consider therlil is no legal Firilk & Co., and. as to them the libel is A decree will be entered in accordance with this opinion.
THE
S. E. RUSSELL·
. ,., ,.
,....
THE HELENA. and others, Owners,
. . ; .
HELENA E.RuSSELL
(District Oourt, D. Oonnecticut. COLLISION-ExCUSABLE BREACH OF RULE.
1, 1887.)
Where a vessel sailing on the ocean on the starboard tack, and having the right of way, crosses the track of another vessel sailing in an opposite direction, on the port tack, and the latter fails to fall off and give the former the right of way, ·the former, on finding that a collision is imminent, is justified