136
FEDERAL REPORTER; voL 53.
:ldo"notrsajr that· this. courfhallDot jurisdiction· in a proceeding ttpbna.'eing11!l Circumstances might possiblY:8JIlise in which no prop-ar 0ppol!wmty existed for the shipowner to himself of the a· common-law suit upon a shigle claim. But as in the present case, there is full opportunity for such It defense in the cothmon·law suit, and all the protection that is needed to the defendant, so far as the petition suggests, can be afforded in that suit, this court, I am satisfied, ought not to entertain the petition. Any such.intli'rference in a. case not clearly provided for by statute, is contrary to the express statutory proYisionwhich "saves to the suitor his common-law remedy, when the common law is competent authorized by sections 4284 and to give it." The 4285 is not. to be extended by construction to cases which are not within the letter or. the objects of those sectiolls; or where there is no nee.dof. the special remedy. The petition must show the existence, or the probability of tb.e existence, of several claimants, in order to make the special proceeding for an apportionment either appropriate or necessal"ynnder sections 4284 and 4285; or else it must show such a special ca,se as does not admit of the full statutory remedy upon a single claim in the common-law suit. As the petition in the present case does neither, I must sustain the exception, and decline to entertain the THE CAROLINE MILLER. FORWOOD et a1. v. THE CAROLINE MILLER. (District Court, S. D. New York. November 2, 1892.)
1.
SHIPPING-C4RRIAGEOF FnEIGHT-SHORTAGE-CONTRACT TO SHIP IN FUTURO -LIEN.
C. M., chartered to a line, delivered 189 bales ofcotton under a cl)ntra¢t of carriage called a "bill of lading," which recited that 200 bales had been received" on dock. " to be transported by the C. M.. "or by any other steamship 'of the line." The master had nothing to do with tbe loading of the ste$.mer or the appointment of the stevedore, and the cotton was received at tbe dock by the. agent of the charterers themselves. and he signed tbe socalled "bill of lading." The vessel delivered all the cotton sbe actually received. Oniluit brought by the transferee of the so-called "bill of lading" to recovertbe value of 11 missing bales. held that. as tbey !lever were put aboard the vessel, or came into the possession or under control of the master, the ship was not liable in rem for their value.
2. SAME.
The contract of carriage was not s bill of lading. but a contract to ship in futuro. either on the C. :M. or any other steamer of the line. and on this option no lien on the ship could arise on such contract alone; and, that fact being patent on. the face of the document. a transferee for value was chargeable with notice that the ship could br held only for such bales as were actually laden (n. board.
In Admiralty. Libel by George P.Forwood and Harold S. Forwood against the steamship Caroline Miller for nondelivery of part of cargo. Libel dismissed. Cary & WhitridgE', for libelants. Carpenter & Mosher, for claimants.
TIlE CAROLIXE l\l1I,LER.
137
BROWN, District JUllge. The ahOl'e libel was filed to recover the value of 11 bales of cotton, an undelivere(l part of 200 bales, alleged to have been shipped on board the steamship Caroline Miller at Brunswick. Ga., by Coles, Simkins & Co., on or about September 29, 1888, under a bill of lading, which was transferred upon the sale of the cotton by the shippers to the libelant. The Caroline Miller had previously been chartered by the claimant to Coles, Simkins & Co. and was run by the latter as a part of the New York & Brunswick Steamship Line from Brunswick to New York, with through connections to Liverpool. The bill of lading for the 200 bales provided for the transportation of the cotton to New York and delivery there to a connecting steamer for transportation and delivery at Liverpool. The Caroline Miller on her third and fourth voyages to New York under the charter brought 189 bales, which were subsequently delivered at Liverpool. The evidence leaves no doubt that she delivered to the connecting steamship in New York all the bales that were laden on board of her, and 1111 that were delivered to her master at Brunswick. If she is liable at all, therefore, it is only by virtue of the hill of lading, and delivery to the agent of the line. By the terms of the charter, the owners were to appoint the captain, officers, engineers, firemen and crew, and pay for their provisions and wages; also, for all engine-room stores; and to maintain the vessel in a thoroughly efficient state in hull and machinery for and durhlg the service. The charterers were to pay for coal. The bill of lading was not signed by the master, but by the agent of the New York & Brunswick Line, at Brunswick. The bill of lading, moreover, does not recite or state that the cotton had been received on board, but is as follows: "Received on dock, (at owner's risk of fire, flood or damage) in apparent good' order and condition by the New York and Brunswick Steainship Line. from Coles, Simkins & Co. to be transported by the New York and Brunswick S. S. Line's steamer called the' Caroline Miller,' now lying in the port of Brunswick, Ga" and bound for New York, to saY two hundred bales of cotton. being marked and numbered as in margin, and to be conveyed in and upon said steamship, or in and upon any other steamship of the line, and to be delivered in the like order at the aforesaid port of New York," etc.
The evidence shows, moreover, that the master had nothing to do with the loading of the steamer, or with the appointment of the stevedore; that the Miller lay alongside the dock where other steamers of the line were lying, and that various lots of cotton, without any separation distinguishing for what vessel they were designed, were from time to time brought down and placed upon the dock; and that the master had nothing to do with receiving it, or loading it upon the different steamers. 1. Upon the above facts the steamship is not liable in rem for the missing bales; because they were never put on board of the steamer,nor did they ever come into the possession of the master, or under his control. This subject has been fully discussed by Mr. Justice Blatchford in the case of The Gen. Sheridan,2 Ben. 294, by Mr. Justice Brown in The Ira Chaffee, 2 Fed. Rep. 401, and finally settled, as it seems to me, in the case of Pollard v. Vinton, 105 U. S. 7, 9-11. In the case last cited there was proof that E. D. Cobb & Co., the agents who had signed the
1.38
FEDERAL REPORTER,
vol. 53.
bill of ladingj were the authorized agents of the defendants for that purpose. iIn the present case, there was no similar proof, and. no such authority cali be:implied without proof. By the charter of the ship, the owners .(1{H,tbtless authorized the master to bind the ship for such goods as the charterers might deliver to him for transportation, whether actually put on board or upon the dock and under the master's control for that purpose., 'But here the master did not sign ,any. bill of lading, or undertake to bind the ship,and! the missing cotton never came under his control. The agent of the New York & Brunswiok Steamship Line who signed this shipping document, was not the agent of the shipowner, nor of the master. 'rhe delivery of goods to that agent was, therefore, neither a delivery to the master, nora delivery to the ship. In fact the delivery of the cotton at the dock WQrkedno change in its legal possession; because the cotton belonged to Coles, Simkins & Co., who were themselves the charterers, and the agent who signedt4e so"called "bill oflading" was their own agent. The Qotton, until itwllsladenon board, remained as completely under the shipper's control as before. 2. Again, this "bill oflading," so called" is not properly a bill oflading at all; but only an executory contract to ship in futuro. It does not state any receipt.o£ the cotton on board, but only that 200 bales were received at the to be shipped thereafter. ,Besides tbis, it was not even a contract to carry, by Caroline Miller; but a contract to carry by the Miller "or by any other vessel of the New York & Brunswick Line." It does not purport, therefQre, to bind the Caroline Miller for a single bale, and does not purport to ,be signed by the master or by any officer of the Caroline MUler. The line whose agent sjgnec;l the document, had an option to send the cotton by any vessel of the line they saw fit, so on the ship therefor could arise by the contract alone, but only by the actual delivery of the cotton to the ship or to her master, which, as respects the missitlgbales, was not made. Crenshawe v. Pearce; 37 Fed. Rep. 432,435; 'affirmed all this point. Fed, Rep. 803. The facts are patent uIlon the face of the document. A transferee for value is. therefore, chargeable with notice that the Miller could be held for only so much of the cotton as might be actually laden on board. 3. The so-called "l)ill oflading" was signed on. September 29th. The evidence indicates that the Caroline Miller was probably at sea, since three days is the shortest passage, and there is little doubt that she arrived'in New York on October 1st. The proof of the latter point, however, is not technically complete. Though that was definitely sworn to on the direct examination ,the cross-examination showed. that the witness was testifying from entries made by another clerk than himself. While this circumstance makes the evidence technically imperfect, nevertheless as these entries were in the regular course of business'of a shipping house of so high standing as Bowring& Archibald, there is little doubt as to the fact. This circumstance if proved would but add confirmation to the unreasonableness of holding the' Miller upon a document like the present. The former, considerations, however, are amply sufficient for the decision of tM cause, without i'eferenoe to the last consideration. The libel must be dismissed,with,costs.
THE HENRY R. TILTON.
139
THE HENRY R. TILTON. CHAPMAN DERRICK & WREOKING 00. v. THE HENRY R. TILTON. FIVE OTHER LIBELS v. SAME. (District Oourt, d. D. New York. November 28, 1892.) SALVAGE-CAPSIZED VESSELS-TOWAGE AND'RIGHTING-AwARDS.
A schooner in ballast. while passing Sandy Hook, was struck by a shot from the government practice works, in consequence of which she capsized. after having been abandoned by her crew. During a period of over two days, six tugs. working at dHferent times. and a wrecking company rendered service in getting her off the beach where she first grounded. .lying by her during olle night. towing her to shallow water near the entrance to New York harbor. and righting her. and finally beaching her in Gravesend bay. The court reo garded the services as one continuous operatioll. begun and continued by the tug which first reached her, with assistance from other tugs, the most, valuable service being rendered by the wrecking company. whose !lid the vessel could not have been saved. At a marshal's sale she was Bold for $2,900. Held that. as the vessel was derelict and of small value. about 75 per cent. of her value should be awarded as salvage. and divided among the tugs and thl1 wrecking company in proportion to tile services.
In AdIniralty. Libels by the Chapman Derrick & Wrecking Company and the tugs Babcock, Hoehn, Vosburg, Protector, Wolcott, and Veit against the schooner Henry R. Tilton for sah-age. Decree for libelants. ' . Mr. Murtha, for the Chapman Derrick & Wrecking Co, and T)l,e Protector. Mr. Hough, for the Babcock. Carpenter & Mosher, for th.e Veit and the Wolcott. Hyland & Zabriskie, for the Hoehn.
BROWN, District Judge. At about 2 o'clock in the afternoon of July 9, 1892, the schooner H. R. Tilton, bound from the southward up past Sandy Hook for New York, in ballast, was struck by a shot from the government practice works at Sandy Hook, and a ball went directly through her, a little below the water line, carrying away sev" eral planks and causing her to take in water so that in a few minutes she capsized, and lay upon her beam ends to starboard, a little of her port rail remaining out of water. All her sails were set, and all of them, except the topsails, went down under water. Shortly after the accident the master and crew abandoned her in a small boat, and were soon towed up to New York. The tug Babcock was the first tocom.e to her aid at about 4 or 5 o'clock P. M., and a few minutes afterwards the tug Hoehn anived. Both got out lines to pull her into deeper water, as she was then aground, about three miles to the southward of Sandy Hook lightship in 4 1-2 or 5 fathoms of water. Within an hour afterwards the tug Vosburg and the Protector appeared, and all four went to work pulling from time to time. Several of the hawsers were parted one or more times, and the schooner was got into deeper water. The schooner's anchor, to which the Vosburg's hawser had been made fast, was drawn overboard. When the pulling stopped, the anchor served to hold the schooner fast. About sunset the noehn