.'tIiE em.ES. LOBDlQ.
'{68
"Alpers'
carcasses attaoh6$ in all suoh cases within hours' after the deatnot the animal. All removals must be made either by the owner or person in whose possession the animal is at the time its dea.th, .or,by their immediate serva,nts, and employes, or by Alpert!. If made by the owner or person possession, it must be 12 hpurs after death. In no event can such removalsbe.mada by independent cOntractors. ' Complainant is entitled to .$ decree enjoining respondent Lambert from infringing upon its exclu$ive rights under the contract.
of
in
THE GILES LORIN'G. SWANZyet oJ. v. WEBSTER et
al.
et al.
tI. SWANZY
eta!.
OOUTt, D. Maine. .April 10, 1890.) 1. LIBEL-LoBS 011' CARGo-CRoss·LIBEL-VALUE OJ' VESSBL-WIIEN MAINTAI1UDLB.
2.
,.'..1\ :brig .1;lUilt in
and extensively repaired in 1884. was chartered for a voyage to the coast of AfrIca. She encountered no severe weather on the outward voyage, or during the four months she remained on the coast, but before leaVing thero she was foull<l to be leaking badly, and to be. considerablywQrmed. and was· imperfectly repaired by on lead sheets. She sailed for Marseilles with a oargo not excessive for a seaworthy vessel, and shortly after ·enCountered a squall of no great severity. Almost immediately afterwards she was found to be leaking badly, and at once returned to the coast, where, after a surveYt she was condemnedl and 'tlO1 ....d... She was shortl.yafterwards broken up, and founa to be weak, rottelij and and with seams and open. Bew" suftloieJltto show that she when she left the coast. Injury to a vessel by worms is not a peril of the sea. OI!'THESEA.·
1J.
4.
SUIB-MASTER AND CREW·
a.
. Seaworthiness includes competent master, and crew, and upon chartering avesselfor a voyage to the gOld· coast of Africa., it is the duty of the owners, not onl, to furnish a competent master, but also a ll1ate. competent to succeed him in, case of his·death Qr disability., . DuTY OF MASTER-ExCESSIV,E CARGO., . . ... Although a charter-party provides 'that the whole of a vessel shall be a.t the chat'terer's dISPO.sal, with the right to put on: ·board·a full cargQ, it is still the master'. duty. to determine when the .limit of safe loading is reached, and, if an e.XC6ssive cargo i,put on board, the fault is that of the,owners, and not of the charterers. worins; 'it is tile master'lI duty to put oli additional copper if it can be procured. If a full carl<"o will submerge the copper on a vessel so as to expose the hull to TO WORMS: .
a
·
,
:ene master of a vessel, being l\Qout to die On the gold coast of Africa, an,d haTcompetent.to.BHcqeedhim, request94 the of anothe! Wils,sel, l)elongtti4':to the saD;le ,; owners, to supply1.,some ; . ' to take.:!charge, ThlS was done, on.e · ': .. " "" ' '.1_'_ ." ... ' '. ;
464 and the< perilon was !paster br the A.!,Ilerlcan .1le74. gave him authority· t.o act assucb, and the owners were liable for his JIl&n· ., , " "
8. . ., 9 ,
S:B:IPPINo-;..LIMITATION OF
.'J;heship-owners' limited liability act (Rev. St. U. S. 4288) appliell to an unjusti. fiable sale of cargo by the master on the coast. of Africa after his veaselbas been !condemned as unseaworthy· ·et'll intllrest In the vessel and the freight then pending, this amount must be deta1l:ing of the vo.v;age; .aUd .when avessel.Is condemned and sold before reachIng her filial destinatIOn, the extent of such liability is measured by ber value at the Wme of the sale and the freight then due Under the terms of the charter. SAME-FREIGH'r AND DEMURRAGE.
Oil" CARGO llY MASTER.
.nll enent of the liability being restricted by the aot to the &mount of the own-
011 LIABILITY. .
.
10. 11.
The words "freight pendinli," lJ,B.used in the act, include demurrage due at the termination of tho voyage.
SAME-PRIORITY OF LIENS-RIGHTS OF OWNERS.
The owners of a vessel cannot determine for themselves the priority of liens upon the fund representing their liabUity under the limited liability act, (Rev. St. U. S. § 4283;) and the fact that ·they Mte voluntarily paid out part of the fund in discharge of liens supposed to be superior to the claims provided for in the statute does not reduce their liability to dillchar.ge· those claims to the full extent of the fund as it originally existed. Act Congo June 2ll; q. 121, § ·. St.p. 67,) provi'ding that "the individual liability of a suip-owner shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole," applies to the liability of oWllers under the limited liabilityaot, (Rev. St. U. S. § 4283;) and to the extent of thefurid representing their lilibility thereunder they are bound, not in 8oliWo, but only in proportion to their respective interests in the vessel. TO ENFOROIII.... CloSTS.
12.
SAl\[E-!NDIVIDUAL LIABILITY.
18,
W1:\en, ina suit to enforcatha limited liability of the owners,the decree is 'against them, thay are liable in BOUdo for the costs. .
.,
In Admiralty. Libel by the charterers of the brig Giles Loring owner, and cross-libel by the latter. DeoreEifor ·libelants, the cross-libel. . and Ohalf'liJs:TModore RU88eU, ·Jr.,and Clarence Hale. for libelants. Bemj.a,min Thompson;.for respondents.
.Grand Bassam·and Whydab, both included, vessel at all times to lie afloat in 'isafeaBcborage, and to enter no rivers and cross no bars for discharging outward cargo, and loading a return cargo from a final port, either to Boston, united kingdom, or.continent, at charterers' OptiOD; and It is understood that, ;duritig atay on the coast, charterers or their agents ShaH have the right ,to· order tbe,ve8sel at any time from 'one port OD the coast to another, at such tilItes :a:ridiil 'such manner as 'they may see fit, on the terms follOWing, that is partyofthetirst part doth engage that the said vessel and during the said VoYage shall be kept tight, stauch,well fitted, tackled, and'l1Tovided; Wi.th. .requisite, and with meDand provisions necessary foriSllict yoyage.' SeconCZ. whole vesseillt for 'the 'Voyage; except necess'ary foom for crew, sails, cables, and proYision.
WEBB,'J. These controversies arise from a charter-party executed by Swanzy et al. as charterers and Benjamin Webster, agent and managing owner of the brig Giles Loring, June 9, 1885. The brig, then lying at Boston, was chartered,"Jrpr a voyage from Boston toports on the west coast of ifrica, between
THE GILES LORING.
465
Thi,'d. The said [owners] furtherenR'age to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as said party of the second part, or their agents, may think proper to ship. "And the charterers covenant and agree to hire the vessel on the terms fol. lowing: ." First. 'they engage to provide and fu.-nish to the said v.essel a full and cargo of lawful merchandise under and on deck, or at all times sufficient ballast to cOJ;ltinue the voyage; and it is understood that one-half of this charter is earned and payable on proper delivery of outward cargo, and that the chartererssball accept the captain's sight draft on London at $4.86 tothepQ:und sterling for the said half; and it is understood that the charterers s.hall furJ;lish the captain, while on the coast and other foreign ports, free of charge or .commissions, any money needed. for vessel's disbursements. Second. 'to'pay for the charter or freight of said vessel during the voyage aforesaid lit 'manner followili'g, thatls to say: .$5,300 llimp sum for the round voyagedf vessel returns to Bostoh direct; but, if vessel is ordered to Queenstown ol'.Falmouth, for orders to discharge. at aport in united kingdom,oron thecqn.tinent between La Rochelle and Bamburg, $6,400; if to Gibraltar'or Lisbon, for ordeI;s to discharge there, or. at a port II?, the Mediterranean, not elU'lt ofMarseilles, $6.800,-charterers to h,lj.:ve the privilege of one port of call arid One'port of discharge only, port of call or discharge to btl named on signirlgbill of lading, and' forty-eight honrs 'allowed -chinterers at port of call. Charterers to pay all'vessel's foreign' port charges. such as pilotages, lighteragftkCustom-house and consul's fees: balance of freight payable in U. $. currency, or equivalent, on proper delivery of homeward, cargo. "It is fur.ther agreed between the partie& that there. shall be allowed for the loading and discharging of the vessel at the respective ports aforesaid lay days. as follows, that is to say: Ten (10) runnIng Jay days, Sunda,rs excepted. for loading at Boston, seventy-five running lay days, S\lndays excepted, for discharging and It>ading on'the coast. commencing twenty-four hours aftel' captain reports his vessel ready to discharge cargo; .time used changing ports onihe coast to connt as lay days; homeward cargo to be discharged according to the custO!D of the. port, crew. to help dischargi ng and loading on the coast, but not togo in boats for the purpose of landing or shipping cargo; and, in case vessel is longer detained, to pay demurrage at the rate of thit,tyeight dollars and fifty cents' 'per day, day by day. for every day so detained, providedfluch detention shall happen by default of party of the second part, or their agent. "It is fllrther agreed that, in going up and down the coast, vessel shall at any time charterers or agents may desire take on board and deliver any lawful merchandise, free oC charge at any factory, and in such manner as may be desired by charterers or their agents." The vf;ssel was loaded at Boston, with a cargo suitable for the voyage she was to make, including a deck-load of lumber, and sailed from that port June 24, 1885, with a captain, first and second mate, cook,and four seamen,-eight in aU,-and arrived on the west coast August 24, making Grand. Bassam as her first African port. Before the outward cargo was discharged,-indeed, while more than half still remained on board,-some small portion of the homeward cargo having been taken in, Eva/ls, the captain, died, October 8,1885. Before his ing that his mate, though an experienced sailor, was wholly incompetent to command of the vessel, the captain communicated with Capt. . v.48F.no.6-30
FEDERAL REPORTER,
vol. 48.
ifilot 1:>Y' the ownera of.the Loring, anqrequested. J;1im to look after tQ.e interests of the vessel, imd supply someone to take charge of her. At the time of her capt./lin's death, the Giles,LoringwaI!: lying at Cape Coast, about 18 miles from Salt Pond, where the ,Emma, then was. Capt. Smith at once pro:t!eeded Cape Coast, an.d, by persona] examitiation that no one ofth{:Loring's crew sqitable for the position of captain, Qrought her to.Salt Ppml, .that hll might the better lookafter her. The.rehefinally put one George :Klose, who had been acting as his own second' mate, in temporary command,,. and the brig proceeded under this <>fficel'(on ,her business of dischargihg'outward, and taking in homeward, cargo.'qapt. Smith pr0tllptly 8:'dtise4 the owners of theqeath ofCapt. Evanlil,4Sc;lid also the charterers ftJtn LOndon, immediatj31yupon receiving, a,geqtson of the ,fact. . There was no. eoWmunicatioll by: telegraph ,between the coast and ·England. .'the shortest possible communication was by steamer to Grand Cusang, a passage that was made,\1sually il'r a.bout a fortnight, and thence by telegrapht<) England. By' lnail, ther¢ wElre and the sage made 24 ·. 'the dispatch communicajjng the captaill's death was: dated London, October 27, 1885, viz.: ".Capt. Evans died eight. Ship ,lying Cape Coast, one anchor lost. Mate says cannot takeship·homel;:' Men refuse sail under him. Shall we cable engage master froI'rJistean,ers?" .Reply, (date given:) "Put competent, man on board Giles LorlQg as m(i.ster" and 190kout for vesin every way. '" The charterers thereupon out Qapt. Williams to .the position of captain, but, before he arrived, on the .coast, the American consular agent at Elmina, a port some seven miles fronl Cape Coast, had ,appointed Klose master. Being informed 'on his reachin'g Cape this appointment, Capt. Williams did ,towards or'to ga,in of the vessel, but at opce returned to He was of the state of things 'by the charterers' agent at Cape COR$t., Under the command of Klose, 50 constituted master, the brig proceeded from port to port on the coast; taking inanddischarging'cargo, ,a;ndcompleted' loading January 4th, and cleared and sailed'for from QuittahJanuary '.the carg6 at this date consisted . tons of palm kernels; according to the bills of l.ading; but as to the amount the bills of lading cannot be considered qonclusive, for they were qualified by the marginal entry "quantityUI1known.'" On the 18th or 19th of January the.vessel encountered a squall or tornado, of short duration, after which she'was found to be leaking badly, and 'she returned to Elmina, where she arrived February 4th. Here a survey was had, and the brig was reported unseaworthy. She could not be repaired at Elmina, and was' finally beached and sold for £,57 I Before she was beached; about onehalf of her'cargo was transshipped "by' steamercaIlibg at the. port where she lay. 'The remainder, excepting about 40 tons,was landed. What became of the 40 tons is notplairifrom the evidence. ' The.captain sold
THE GILES WRING.
467
aU the cargo that was not transshipped, though he appears to testify that 40 tons were so damaged it 'Was not salable. Some was sold at auction at sundry times, and some at various private sales. The proceeds of the sales were all received by. Capt. Klose, and used to pay crew, and various expenses, or for his own necessities. This is a general outline of this most unfortunate business. The charterers libel for damages for breach of the charter, and the owners promote a cross-libel for freight and demurrage for 45 days, for wages of laborers hired by ship, the charterers failing to furnish the men, as provided by the charter, and for the value of the vessel, alleged to have been lost by the fault, misconduct, and wron¢'ul acts of the charterers and their agents on the coast. It wBScontended on the part of the charterers that the libel of the owners is not properly a cross-libel, but, upon a ruling adverse to this claim, they entered into a stipulation to answer to any decree against them, and put in an answer. I have no doubt of the correctness of the ruling on this point, as both parties assert their claims under the charter, and on its observance or violation their respective rights depend. The specific breaches of contract asserted by the charterers are-(1) Failure to deliver cargo, by reason of unseaworthiness when the brig sailed from Boston, in the condition of the vessel herself. anel in not having competent and sufficient officers and crew. (2) Failure to keep the vessel in a seaworthy c6ndition during the voyage, and sailing for Marseilles when it was known that the brig was unseaworthy. (3) :r.ailure to forward the cargo from Elmina after the brig had been condemned, though vessels could have been easily and readily procured to carry it. (4) The unjustifiable sale of the cargo by the master after the voyage was broken up. The owners contend that the brig was seaworthy when she sailed from respect, save the want of a competent mate, and that Boston in this failure did not contribute to the subsequentlossj that if the vessel afterwards became unseaworthy, it was because of the wrongful acts of the charterers in overloading for the outward passage, and in unduly detaining the vessel on the coast, and keeping on hoard of her the outward cargo; that the want of a suitable master after the death of Capt. Evans was through the fault of charterers in not providing a proper person, as they are alleged to have unoertaken to do; that the vessel was seaworthy when she set out from Quittah for Marseilles; that the failure to perform the charter was caused by perils of the sea after sailing for Ma-rseilies; that they had never authorized Klose to act as captain, nor recognized him as such, or as in any way their agent; and that his possession of the vessel was through the fault of the charterers or their agents, and that for his wrongful acts and omissions they are in no wise responsible. . The Giles Loring was built in 1865, and in 1884 received extensive repairs, after which she was given a class of A U. On her outward passage the evidence shows she leake,d some, but not enough, without
468
FEDERAL REPORTEIt,
other .faots, to show that the vessel herself was unseaworthy at the date of the charter, or when she sailed from Boston. Neither does the evidence seem to be sufficient to justify any conclusion that there had been any material injury to the vessel by worms up to that time. The evidence as to the weather on the outward passage is slight and somewhat vague. The log-book has not been produced, and the only witness is the mate, Grant. From his testimony it is to be inferred that the passage out was with favorable weather, and that neither winds nor seas to test the strength and sufficiency of the vessel were encountered. But after she had been for a time on the coast, without, so far as appears, any more severe weather, the leaking greatly increased, and before she set sail for Marseilles she was found to be wormed and in part rotten. Grant testifies' that in his judgment she was not seaworthy for the passage to Marseilles; He says he so told Klose, then in command. Klose does not deny that .Grant so told him, but only says he has no remembranceo.f:iit.'.. It is certain that some repairs were made by caulking, and by tacking 6n: sheet-lead above the copper. Nothing very thorough appears to have been attempted. Better material than sheet-lead could have been' procured; indeed, Capt; Klose at one time ordered copper or metal, but.Ainding the leak diminished by the use of the lead and the caulking:that:had been done, did not use it. Though the presumption is in faVior oft.seaworthiness, and the burden is on the party denying it by soma 'sufficient evidence to remove it, this may' be done by proving the existence of defects amounting to unseaworthiness before she sailed, or that she broke down during the voyage, not having encountered any extraordinary action of the winds and the waves, or any other peril of the sea, sufficient to produce such an effect upon a seaworthy vessel, or by showing that an examination during the voyage disclosed such a state of decaY' and weakness- as amounted to unseaworthiness" for which the lapse the occurrences of the voyage, would not account. Bullard v. In81M'ance Co., 1 Curt. 155. The evidence of this character is that the brig sailed from Boston June 23d, arrived on the coast August 23d, without experiencing heavy weather; that she remained on the coast, going ftom port to port, and at no time taking ground, till January 4th following; tha:t before this last date she was found to be leaking badly; and to be considerably wormed; that she was imperfectly repaired; that' while on the coast she had no severe trials of wind or sea; that she sailed with a cargo not excessive for a seaworthy vessel of her capacitJj that in about 14 days after sailing she met a squall of short duration, and no great severity, and almost immediately was found to have three feet of water in her hold, and almost constant pumping was necessary; that she reached Elmina in about 16 days of moderate weather, and there, upon a survey, was condemnedanrlsold; that not long after her sale she was broken up and found to be weak, rotten, wormed, and· seams and butts open. This, taken in connection with her age, leads me inevitably to the conclusion that; notwithstanding the efforts of the owners in 1884 to repair and make her strong, she was un-
469
seaworthy before she had finished loading on the coast of Africa. I do not deem it importa,nt to determine. whether she was seaworthy when she sailed from Boston, for, by an amendment of the libel, all claim for damage on the outward cargo has been abandoned, and there is no pretense that any damage. was suffered by the homeward cargo, as long as it remained in the ship. Indeed, the libelants constantly maintain that palm kernels, of which that cargo consisted, are not injured by exposure to salt water, unless very long continued. The condition of the vessel is claimed to have been occasioned by overloading at Boston, and by subsequent improper treatment on the coast, where it is said such proportion of the outward cargo was kept on board while the homeward cargo was being laden as to overload her, and that in this way beams were broken, strains were produced, and the hull kept submerged below- the copper, and exposed to worms, all by the fault of the charterers and their agents. This argument practically concedes the insufficient condition of the vessel, but, admitting that the particular method, of loading and unloading were as claimed, it does not e;xoneratethe owners. The charter obliged them to take a full cargo, and entitled the charterf;lrs.. to put such cargo on board, and for breach iby either in this :respect an action could be It gave no right to overload, nor compelled the receipt of so much as would en·danger .the safety, or exceed the proper carrying capacity, of the brig. But it was for the master to determine when the limit of safe loading Was reached. The quantity and storage of cargo was subject to his control. If more was offered than consistent with safety; he should have declined to accept it. The charterers were not responsible for the -captain's management. ".If the master or sailors ship a larger cargo -than .isproper, they aredollsidered in fault, and are liable for damages. Even if shipwreck ensue in consequence of the ship being too heavily laden, they are responsible." Ingersoll's Roccus on Ships and Freight, note, XXX.; Moll. De Jur. Ma,r. bk. 2, c. 2, §5; Weston v. Minot, 3 Woodb. & M. 436,446-448; Hunter v. Fry, 2 Barn. & Ald. 421, 428; :Sea Laws. 448, which may be found in 2 Pet. Adm. Append.p. 78; Jac. Sea Laws. bk. 2, o. 2, p. 94, § 4. This duty of the mnster also required him to see that his vessel was not loaded so deeply as to expose the hull to worms above the metal; and, ira full cargo would so settle his ship, he should have guarded against the danger by an additiou to the copper, if it could be procured, and that it could, is. shown by the evidence. It further appears that the copper was 11 to 11! feet high,. and that the load draft 01 this brig was 13 to.13! feet. So with a fuIlload, two feet or more of her planking would be Injury by worms is not a peril of the sea. Rohl v. Parr, 1 Esp. 445; Hazard v. Insurance Co., 1 Sum. 218, 8 Pet. 557; MIll·tin v. Insurance Co., 2 Mass. 420. "Where the owner of a 'Vessel charters her, or offers her for freight, he is bound to see that she if! seaworthY, and suitable for the service in which she is to be employed. 1:f be defects, known or not kz1.owll, he is not excused. He is
470
obliged. to keep her in proper unless prevented by perils of the sea or unavoidable accident." Workv.Leathers, 97 U. S. 380; Hubert: v. Reck1tageJ).,' 13 Fed. Rep. 912i'The Casco, Daveis' Ware, 192; Putnam v. Wood, 3 Ma.ss. 485. Independently of this obligation by law to keep in repair the vessel, the owners, by express undertaking in this charter, took on themselves that duty and burden. If it is considered that the absence of a competent master occasioned the loss, the responsibility does not Test on the charterers. It was the duty oHheowners to provide for such a contingency as the death of a captain,;especially on a voyage to the gold coast, by employing a mate competent to, take the place. Richardstmv. Winsor, 3 Cliff. 395. worthiness includes competent master andorew. The Vincennes, 3 Ware, 171. 'It is true that upon learning the death of the captain, and the incompetency of the mate, they made honest and prompt effort to supply the deficiency, by invoking the aid of the charterers; ,and the chartheir turn, in good faith endeavored to comply with the apterers, peal to them, and sent out a captain to take charge. The failure ·of the person thus sent out was not any fault of the charterers. After they had selected him, and given him instructions in· behalf of the owners, he was the agent of the owners, appointed at their request. If he had any authority as master under that appointment, he was, as master, the agent of the owners, and they were responsible for him. But no blame can properly-be. cast on him. He found on' his arrival that a master had been appointed by Capt. Smith. to whose charge Evans, when dying, committed the interest of his vessel, and by the American consul, which appointment gave Klose authority to act. and made the owners liable for his management of their vessel. The Jacmel Packet, 2 Ben. 109; Maclachl.. Shipp. 158; The Zodiac, 1 Ha,gg. Adm. 320; The Alexander, 1 Dod. 278; The Kenner8ley Oastle, 3 Hagg. Adm. 1-8; The Rubicon, Id. 9; The Tarmr, 1 Hagg. Adm. 1. The failure to perform the charter being through the fault of the owners in not providing a vessel that was seaworthy, and in not keeping her so during the voyage, they are liable for the damages arising from that fault. The amount of damage mU'st be decided on reference to a master; and, on the coming in ofthe report, the question of limitation of liability raised by the owners' answer will be properly presented. Frcmwhathas Leen said, it follows that the claim of the cross-libel for damages and injury to the vessel by misconduct of the charterers must be pronounced against. But the demurrage and sums paid laborers may be regarded in considering the question ,of damages. Those matters are therefore left for further discussion on the report ofthe master. . . ON MASTER'S .REPO:RT. (July 24, ,1891,)
WEBB,J. The report ofthe assessor oontains so full a finding of facts that, while not·8.<lcepting or approving his conclusion in respect to dam-
471
ages, the court has in Hall the data necessary for determining the amount of the decree. Whenthe:1iability of Webster et aJ,. under the charter was decided, the of demurrage and of limitation of liability were explicitly reserved. for further argument on the coming in of the port, and they are now to be finally passed upon, in connection with the sum to be decreed in favor, 'of the ,prevailing party.· No error is found in tbeassessor's determination as to the .fact or the amount ofdemurrage, and the same is approved. But I cannot confirm his conclusions in regard to damages. He correctly holds that the action of the master, Klose, in/selling any portion of ,the cargo was fiable, and was without the knowledge or authority of his owners, and that it has not since been ratified or adopted by them. From this unwarranted and wrongful conduct of .the master nQ small part of the loss arose. I concur in the conclusion of BROWN, J., in The .Amos D. C'4rver, 85 Fed. Rep. 665 t and followed by NELSON, J., in McPhail v. Willia1l18, 41 Fed. Rep. 61, tbat"the act of 1884, limiting the lia.bility ofthe owners Qf a vessel on account of the same, does not restrict tbeliability of owners upon their own personal contracts, but only tbeir liability on accQunt of the vessel." But this interpretation 01 the statute does not make tbem liable without limitation for violation of his duty on the part of the masowners' ter. The sale .of the cargo by him was wholly apart from contract; , It is indeed true that by reason of the contract he had the opportunity to meddle with the property of the charterers; and it may be, that, inasmuch as the necessity for landing the palm kernels or removing them from the Giles Loring would not have existed had the owners performed their contract that the ship should be seaworthy, they, in the absence of any law limiting their liability, wouldhavebeenresponsible for all the>subsequent loss.. But .here we hll.Ve a special loss from an independent causa,-the miscoilductof the master,-for whose tortious acts the' owners' are liable only to the extent of their interest in the vessel and pending freight. The argument has been pressed that the became bailees for hire, and owners of the vessel. under the sponsible for the safe delivery of the cargo against all hazards, the acts ofGod, public enemies, and and dangers of the sea aloDe excepted. To so hold would annul·the statute. exonerating owners from liability to respond beyond a limited measure for the fraudulent doings of 'l'he act of March 3, 1851, : embodied in Rev. St. §§ 4282-4284, added to the excuses anuaccepted risks of the carrier or bailee. "This is broad, and takes away the quality of warranty implied by the common law against all losses except by the act of God and the public enemy;" is the 'emphatic expression of SAWYER, J., in Lordv. $teoJm,,ship Cb., 4Sawy. 301., Would the owners have any.the less been bailees. or have stood in. any diffE'rent 'relation. to the cargo, if their vesseaworthy, and fit for the voyage, sel, being in. every, respect bad, encountered violent,· andcontinl1ed storms, and had been i by .the ,yinds.and tbesea :driven ashore and, helplessly wrecked? or if the loss had been fire,: or by, the willful and crhninal embezzlement of
472
FEDERAL Rl>;P<)RTER,
vol. 48..
themastar, mates, or seamen? Yet it would not probably be contended the owners, though bailees and carI!iers,were 'liable fOil losses so occasioned, if "dtme,'oceasioned, or incurred without their privity or knowledge," e:x:ceeding "the amount or value 'of" their "interest in the vessel and the freight then pending." In this case the facts forbid suspicion of such privity or knowledge. The vessel was on the west, coast of Africa; the bwnerswere in the United States, at this city ofPorUand. The captain of'their appointment had died of theooast fever. ,They had taken measures to provide a, suitable successor. Without any previous notice to theiu',tlndwithout their knowledgejthe American 'vice-consul had assumedtoplace Klose in command of,the vessetAs far as appears, Klose did:not-communicate with his owners, who could not be reached directly by telegraph, but'took hIs instructions and advice from the viceconsul who appointed him,-if indeed he acted upon any advice, and not:o(,h{s ovrn motion. The owners have not in any way ratified or approved \hlsdoirigs. There can be no pretense of privity or knowledge onthaiI'plu·t. Under such circumstances, the owners are entiUedto the limitation' on account of losses" done,occRsioned, or incurred" by the unWal'l'atlted'lI;llu wrongful proceedings of this captain, thus thrust upon -them,:, tho't1ghhe was still their captain, 10r whose authorized acts they wereansltemble; , Then what were those losses? 'They call be nothing but the value of thepalni',ke1lJlels sold to third partIes,- and the expense incurred by Burnett\1he chartere"s' agent, to regain possession for them of the 110 tons oftb'El cargo. These are the only losses attributable to the wrongdoing'()ff,the master. All expenses attaching to those 110 tons besides the aailbuntpa:id at the sale to secure them: are the same as they would have 'beel1df 00 sale had been' attempted, and must be carried to the account' bt'li>ss arising ,from the breach of charter as to seaworthiness of the \'(j§seL By statute the limited liability is measured by the value of thesbip and freight pending. These values are to be taken at the time of the termination of the voyage. Inthis case the voyage terminated at Elmina,'when the brig was condemnedftnd sold. The City of Norwich, Sup. Ct. Rep. 1150; The Scotland, 118U. S. 507, 6 Sup. Ct. Rep. 1174; The Great Western,118 U. S. 520, 6 Sup. Ct. Rep. 1172. "By the charter-party one-half of thEl freight was earned and payable on ri?ht delivery of the outward cargo from BORton to the west coast, and tha.t ,half was accordingly paid.' The other half was freight pending when the voyage terminated, and would be eRrned only on delivery of thtHlargo at its destination, before which it was of no value to the ·owilers. : The Oity of Norwich, U. S. 491, 6 Sup. Ct. Rep. 1150. As that portion of the freight was never earned, nothing is to be 'added oh its adCount to the value of the vessel, for t11e purpose of showing the anioU:nt of the owners' liability· The only evidence as to the ,vahle of the'vessel is that as to the price at which she was sold. No 'suggestion has been made of the inadequacy of that price, nor anything offered; to excite the belief that the value exceeded the £68. 198., the gross proce'eda of sale. This in United States currency is equal to 8335.09.
473
We have also the demurrage to be considered. The finding of the assessor in respect to it and its'amount is approved. But, in to the limitati(1)n of liability, it should be regarded as freight pending. It was an amount due from the charterers to the ship-owners fQr the prolonged use of the vessel. Though not technically freight, it partakes so much of the $imecharacter that it must be held subject to the same the earning of the vessel during the voyage or' charrule. It Qf whicJ1losses werecaus'ed by the itiisconduct ter, in the of the the master,for which, but for the limitation of the law, the owners would have been fully'liabie. There is, no,reason·for allowing them to collect and retain it, free from all duty of giving the benefit oUt ,to inndcent losers. "Demurrage is onlyexte,nded freight." Hall v. Barker, 134 Me. 343; Jesscm v. Solly, 4 Taunt. 53;' '''Freight'-signifies the earnings or profit derived by the ship-owner" or the hirer of a ship, from the use of iLhimself, or by letting it 0 others, or by: carAllen, 87, 91; rying goods for others." Minturn v. Insurance Co., Phil. Ins. § 327. "Taking all things into consideration, we are of opinionthatthis sum allowed in the name of demurrage ought to be considered in lieu of the earnings of the vessel 'which werfliost by the detention." . Coggeshall v. Read, 5 Pick. 454,460. "All hire or reward for the use of vessels is freight." Ben. Adm. § 286. The answer contaihS 'a statement that the proceeds of the sale of the vessel were appropriated to the discharge of liens of hjgher rank than the claims of the libelants. It i8 not for the owners to determine the priority of claims, or the distribution of the fund representing their limited liability. Neither is it their privilege to pass upon thequestioI\ ,whether they are',entitled to such limitation. There is a proper course for .them to pursue if they seek the protection the law provides against 'all claimants. ,They have not pursued that course, nor indio*p, except by the statement in. the answer referred to, that there are any: claims against them onaCOO1:1nt oHbis vessel, arising since the execution of,the charter in this case, other than those of the libelant demanded in these proceedings. As to these, demands. they ask the benefit,. of .the. Hmitation. They can have a limitation, but cannot, by their voluntary apt in disposing of a portion ofthe. fund reserved for the satisfac.tiQIl of their liability, restrict still more ;the limitation, or adjust the .demands of daimants upon the fund . . . Though I am of opinion, and decide, that, for the purpOSe of ascerunpaid must be taining. the measure of liability, the demurrage treated as pending frei,5ht, yet in this case, the only party demapding damage being the same who is to pay the demurrage, the point is of little account, as, to this extent, the liabilities cancel each other. Had the limitation affected several creditors, the amouI,lt of the demurrage ·would make part of a fund for pro raW. distributwn. Then, deciding that the owners of the ship are entitled toaJimitation Df liability as to the losses occasioned by the tortious acts of the master, and that the libelants, being the only creditors shown, are for those losses to recover. the whole amount of the value of the 'rossel and
474
FEDERAl, REPORTER,
thepehdilig' !freight, and also that· the 'owners of the brig Giles I..oring for all damage caused by their own breach of contract, and that liable for the demurrage to the arilount of 6781.50. thift}orrtp11tatibtHs as follows: '.;, . 'i "', '
DA)lAGES CAUSED BY';PREAOB OF
'18 tons palm kernels, wllolly lost, For:warding 226t9ns cc 110" at same rate, Expense bagging and shipping 226 tons, 1.. " Bblppiug and storing 110" · Lesa charterfr'eight saved. '!
$8.553 87 2,S28 18 1,13318 710 17 140 94
$7,86634 3;398 00 84,468 84 $ 335 09 781 50
'LIMITED LIABILITY ON LOSS BY TORT OF MASTER.
Value Pending freight. Less due Jrom charterers,
$1,066 59 781 50
33509
$4,803 43 As to costIs, those on libel and cross-libel will be set off, and decree for the excess 'in· favor of the party whose costs are greatest. Theoilly matter remaining for determination is whether the respondents are: liable in solido, or only in proportion to their respective ownership in 'the vessel. The act of June 26, 1884, (chapter 121, § 18, 23 St. p. 57,) fixes the rule "that the individual liability of a Ship-owner shall be li.niited to the proportion 'qf any or all debts and liabilities that his indi'fitlual share olthe vessel bears t6 the whole;" and the question is this limitation,-like that which is measured by the value o'f thevesllel and pending freight, is to be confined to the liability of owners'Clo:il 'account of the vessel;" that is, "the liability imposed on 1hemby'law"in; consequence of their ownership of the vessel," and inthe ownars· express intervention. II Though the relation 'of pint atheria that'of'Co-tenants, yet as to third parties in lavt but one oWner. It has been, considered that in the employment of the common property they are quMi partners; beCl;luse of,thw'joint interest in the vessel,. they have been held in 8olido on liabilities' toi strangere, whether arising'from contract or tort.. This statutEiwasevidlllitly desig:ned to modify'in some way-the liability previ:ously iinposedon them by law, and to relieve ship-owners of some por!tion of that l1ability, The intelition':to i accompYish this, in part, by breakingup'thesolidarity of regpollBlbility, is' plain: Relief in this way ill not in terms made to depend on' the condition that the owners are in positiontdtake advantage of the other portion of the statute, and be discharged of all 'liability beyond the value of their shares of the vessel. The burden of a purt owner. Who ()an free himself from debt or obligation by the· surrender of his interest in' the vessel, did not more urgently
· I .'
nE
WELLINGTON.
475
appeal to be lightened than that of him !who must respond to the full extent of the liability, however small the value of his property. The language of the statute does not require any different rule of responsibility for. the different state of facts under which the obligation is incurred. The:well-known object of; this statute was the increase· of American shipby·a, reduction of the burdens of ship-owners. That end would be promot:lldby discharging part owners from a liability in 8olido for the debtsofelltch other. A construction giving such discharge is consistent with the language of,the, act, conforms with the -intention of congress, and regards strictly the deft1ct to be corrected. No principle of interpretntionrequires a different construction to the first clause of this section 18, and no other construction gives to it an effect so salutary and 80 helpful: to: owners, whose interests it aimed to serve. The aggregate lia, bility of the owners in this case, after deducting the amount above.all lowed fOI;demurrage, and including interest from date of filing the libeto ,this July 24, 1891, when the final decree is entered, is $6,139.65. The decree is ordered to be against each part owner for the proportion of this ,amount that his individual share of the vessel bears to the whole. The costs must be differently dealt with. They cannot be treated as a liability or debt of the owners, as owners, but are expenses of litigation for which the owners contesting are held in 8olido. Let it be so de,. creed. IN THE CROSS-LmEL.
A decree in favor of libelants for demurrage in the sum of $731.50, and costs.
THE
BLACKBURN ".
TIlE
WELLINGTOlf.
(Di8trict Court, N. D. CaZ(fornf4. November 80, 1ll9t.; IhLTAGB-CoMPENSATION-CONTRAOT FOR TOWAGB.
The steamer W., bound to Ban Francisco with a cargo of 9,850 tons of coat, lost. ' her propeller blades, became helpless, and drifted neal' the mouth of the Columbia river. While in communication with a vessel which oll'ered to tow her to an anchorage, from which tugs were easily accessible, and while in no immediate danger, she hailed the ateamer M., which WBB bound for Ban Francisco, and asked towage to that port. The M. was only about half her size, was not fitted for towing, and was also laden with coal. Her master, however, offered to leave the compensation to the decision of the W.'s owners, after arrival in Ban l"rancisco, which otfer was rejected, and after much haggling 815,000 was agreed NeIther vessel pOSBessed a suitable toW-line, and five small lines were used. This, in case of bad weather, would have been a source of danger, but the weather proved good, and the vellsels arrived In about five day",· Ilela that, while the compen8ation was excessive, yet, in view of the fact that there was no compulsion, it. was not so exorbitant lUI to justify the court in setting the contract aaide.
In AdJJliralty. Libel by D. O. Blackburn against the steam-ship Wellington, her freight.and cargo,upon a contract for towage. Decree for libelant.