same date he demanded oerijficate,of weight to him. The exact weightcouldnnbt be obtained·'Ifr0m·the custom-hbuse. until May 6th, when if Was fch;md to beabout' :28 cwt. short of. 300 tons.. At :about 4 ,O(thl;l 4th, after all,theore had boon put into the canalboat, Henderson Bros. caused; the. ore to be attaehed by the marshal upon a libel 'filed iIi this c0l;1rt 01:.1 .that day. On May 5th, the consignee filed the cross-libel. claiming $3,000 damages for an alleged willful and wrongful refusal to deliver the ore on request. On May 6th, Henderson Bros. sent Mr. Marvel a corrected bill, stating the true weight and amount of freight due,being $3.78 less thaIl the former bill. On the 10th, a tender o(the true freight was made by Marvel,and delivery of the ore demanded, which was refused withdut explanation; presumably on aol:lount of the 'two suits pending and the charges therein. Mr. Marvel deSigned to send the are to Jersey City; but when it was attached no tug was present toreIl1ove it; and the captain .of the canalboat testified that he was notified by Henderson's dock clerk not to take her llway until the was settled, and that he agreed not to do so. The are remained in marshal's possession until sold by him as perishable under the order of this court dated May 23d, after due notice to the consignee and his proctors; the consignee having taken no steps to bond the are as he might done. It brought $1,230,-about $900 less than its value, as claimed by the consignee. Both parties were .of abundant pecuniary responsibility,and .0Cgood standing.. .. . Wing, Shoudy Ptttnam, (a.. O.l)urlinaham, of counsel,) for the steamer. & consignee. . . . BROWN, stating the/acts above.) This controversy has grown , out of an attempt of Henderson Bros., in conjunction with the managers to establish a regulation for the , of other lines of Medit!lrranean provisional I'll-yment of freight Itt their respective offices according to weiglJ.ts namep. in the bills of lading, before the actual delivery of the goods, leaving the correction of any errors therein to future adjustment. after the weightis ascertained; like the custom-house usage in the provisional and final liquidation of duties. A joint circolar to this end was previously issoed in December, 18.81, which seems not to have reached Mr. Marvel. . ' payment ofJreight;an,li delivery of the cargo, as a whole, areby the legal rule made concurrent acts, great practical arise, if the quantity is large, and each side stands on its legal rights. The amount may be so great that part. of ,the cargo may have to be removed before the rest is discharged;.. ap.d., if the consignee refuses to pay pro rata 'frejght on what is removable,or.to give security for payment, the ship is noi bound to, deliver piecell)eal, and may remove and store such parts as are necessary to be removed at. the consignee's expense. Brittan v. Barnaby, 21HQw. 527, .534; The Kathleen Mary, 8 Ben. 165, 170. See The Tanqier, 3.2 F.ed. Rep. 230. .. . 1. The of the terms of this bill oflading was to make payJI,lerit of freight and delivery of the goods concurrent. Although the bill "
as
.'
.
HENDERSON V. THREE HUNDRED TO:NB OF IRON ORE.
39
of lading reads, "Freight being paid on the 'cwt'. delivered, aB per margin," and the margin says, "300 tons," I cannot hold that the words "as per margin" qt1alify the previous restriction to the cwt delivered, or that they even: ma.ke the 300 tons named in the margin any such prima facie evidence of the freight due as to warrant the ship in holding the are for that amount, without taking any steps to ascertain how many cwt. were delivered. Under the clause "weight unknown," the statement of "300 tons," in the bill of lading, was not even prima. facie evidence as to the weight against the ship, when it appeared that all received was delivered. The IE!I1ULele, 14 Fed. Rep. 491; MatthWJ8en v.Gv.Jli, 29 Fed. Rep. 794. It was the ship's duty, therefore, to flE:certain thA weight; because she could not lawfully continue to hold possession of the cargo after the consignee was ready to receive it, without informing him, as soon as reasonably prllCticable, of the amount of freight to be paid. Nine Thou-: sand Ox Hides, 6 Ben. 199, 202. There is no such ambiguity in the terms of the bill of lading as to permit their legal effect to be changed by any proof of custom, or by any regulation sought to be imposed by one of the parties to the contract without the consent of the other. Anysuch change, extremely desirable as it no doubt is, in such cases, for the con· venience of both parties, conld only be made by mutual agreement, or by further stipulation in the bill of lading itself. Brittanv. Ba'f'rIiLby, 21 How. 527, 534. The commencement of the suit on May 4th-two days before the weight was ascertained-was therefol'e premature, since thelibelaht did not know how much he had a right to demand, nor the consignee ,how much he was reqUired to pay. All costs and expenses incident to the premature bringing of the suit must therefore fall upon the libelants. One Tlwusand Two Hundred and Si?:ty-Five Vitrijiec! Pipe8, 14 Blatehf..274'-' When the tender was shortly afterwards made,-on the 10th,-the con-' signee having ascertained the true weight in the' meantime, as hehada right to do, though he had no right to demand a mIstom-house icemficate from the libelants, the latter had no right to claim indemnity for the costs and expenses up to that time, but should have accelJted the'tendel'. and discontinued their suit. The time taken by the consignee to determine upon this course, rather than to bond the goods in the usual waYt was not unreasonable. The tender not being accepted, the continuance of the suit was at the libeJ.ant's risk of all the subsequent legal costs and expenses also. Had the. cargo not been sold, it must, upon dismissal of the suit, have been retvrned to the claimant free from nIl charges and expenses for its arrest and preservation; or, rather, all such expenses would have been chaTged against the libelants as taxable The Georgeanna, 31 Fed. Rep. 405. In this case it was the gteatexpense of keeping the property that made it '·perishable." The sale was to avoid that; -and the incidEmtalexpenses the' sale stood in the place of further e::qlense in keeping- the property. Though the proceeds of sa'le 'represent the ore; and bound, the claimant thereto, so far as relates tOitM prices that the ore' brought,' aeto all the expenses the claimant ought not to be put in any worse position in consequence of the sale; and all these charges must
40
FEDERAL REPORTER,
vol. 38.
therefore be borne by the libelants. The refusal of. the tender prevents the libel:lnts from benefiting by the fact that the previous inchoate right ofsllit had then become perfecte4, (The Martha, BIatchf. & H. 169,) and the special circumstances do not exist here upon which recovery is sometimes allowed in suits premature at the start, (Eight Hundred and FortyOne Tons of Iron Ore, 15 Fed. Rep. 615, 25 Fed. Rep. 864.) 2. The cross-libel suit commenced May 5th for the recovery of $3,000 damages was also premature; for the ship still had not only a lien on the ore for the unascertained freight, but also the right of possession, and the right to prevent the ore going out of her presence or c;mtrol. The discharge: into the canal-boat along-side was no waiver oj" either right. That was not dOlle for the purpose of putting the ore under the absolute possession and control of the consignee, but for mutual convenience in the handling and weighing of the ore in the prooess of discharge, and to enable the consignee to remove the ore immediately when he should become entitled to its possession npon payment or tender of the freight ascertained to,be due. Had any attempt been made to run away with the ore, no doubt a libel and an arrest of the ore would have been sustained to maintain the ship's right of possession, as repJ.evin or trespass ,,-,"ould lie upon any similar unlawful attempt to remove the ore, had it been discharged upon the dock. Neither the libel nor the proof shows any such attempt or intention . . : The filed May 5th, and served the same day, alleges only that the carriers "willfully and wrongfully refused to deliver" the are, i. on or before the 5th of May. As no payment or tender of freight had then been made, the refusal to deliver was not wrongful, but rightful. The supplemental cross-libel filed in March, 1883, "reiterates the allegations of the libel," and saysthe weight and freight were ascertained or about May 5th, and that thereupon" the amount due was ten.dered, but delivery of the ore refused. But the weight was not ascertainable till the 6th, and the tender was not made till May 10th; so that it atillremains true that the. original cross-libel was premature. No cause of action existed when the vessel was arrested on May 5th, and the rule of pleading is that a bill wholly defective cannot be sustained through a !3upplemental bill founded on matters arising subsequently. Candler v. Pettit, 1 Paige, 168; Pinch v. Anthony, 10 Allen, 471,477; Mason v. Railroad Co., 10 Fed. Rep. 334; Muller v. Earle, 37 N. Y. Super. Ct. 388. The original libelants, had they accepted the tender, would have been entitled on delivery of the or.e to a dismissal of the cross-libel, with costs up to that time; and as the tender was not followed by a deposit in the registry, in accordance with rule 72 of this court,it would have had no effect upon the liability for the subsequent costs upon dismissal of the original suit. The counsel for the cross-libelant, apprehending that his suit might be held to be premature, had, after the tender, again arrested the vessel in the district court of Massachusetts for the refusal to deli vel' after tender; and thereupon moved here for leave to discontinue the cross-libel, and .pay costs. It was opposed on account of the great inconvenience to both
e.,
HENDERSON t1. THREE HUNDRED TONS OF IRON ORE.
41
1>ides to try the case in Massachusetts. The motion was denied, with leave to file a supplemental libel to the same effect as the libel in Massachusetts, and the supplemental libel was to be treated as an original libel as of that date. Under this order the consignee is entitled to have his claim'to damages adjudicated upon its merits. The precise nature of this claim of damages is not explained; whether for a conversion of the ore by refusal to deliver, or merely for damages for its detention. 'Treating the claim as based on the tender and demand made on May 10th, I think no recovery can be had, either as for a cOnversion of the ore, or for its detention. The ore was at that time in the custody of the law, under valid process in a pending suit, brought bona fide in a court of competent jurisdiction. Mr. Marvel had full notice of the suit, and easy means of availing himself of the simple remedies provided by law. The libelants were merely pursuing a supposed legal edy in the usual way. There was no intent to appropriate the goods to the libelants' own use in any other way than the law might adjudicate, and they had an undoubted lien on the are 'all the time.' A refusal 'to de:. liver, under such circumstances, was plainly no evidence of conversion, nor'could it be made the basis an independent suit of any kind. The refusal was a legal mistake; but not such a legal wrong as to constitute a. basis for an independent suit in admiralty. The consignee was bound to seek his relief by appearing and defending in the original suit, and was limited to the ample remedies therein afforded. Stiles v. Davis, '1 Black, 101; Hall v. Waterbury, 5 Abb. N. C. 374. That ll.libelant is not ordinarily responsible for the detention of a vessel or other property while in the custody of the law under valid proceedings in rem, though the libel is ultimately dismissed on the merits, has been repeatedly adjudicated by the highest authority. In the :case of The Evangelismos, 12 Moore, P. C. 352, where the wrong vessel was sued for a collision, and was detained in custody, and also in The Stratltnaver, L. R. 1 App. Cas. 58, 67, it was held that though such damages, if recoverable at all, could be adjudged in the admiralty practice in the original suit, yet no such damages for detention while in custody could be given in the absence of "proof of mala fides, or malicious negligence in the libelant." In the present case there was neither bad faith, malice, nor gross negligence. The same rule was applied by Judge CHOATE in this court in the case of The Adolph, 5 Fed. Rep. 114, in declining to order securHy for damages by detention after the dismissal of the libel against a vessel still in custody, during the 10 days allowed for appeal, on the ground that such inconveniences must be suffereu in,cases free from malice or bad faith, and that the rule!l providing for the release of the res on stipulation, or for its sale, were all t.he relief designed by the rules of the supreme court against the hardship of arrest. In the case of The Peri, Lush. 543, Dr. LUSHINGTON also refused to order security for damages during detention. It is urged that the are brought at the sale pendente lite about 8900 less than its market value; and that, as the suit was improperly brought, the libelant in the original libel ought to make good that loss. Bllt it is
of
42
FEDERAL'
vol. ,38.
clear. that this claim stands upon at least nQ thana claim for detention. The sale was the act of the court in a.somewhat higher sense than the arrest under process, sincethe sale could Qlily be had upon a special order. But both claims are excluded by same principle that allows a party to resort fide, to the proper tribunals for the enforcelfnent,ofhis supposed rights, without in case of failure, than the law itself prescribes. ,Ii' ' The general rule is that damages to person or prQ:r>erty arising in the progressofa suit regularly instituted .in good faith, and.under the process of a court havingjurisdiction, are not recoverable beyond the taxable costs and expenses, unless:the law has required security for damages also., Upon this point Judge Cooley "It is the law(ul right of every mao who believes he has ajust demand againstand>therto i08titu'te asuitand endeavor to obtain'tbe proper redress. ... lie lie To compel him, as t/lepenalty, for instituting a suit he cannot is generally all that is just, and is sustain, to pay the costs of the sufficient to rnake persons cautious about instituting snits which they have reason to belill"te are baseless;" : ,QoolEiy, Torts. (2d Ed.) 207. ,1 ' ( :', ,.'" '". TheexceptiQns are where the process is void,or hIlS been vacated\ for being irregularly ,issued; Of, where the suit or prosecution was instituted malioiously,and:without.probable cause, or in bad faith, which amounts to a,willful abuse·;Qf the ,right to sue, (Fischer v. L(lngb.ein, 103 N. Y. 84,8 H.E. Rep. 251; Markav.. T-ownsend, 97 N.. Y. 590; Landt \7,. Hilts, 19 Barb; 283; Hayden v.Shed,l1 Mass. 500; Barkf!/l' v. Stetson, 7 Gray, 53; Langjordiv. RGtilroadG'o.,144Mass..431,1l N. :JU. Rep. 697.j) and the malice or w$.utJof probable dauaemust be alleged and proved" (Go{:llin v. Wilaock,2 W;ils.302, .307;:Cardival v. Smith; 109 Mass. 158.) Here nothing of tha,t:kind is pleaded or proved. In 110 bond wa's. formerly reqqired to. be given for the arrest O('ll ,defendant: or an attachment of Tidd. Pro Bonds, as well:1lS security for damages, were step by istl!lP required in this stare by theaots of 1824 and 1831, and by the Revised Statutes, (1 Rev. Laws.N. Y. <:.. 49, § 7; 2 Rev. St. ,*4, § 12, Id. § 29; Bennettv. Brown,4 Comst.. 254; Act April 26, 1831, § 35;) and on dismissal only the legal "(Josts and expenses" .were recoverable, UrilesBthestatlltory bond included ":dlimages." Van HQvenburgh v. Case, 4 Hill, 541; Dunning v. Hurrvphrey, 24. Wend. 31; Groat V. Gillespie, 25 Wend. 383; Earl V. Spocmer,3 Demio,246. ' . .. There is nO,Buggestionin this case that the sale pendente lite was not fairly made; and t being under a.valid order of the court, it protects. all parties the purchaser, who acquired title under it. The Trenton,4 Fed. Rep. 657, an'dcases cited. When the process is void, trespass or trover lies; and, of course the full value may the11 be recovered, because the process affords no justification. Drake, Attachm.§ 185b.; Wehle V. Butler, 61 N. Y. 245. , But m.ere' dismissal of.the original suit, or a reversal on appeal, on grounds notaffeytingthejurisdiction 1 do not affect the. validity or regularity of the otiginal process, or of sales pendente. lite,. .Story; Confl.· Laws,
§§ 592,593; Strihge;. v. itiS1,tt'4riCeCo., L:'lt4 Q.B.676; Imrie, L. ,R. 4 H. L. 427; Groat v Gillespie, EI1:rl v. Spooner, supra. :In admiralty causes, incases like the present', there arespecial grou,nds for denying any such qalnages. The ,sale was n1'adeto prevent the property being .eaten up by charges. The result of the suit was uncertaill, and thesaie was presumably for the benefit of all interested. Pollard v. Baker, 101 Mass. 259. The owner had personal notice, not only of the original arrest, but of the application to sell. His proctors, after several postponements, finally did not appear to oppose the motion. Had he desired to avert a sale, as he was entirely responsible, it was easy Jar him at any moment to obtain a release of the goods by the usual practice of the court, upon giving a bond to the marshal under theaet of, 184,5, without the payment of any charges whatever, (The Geargeanna, 31 Fed; 405,) or by stipulation given under rule 10 of the supreme court. As he voluntarily abstained from availing himself of these simple' and perfect remedies, a court of admiralty, which acts upon equitable principles, ought not to entertain a suit for alleged damages that have thus, in effect, been voluntarily incurred. He was bound to pursue the remedies provided, or abide. the result. The Adolph, 5 Fed. Rep. 114; Stringer v. InBumnce (Jo., L. R. 4 Q. B. 691. If such suits were to be entertained and damages given, it would virtually put an end to libels in rem upon boria. fide controversies; since no responsible person could safely venture to arrest the res, if through some mistake of law or fact,as might be subsequently determined,he must respond for alreonsequentialdamages that might arise in the. proKress of'the ,ca:use. without his,'fault. Great temptations to fraud would also be offered··through by the claimants at low prices,i,under cover of 'Other nominal purchasers, while large damages would still be demallded. Had the claimants in the cross-libel against the Scandinavia lert her an,d allowed her to ,be sold, instead of bonding her in accordancewiththeusualppractice, a much larger claim of consequential damage might probably 4ave been presented against the cross-libelant. The absence orauthority, however,even in common-Ill,w for the allowance of any such damages except for want of or for malice or bad faith, neither of which exists here, is conclusive proof that, in the absepce of statutory provision, no such right exists; and wore clearlysti,ll'it cannot, under the existing J;'ules, he properly the law, and practice of ,thell.clmiralty. The treated as an' suit, must therefore pe dislllissed, with costs. ," The entire proceeds of the are having applied either to the payment of the freight, ($804.72,) which was a lien upon it, or to tne' fees, costs, ang charges attending the arrest, custody, and sale oOt, the cpnsignee ii> entitled to bix all these costs and charges against the libelants as a parfof h.iil costs on the dismissal of the original libel. The libelantS are nofetititled to interest on freight in conseCluence of their, reft.sal of the tender-made to them. .The amountpaid from the fund' onaccbunt offreight, was $928.17.' As'intel'est is not too much; and the claimant 'is therefore entitled to a decree for the ex-
4.4
cess, with interest from December 24, 1887, the date of payment. The disbursements for the arrest and sale of the ore amount to $409.87. From this znust be deducted, however, $24 for six days at the rate of $4 per day, part of the item of $120 paid out of the fund for the use of the canal-boat. The libelants having discharged the are into the lighter at the claimants' request, the charge for the use of the boat until the freight was tendered on the 10th was a legal charge against the are; and, if paid by the libelants, it would be added to their lien for freight. Brittan v. Barnaby, supra. Being paid from the fund, it is paid by Mr. Marvel, to whom it is properly chargeable. This, with $2.40 interest included in that payment, leaves $383.47 to be taxed for these items in favor of the claimant in the original libel, besides any other taxable disbursements. . :path libels are dismissed, with costs. Decrees may be entered all above.
. ANDERSON fl. THE f(JirCtlit (
E. B.
WARD, JR.
OourtS. 1J.Louiaiana. February 15; 1889.) ,
L
SmpPING-Lu.BILITYOF VESSEL FOR
Where.a;steam-ship is given the key-berth in a Wharf previously occupied by another, and the latter is moored outside, with no means of communication . with the what! other than across the deck of the innervessel, negligence in permitting the deck of the inner vessel to be:in a condition unsafe for passing over it to the outside vessel is a marin"! tort, within thejurilldiction of the admiralty courts. . The hatchway of a fruit vessel occupying the key-berth a wharf, and havJDganother !vessel moored outside, was open in the night. according to custom. but had a coaming of about 12 inches, and was ligllted by a lamp from theniast at one end. The deck was well lighted by electric lights on shore, and had across it from the gangway a clear passage way of I) feet, over which was a lamp. Libelant. While intoxicated. and attempting to cross the deck to the outside vllssel, to which he belonged. fell thehllotchway. and was injured. Held, that he was g'uilty of contributory negligence.
2.
SAME-CONTRIBUTORY NE·GLIGENCE·
Admiralty. Libel f(ir damages. On appealfroln district court. Libel by Peter Andersori against the steam-ship R Ward, Jr., for for tiegligence.' Decree for claimant, and libelant appeals. H. 1I. Brj/anand A. C. LeWis, for appellant. J; W.Giirtey, Jr.., for .. ., ..
·. . On the 16th day of Mav, 1887, the steam-ship E. B. Ward" Jr.,'loaded with the port of New Orleans; and theJrui,t whar(li,t tl1efoqtof Calliope street. before, Qccppied by Marmion, also engaged inthe being moved out, the Ward was given the and the Marmion moored just outside and to the Ward.