584
FEDERAL REPORTER, vol.
48.
of these several claims, including half of the Maryland claim, they and it are to be paid in the percentage which the half fund iordistribution bears to the aggregate amount of them; I believe, about 74 per cent. I will sign a decree allowing the amounts indicated.
THE To:MORM. CSAMBERLAIN
v.
THE TORGORM.
(Dl.strict Court, D. South OaroZina. September 25, 1891.)
1.
SIlIPPING-llILL OF LADING-NoTICE.
'mit
Certain cotton wae delivered to a railroad company under a through bill of ladto Germany, the bill stating that it was to be delivered at Charleston, "to the ship 'f.,{)r to same other steam-ship company or line, or vessels chartered thereby." He(d, that this, bill did not constitute, notice to the owner or the ra,ilroad that the ';1'. was under a charter.party, and, in the absence of actualnotice,'the railroad COmpany was not bonnd to accept from'her a bill of lading with the additional quali:llcation, "Other oonditions as per charter"party. II ' ThA cotton having been placed on board the T. immediately on its arrival, ,,"coord.ingto the usage of the port, the railrolldcompany, by virtue of its right to possession 88 bailee, could maintain a libel against the vessel to recover the goods upon the master's refusal to sign the bill of lading except with the additional qualification. '
2.
SAME-POSSl!:SBIONQF OA.RRIER-RIGHT TO SUE.
In Admiralty. Libel by Daniel H. Chamberlain, as receiver of the Sc:>Uth Carolina Railway Company, against the British steam-ship gotpl, to recover possession of 52' bales of cotton. Decree for libelant. I. N. Nathan18, Mitchell &: Smith,and,Brawley Barnwell, for libelant. L P. K. Bryan, for claimant. SIM:ONTON, J. In April last, B. B. Ford & Co. shipped from Atlanta to Bremen, in bales of cotton, marked "B.A.S. A." The was delivered to the Georgia Railroad Company, and was carried' a through bill orIading. The words of this bill bearing upon the issues of this case are: "To be transported by the Georgia Railroad Company to its station at Augusta, Ga., and there to be delivered to the next. connecting rail or water carrier, being lightered, ferried, 01' carted at owner's own risk, if necessary; and thence to be transported by sll'ch connecting carrier or carriers via the port of Charleston, South Carolina, to the port of - - - , and there to be delivered, being lightered. ferried. or carted at owner's risk, to the ship Torgorm. or some other steam-ship company or line, or to vessels chartered thereby; to be transported by such steam-ship company. or by steamer or steamers of such company or line or charterer to the port of Bremen, Germany. thera to be delivered unto order, or to his or her assigns." The cotton reached Augusta, and came into the possession, under the terms of the bill of lading, of the South Carolina Railway Company, of which libelant is receiver. It was brought to Charleston, and was deliv-
585
ered by the libelant to the Torgorm via the East Shore Terminal Company, whose track connects the depot of libelant with the dock at which the Torgorm was lying. As soon as the cotton reached the side of the Torgorm it was put on board, and in a very short time thereafter she hauled out into the stream. The mate's receipts given for the cotton on delivery stated that it was received "subject to the conditions of the charter-party." When the clerk of the East Shore Terminal Company handed these receipts to the agent of the South Carolina Railway Company, he took them to the office of the ship's broker, in order to have them ex;. changed for master's receipts or bills of lading. He prepared himself with bills made out in the usual form,-clean bills, excepting that across their face were words used in the through bill, "Railroad copy not negotiable.'" rhe master refused to sign auy receipt or bill of lading unless these words were first inserted:' "Other conditions as per charter-party." The .libelant positively refused to consent to this, and the master persisted in requiring it. The libelant thereupon demanded the redelivery of the cotton. This refused, this libel was filed. The shippers of the cotton, as well as theJibelant and his agents, were ignorant ofthe existence of any charter-party between the shippers and anyone else and the Torgorm. Nor did they have any other reason to believe that she was ndt a general ship, save such as the through bill of lading disclosed. The libel seeks the redelivery of these 52 bales. The answer setsnp these positions: (].'hat the Torgorm took in her including these 52 bales, under a charter-party with the Charleston Exporting & Ship;. ping Company,.of which William Fatman is manager; that the shippers of this ,cotton were aware of this,charter-party at and belore the date Of the delivery of the cotton to the Torgorrri j that libelant is neither the ownerDDrthe shipper of the {lotton. The shipper of the cotton,denied all actual knowlrdge of any charter.. party, or any knowledge except such as the bill of lading disclosed. On receiving the bill he negotiated a draft on the cotton, and, indorsed and attached the bill to it. We have to deal with the rights of the libelant. His rights are measured by his duties. His duties are fixed and defined by the through bill of lading. His obligations are to the holder of this bill, made to order, and negotiated. Any variation of this contract would be at his peril. Under the bill of lading he undertookt<) carry the cotton from Augusta, and to df'liver it to the Torgorm, another carrier; to deliver it precisely as he rec.' ived it,-that is to say, under · the terms of the bill of lading, and none other. The master of the Torgorm proposed to insert the words, "Other conditions as per charterparty." If the through bill of lading-the contract under which libelant delivered arid the Torgorm received this contained these words or their equivalent, the demand of the master was unnecessary. If it did not, then the master had no right to demand, the libel,;; ant had no right to make, any change in the terms of the contract. The learned counsel for the respondent, whose arguments command and receive the careful consideration of the court, insists that the bill of lading gives notice of a charter-party. The language has been quoted. The
586
FEDERAL REPORTER,
vol. 48.
t
colton is to be. delivered primarily to.theTorgorm, but; Wnotdelivered to the Torgorm.' thentosoine other steam.;ship or .company" or (another alternative) to vessels, chartered thereby, to be transported by the mode selected,-thatis, either by the Torgorm, or by steamers of a line se-lected in lieu of her; or if neither of these be done, then by the charter of other vessels. It is clear that a charter is not contemplated except upon the contingency that the delivery is not to the Torgorm. Now, the fact being established that the libelant himself and his agents had no knowledge of the existence of a charter-party, and the through of lading did not put him On the inquiry, iihe had inserted the words demanded by the master he would have addeuanew condition to the contract of <:arriage. This he had not and could not have had any right to do. He was entitled on delivery to a simple declaration of that fact. He could not have demanded more; He couldnot be compelled to take less than this. It was urged with great force that this cotton was really the propertyof William Fatman, who had made the charter-party for his compaQ-'y. It was more than suggested that this sUit·W8S' a skillful device to protect hini froma"just claim. Assuniing that this be so, (it is due to Mr. Fatman to say that the evidence does not sustain it,) it cannot affect the right of libelant. If there be any claim on the part of the ship,8gainst the charterer, the master cannot force libelant into the controversy, or make him his instrument in enforcing his claim. With the <lOtton in his possession, he could enforce any lien he may have had. He did not need any new condition inserted in the contraetby the libelant.. Such being the right of the libelant, has he taken the proper course of securing it? He is not the shipper, nor is he the owner,-the absolute owner,-ofthe cotton. But he, is the bailee; with a.qualified ownership, and intrusted with the possession for the purpose of making de-livery. according to the bill of lading. Until so delivered, he can claim the possession of the cotton, and maintain an action for. it. If the cotton. went out of his possession by fraud or mistake, the possession would be restored to him. The libelantwoulcl not have delivered this cotton if the conditions insisted upon by the master had, been made known to him in advance. He cannot now be prevented from regaining possession, when it is sought to interpolatetheHe conditions, after a delivery made in good faith, and, according to the usage ·of the port. Peek v. Larsen; L. R. 12 Eq.378; Macl. Shipp. 352; Story, AK. § 398; Add. Torts,p. 562, § 540; The W. A. Morrell, 27 Fed. Rep. 570. The libelant, is entitled to a decree. It has been stated by counsel for respondthis suit the cotton .in question has reached ent, .however, that Bremen, and has been delivered to and accepted by the holder· of the through bill of lading.· .This being so, it will protect libelant, and will certainly (liminishthe: money claim. Let a reference be held, in which the inquiry. will be the fact, circumstances, andjierms of this deliv-