936
FEDERAL REPORTER ,vol.
53.
complying with his: request they would have remitted all Jegal pro· ceedingsfor. the enforcement of their· claims to another jurisdiction, li!\.uch less convenient to all concerned, and outside of the jurisdiction m .which the salvage services had been rendered, and in which the Itverage adjustment must be made. The moment the representative of the insurers appeared at the, Erie basin, there was no further hesi· tationby'the tugs as to their duty in the surrender of the property. There'iS no evidence that the owners or the insurers will sustain any loss from taking the barge to the Erie basin instead of to the own· ers' dock at Hoboken. The bills making up the $781 referred to, are bills against the agents of the insurers, none of which are the owners liable to pay. If the owners had equal facilities for handling and rabaling cotton at Hoboken, it is not proved that these facilities were sUperior to those at the Erie basin, or that the owners would have done the work at any less cost to the insurers. It is not alleged that the expenses at the Erie basin were excessive; or that the insurers were dissatisfied with that destination. The mere loss of the job of handling the burnt cargo is not an element of legal damage. Taking all the circUDistances into account, $2,000 will, I think, bea suitable award for the whole salvage service, which sum I divide among ,the tugs engaged, as follows: To the Ellen; $400; to the Johnson Brothers, $500; to the Golden Rod,$4QO; to the Daylight, $300; to the Howard, $225; and to the McCarty, $175; one third to go to the tug owners, .and the remainder to the captain. and crew in proportion to their wages; the captain, however, of each tug to take a double share. A decree may be entered accordingly, with costs
THE GUIDING STAR. 'BENNITT v. THE GUIDING STAR.
(District Court, S. D. Ohio, W. D. No. 1,697.
January 27,1893.)
1, CARRIERS OF GOODs-LIABILITY FOR Loss-DEFENSEs-AnVANCES BY INSURER
Certain fully insured cotton having been destroyed, as claimed, through the negligence of a carrier, the insurer advanced the value thereof to the owner as a loan without interest, with the understanding that the latter should sue the carrier, and, If successful, repay the loan, and, If unsuccessful, retain the money as of the insurance. Held, that this arrangement was no bar to a libel by the owner against the camel'.
TO SHIPPER.
a
SAME-BILL OF LADING.
The owners of certain Mississippi steamboats formed an association, and appointed a common' agent, with authority to sign bills of lading, under an arrangement by which the bills were frequently signed on delivery of the goods at the landing, and the goods were to be taken by the first boat of the association which passed. The name of the particular boat was usually entered in the bill when the goods were received on board. Held that, where goods were destroyed at the landing after the bills of lading were signed,1;b,e fact that no particular boat was mentioned therein
THE GUIDING STAR.
937
would not prevent the maintenance of a libel against the next boat which passed the landing, and upon which the goods would have been shipped. 3. SAME-AuTHORITY OF AGENT.
The common agent of the boats, being a general freight agent, had power to authorize others to sign bills of lading in his name, and bills so signed were binding upon the principal.
4.
SAME-DELIVERY OF GOODS.
5.
SHIPPING-BILL OF LADING-ESTOPPEL-WAIVER.
&. SAME-LIEN-Loss AT LANDING.
7.
SAME-NEGLIGENCE-FIRE.
Where cotton alleged to be in charge of a carrier's agents Is destroyed by fire while lying uncovered and unprotected at a .lonely country landing awaiting shipment by a steamboat, there being no evidence as to how the fire originated, tbe fact that no appliances for extinguishing tire were at hand, and that no watch was maintained, will not justify the inference of negligence, since, under such circumstances, no danger from tire could reasonably be apprehended.
In Admiralty. Libel by Henry T. Bennitt against the steamer Guiding Star to enforce a claim for cotton alleged to have been destroyed while in possession of the steamer's agents. Libel dismissed. Statement by SAGE, District Judge: 'fhe libel in this case is to.. enforce the libelant's claim against the steamer Guiding Star for $17,351.94, the alleged value of 238 bales of raw cotton, received by said steamer in good order and condition from W. P. McBath & Co., doing business in the state of Mississippi. who had bought the salle by order and for the account of the libelant. It is averred that 100 bales of said cotton were delivered to said steamer on the 15th day of Jannary, 1890, and 138 bales on the 22d of January, 1890, all to be transported without delay, in like order, to the port of Cincinnati, Ohio, unavoidable dangers of the river, collision, explosion, and fire excepted; and that said steamer then and there issued and delivered to said McBath & Co., who thereafter indorsed their name in blank thereon, two blUs of lading for said cotton, signed by the duly-authorized agent of said steamer and its owner, associated with others in the business of transportation tmder the name of the Southern Transportation Company, and that said bills of lading so indorsed were transmitted to the libelant, who is the owner and holder thereof. The libel further sets forth that by a statute of the state of Mississippi entitled "An act to define the liability of persons and corporations issuing bills
938
. FEDERAL REPowrER,
vol. 53.
91: lading and warehouse receipts," dated March 16, 1886, it is enacted as follows: , "Section 1. That every bill of lading or instrument in the nature or stead thereof,. acknowledging the receipt of cotton or other things, shall be conclusive evidence in the hands of every bona fide holder, whether by assignment, pledge, or otherwise, as against the person or corporation issuing the same, that the cotton or other things have been actually received for transportation. . "Sec. 2. That the reCeipt of, a warehouseman, .or instrument in the nature Or stead thereof, shall be conclusive evidence in the hands of every bona tide holder, by assignment, pledge, or otherwise, as against the person or corporatiOn issuing the same, that the cotton or other things mentioned in the receiut have been actually received for storage." The libel further avers that the force and effect of sald act, as defined and construed by the courts of Mississil'Pi, is that It is not a mere rule of evidence, but that it determines the character and legal effect of the contract evidenced by the bill of lading, making itconclu!!1ve evidence in the pandsof every bona fide holder, whether by assignment, pledge, or otherwise, as against the person or corporation issuing it, that the cotton or other freight described in the bill of lading has been actually received for transportation, that the two bills of lading refelTed to signed, issued, and delivered by the duly-authorized agent of said steamer and its owner, associated with others in the business of transportation ttriderthe name of the Southern Transportation Company, to said firm of McBath & Co.,.in the state of :Mississippi, and with reference to the laws of said state,and that the libelant was and is the bona fide holder of said bUls. It is further averred that the said steamer negligently and carelessly left said cotton at J;leopie's landing near Riverside, Miss., uncovered and unprotected, and Without guard or watch, and that no provision or security against tire WllS provided, nor any means to extinguish fire, whereby, and in consequence whereot; while said cotton was so lying on said wharf in the custody ot said steamer or its agents, and after the signing, issuing, and delivery of said bllls of lading, it was totally destroyed by fire, and wholly lost to the libelant, to his damage in the sum aforesaid. The answer denies the receipt of the cotton, or that said steamer ever agreed to carry it, and avers that a short time prior to January 25, 1890, it was taken to People's landing, a little below Rosedale, on the Mississippi river, by said MoBath & Co., and there delivered to the keeper of said landing. or some other party as agent of said McBath & Co., to hold for them for shipment "on some steamboat which should take it at said landing;" and while so lying upon said wharf, and in the custody of said owners or agents, it was wholly destroyed by fire. The answer further sets forth that, if said bills of lading be held to be the bllls of lading of said steamer, the provisions thereof. are to the effect that, in the event of the destruction by fire of the property therein described, the carl'ier should not be responsible therefor.
Roelker & Jelke and Kittredge & Wilby, for libelant. Ramsey, Maxwell & .Ramsey and Stephens, Lincoln & Smith, for respondent. SAGE, District Judge, (after stating the case.) The facts in this case are in the main undisputed. The Southern Transportation Company .was a corporation nor a partnership. Each of the boats include.d in it did business solely on its own account. There WM no community of interest, no sharing of profits or losses, The arrangement was that the boat first at a landing should take on its own account whatever freight was there deposited for shipment. The object in forming the association was to increase business by preventing delays and maintaining regularity in shipments. The boats
939
had regulal' dates and hours for leaving New 'Orleans and Cincinnati, but no time schedule for intermediate points, and the arrangement that the first boat should take the freight was made to prevent delays resulting from holding freight for particular boats. When the bills of lading referred to in the libel were issued, James Burke 'was southwestern freight agent for the Cincinnati Hamilton & Dayton Railroad, with headquarters at Greenville, Miss., and had been in that capacity about five years. He had in his possession blanks of a joint bill of lading; the top part of it for steamboats, and the bottom part for railroads. On the 15th of September, 1889, he was authorized in writing by the masters, respectively, of the steamers Golden Rule, Mary Houston, Guiding Star, Sherlock, and U. P. Schenck, to sign the joint bills of lading in use between the Southern Transportation Line and the Cincinnati, Hamilton & Dayton road, and to represent their boats as agent for such business. This authority continued, and was unrevoked at the time of the issuing of! the bills of lading aforesaid. The cotton referred to in the libel was: purchased by McBath & Co. upon the order of the libelant. McBath' & Co. made the purchase and took the bills of lading in their own name. They then drew at sight onthe libelant for the amount, and attached the drafts, which were to the order of the bank of Rosedale, to the bills of lading, which they indorsed in blank, and had the drafts cashed by the bank, and the bank sent them forward. The cotton, as it· was brought in, was placed in the cotton yard at Rosedale owned by Davis, cashier of the bank. The bill of lading, dated on the 15th of January, was signed by McGowan, Burke's clerk, in Burke's name, while the cotton was in Davis' cotton yard. McGowan testifies that he was sent to Rosedale by Burke, and authorized to sign his name to bills of lading for this cotton. The other bill was signed by Davis himself, in Burke's name, on the 22d of January, when the cotton therein described was· yet in Davis' yard; and Davis testifies that he signed by verbal authority given him by Burke. The signature was at the end of the joint bill, which contained first a bill for the steamer, then, with a line separating, the bill for the Cincinnati, Hamilt()ll & Dayton Railroad Company, stipulating that upon the arriYal at Cincinnati, and delivery of the property "described in the above bill of lading" in good order to them as therein consigned, they would receive and forward the property. The portion of the bill relating to the steamer carriage stipulated for the delivery of the cotton at the port of Cincinnati, Ohio, and the description was of 138 bales of cotton marked "B. A. T. H. (138) shipped to order Jewett City, Conn. Notify Henry T. Bennitt, Norwich, Conn." On the 22d of January, Davis, as cashier of the bank, issued a guaranty to Burke to deliver the cotton on the bank of the river at People's landing, which is about a mile from Rosedale. He testifies that Burke wished this as security that the cotton would be transferred from the cotton yard in Rosedale to the landing, and that it was delivered in accordance with the terms of the guaranty on the 25th of January, and placed within a foot or two of the water's edge. On the morning of the 26th it was discovered to be on fire. It had been left in the open air, uncovered, and there was no guard placed
940
FEDERAL REPORTER I
over it. The. testimony' does not diSclose the origin or the cause of the fire. The landing keeper who had charge slept that night in the warehouse, ;about 75 or 100 yards from the landing. McBath, having been notiftedof the fire, reached the landing about 2 o'clock in the afternoon of the 26th. The cotton was still burning, and all but about 75 or 100 bales, some of which was then smoking, had been consumed. These 75 or 100 bales were destroyed by the fire that afternoon and the night, of the 26th. There were no engines or other appliances at hand to extinguish fire. McBath & Co. paid for the storage of the cotton on the landing. At the time of the fire the Guiding Star was below Rosedale, coming up the river. She WaB the first boat of the line that passed up after the bills of lading were issued. She passed Rosedale Monday night, January 28th, according to the testimony of Capt. Hegler, without landing, because she was not hailed, or notified to do so. The bill of lading dated the 15th of January recites that the 100 bales therein described were shipped "on board the good steamer called· SOlL Trans.· Co., or any other boat in the employ of same line."The bill of lading dated22d of January, for 138 bales, recites that it' was shipped "on board the good steamer called any boat in the employ of same line." Capt. Hegler, of the Guiding Star, testifies that generally the boat's name was left blank in the billo! lading until it was known oortainly what boat would take the freight, and that he had often received and taken on board freight with bills of lading made in the name of other boats, and in such cases he would have the naine erased, and the name of the GuidiJig Star inserted, or, if the bill of lading was blank, would insert the name of the Guiding Star. The cotton was fully insured. An arrangement was made by the insurance company with the libelant, whereby the insurance company advanced to him the value of the cotton as a loan without interest, upon the understanding, it may fairly be inferred, that the libelant should prosecute the claim. against the libelee, and, if successful, he should pay the loan; if unsuccessful, the loan should be converted into payment of the insurance. The right of the libelant to prosecute the libel under this state of faits is challenged. 'fhe transaction with the insurance company did not divest the libelant of his title to and interest in the property, and was riot a satisfaction of his claim either against the insurance company or the libelee. If it were, in terms, a satisfaction of the claim for insurance, it would not avail the libellee. The Monticello, 17' How. 152. That objection, therefore, is not well taken. It is next objected that the Guiding Star is not mentioned in the bUls of lading. The custom, in pursuance of the arrangement under which the boats of the Southern Transportation Line were associated, when bills of lading were issued, that the first boat should take the freight, and the fact, which is stipulated in the case, that the Guiding Star was the first boat, together with the testimony of Capt. Hegler that when bills of lading for freight which he took on board had been issued in the name of another boat of the .line he erased that name, and, inserted the name of the Guiding Star, or, if the bill of lading was in blank, he filled the blank, makes it immaterial whether the name
941
of the Guiding 8tar was inserted in the bill of lading or not. The bills stipulate for conveyance by steamer, and· the name of the steamer is certainly not essential to their validity. Each bill is signed "James Burke, Agent," and, if that signature be valid,-whichwill be inquired into presently,-it is certainly competent to prove who was his principal; that is to say, for whom he issued the bills of lading, what arrangement existed between them, and what was the extent of his authority, so far as necessary to determine on whose account the bills were issued, and who incurred the liabilities arising therefrom. But it is contended that the signatures were not authorized; that they were not made by Burke himself, and that he could not delegate his authOIity as agent for the boats. This objection, too, must be overruled. He was a general agent, and it was within the scope of his authority to authorize the signing of bills of lading by persong in his employ. It was necessary that bills should be 8i;rned at the various and it was impossible for him to sign them an himself. It is true that he testifies that it was his habit to go on board the boats passing Greenville-his headquarters--on their way up the river, and sign bills of lading in person; but it appears from the evidence that that was not the only way in which bills were issued or signed, and that he gave express· authority to McGowan, who signed th.e bill of the 15th, and Davis, who1signed the bill of the 22d. The iluggestion that there was no delivery of the cotton deseciLed in the bill of lading of the 22d because it was delivered b.y Davis, as owner of the yard, to himself as agent, which was no delivery, is not well founded. He had a right to act in both capacities, and the testimony is that on the 25th of January the cotton was in fact taken from his yard, and delivered on the landing, the place stipulated in the guaranty, and the usual and proper place for the deposit of freight of that character; and that was a delivery. What force and effect the Mississippi statute relating to bUlS Of lading has in this cause, and to what extent, if at all, it applies agairst the libelee, will be considered later in this opininn. It may as well be said here, however, that its manifest purpose is to make bills of lading and warehouse receipts not merely a rule of evidence, unless it be in the negotiable. It :sense that every estoppel is a rule of evidence. It confers upon the bona fide holder by assignment or any other mode of transfer rights which are in the nature of vested property rights, and cannot be divested by suit in another state, either in a local court or a federal court. McBath & Co. purchased the cotton in their own name, and in their own right. It is true they made the purchase to fill an order given them by the libelant, but it was none the less their purchase. 'l'hey sold it to libelant, and the bank at Rosedale cashed -sight draft-'l drawn on him for the price, having the bills, which were indorsed in blank, attached; and the payment of the drafts by the libelant completed the transfer to him as of the date of the cashing of the drafts. Two questions remain to be considered: First. Whether the Mississippi statute so applies in this case as to estop the libelee from showing that the cotton did not come into the custody of the officers .or owners of the boat. Turning to the amended libel, we find the
FEDtRAL
'1ifirnl.eDt not safely and securely carry and de.JimtJthe;Ba1d ootion.aa itJwtagreedtodo, but failed so to negliAnilIleai'el(!fisly:lEiavmgaaid cotton on the steamboat landing at ,1Inco"tered and unprotected, and not watched 'byNsaiil&teamboator its,.agents, who had ·ma.de no ,provisions for had no means at hand to extinguish fire, \VhiereblY'l 'and in consequence of said negligence, while so lying Ont saidFlwharfafter the 'signing; iss'l1ing,and,delivering of said of said steamboat or its agents, the said cot1ton;w,ajlutbtally destroyed by fire, whereby,sa,id cotton was wholly l08t·tofJiJbelaIitl,e'tC. The libelant put in 'evidehce the testimony of R.lrL. llcGowanthatlthe cotton deScribed in the bill of lading 15th was: in the, yardwheIl, the bill was signed, afterwards taken to the landing; and in the second dePQSition,()fDaVis,wwoh,was taken by him, that McGowan wanted him.: 8llJ,.fimltodeliver theeottonto,the boat, and that he told like that, because the boat might not bet4ere,lfor ithIfee or four' days, but that he would guaranty Us delivery, oI1:the;'landing, "wheml of course, the landing keeper ,would be expected tE) take it," and that McGowan said that that would Irlght, ,'fatJ,a.ll they, wanted was to be certain that it would be del:ivemdwhere'the boats handle it;;....,.take it." It is stipulated and, agreed, :by,rand, between the parties· that. the Guiding Rtal' wag the ftrststea.mElrof theliIie:to pass going north after the cotton was taken to ,llbelibeiant depOSition of McBath, on cross-eXia:mJ.nation, brought out the fact that the cotton, when the ,billit'Were signed, .was in the possession and in the yard of DaviS,' manager of, theootton yard" and! cashier of the, bank of Rose'dale.·.·Theilibelantalsooffeted testimony that the cotton was on the wharf,iand,unoovered"rwhenit was burned, and relies upon the circumstances attehW!ng ,thaburning .to establish negligence. These must 'therefore be regarded as in the .cause for all purpo$l*l,land, if. they cO.hflict· with the recitals of the bills of lading, the libelalllt, by introducing them, not only waived the estoppel under ,the statutej at least to' that extent, but also opened the door for the introduotionoftestimony,'on those points by the libelee. It would ;not.be tolerable ,to apply the estoppel under the statute so as to hold 'that the l'ooeipt of the freight on board the steamer cannot be denied in consi<1Jering,whethel' the proceeding in rem against the libelee can be· mainJl:amed".and then allow the libelant to· establish by evidence that it not on board the steamer, but was burned on the landing beforehal'l1:ng ,'Come into the custody of the steamer or its officers, under c1r.diwnstances creating a liability by reason· of negligence. are signed, "James Burke, Agent," and, if the estoppelibe;fntullforooj'it does not bar the inquiry whether he was acting within the $Cope of his agency, and who was his principal, for, if he was not acting within the scope of his agency, or had no prineipal"theegtoppel is not destroj'ed,or overcome, but it applies only to him perMally. q)he qUeiiltion, .then, arises whether the proceeding in rem in adniiralty can, 00 maintained. The keeper of the landing, in whose
THE GUlDING STAR.
charge the cotton was .left, was not the agent of the steamer. He also testifies-and there is no other evidence on that point-that he paid storage by McBath & Co. for the cotton, and received it in storage, to bold until the of the s'teamer, which did notai'rive until more than 48 hours after the cotton was destroyed by fire, and then was not hailed, and passed up the river without landing. It results that the bills of lading did not create liens against the vessel, and that the libel cannot be maintained. The Freeman v. Bucking. ham, 18 How. 182; Vandewater v. Mills, 19 How 82; Scott v.' The Ira Chaffee, 2 Fed. Rep. 401; The Missouri, 30 Fed. Rep. 384; The Hermitage,4 Blatchf. 474; The General Sheridan; 2 Ben. 294; The Keokuk, 9 Wall. 517; The William Fletcher, 8 Ben. 537; The City of Baton Rouge, 19 Fed. Rep. 461. . In The Freeman v. Buckingham, Mr. Justice Curtis, delivering the opinion of the court, says: "Under the maritime laW' of the United States the vessel is bound to the cargo, and the cargo to the vessel, for the pel."formance of a contract· of affreightment. But the law creates no lien on a vessel as a security ,for the perform/WCe of a contract to "transport cargo, until some lawful contract of altretghtnlent is made, and the cargo shipped under it."
In Vandewater v. Mills, Mr. Justice Grier, announcing the. opinion of the court, says: "If the master or owner refuses to perform his contract, or if for any other reason the ship does not receive cargo, or depart on her. voyage, to contract, the charterer has no privilege or maritime lien on the ship for,such breach of contract by the owners, but must resort to his personal action for damages, as in oTher cases." .
The case of Bulkly v. Cotton Co., 24 How. 386, cited for the is authority for the proposition that the vessel is bound for the safe shipment of freight from the time of its delivery at the place of" shipment and acceptance by the master. In that case the master of the vessel, which was then lying at the port of Mobile, agreed to carry a lot of cotton from that port to Boston for the freight mentioned in the bills of lading. The vessel, when fully laden, could not pass the bar which is situated a considerable distance below the city. Having received a portion of her cargo at the city, she was towed below the bar to receive the residue. The master signed bills of lading for 'the cotton, 100 bales of which were placed upon a lighter employed by the maste:r to be conveyed to the vessel. After she had passed the bar and arrived at the side of the vessel, but before any part of the· cotton was taken out, her boiler exploded, the cotton was thrown into the water, and the lighter sank. A portion of the cotton was taken up by the crew of the vessel, and carried to Boston with the bales which had been safely placed on board, and the residue of the 100 bales was in part wet and damaged and in part lost. The court held that the vessel was bound from the time of the delivery by the shipper and acceptance by the master, and that the delivery to the lighterman was a delivery to the master, "and the transportation by the lighter to the vessel the commencement of the voyage in execution of the contract; the same, in judgment of law, JU3 if the one hundred bales had been placed on board the vessel
FEDERAL"
.vol. 53.
atlthe'eHy,ihsteadof :the lighter." RefeITing to cited, includv. Buekingham., inJ'$Upport of the contention that the' 'vessel was: exempt 'from responsibility upon the ground that the cotton ,wa.s hever I iladenonboard, the court called attention to the fact .thait ":i,n those cases the goods were not only not laden on board the I they never had been delivered to the and, rooognwiD!gthe law as laid down ,in that case"that the master not only,ihad n0 general authority to sign the bill of lading and admit the goods! on board when contrary to the fact, but that a third party taking: the .bill was chargeable with, notice of the limitation, and took it'sUbjoot to,afiY infirmity in the contract growing out of it, drew the distinctiOn; tliM.m Bulkiyv. Cotton ICo., the cargo was delivered in pursuance of the contract, and the goods were in tile custody of the master; ,subject to his lien, for freight, as effectually as if they had been upon the deck of the ship. In this case the goods were not deliv.ered;to".jhe Jl;I.ll,.Ster. The testimony" of Burke, the agent for the Southern' Transportation Line and: the steamers composing it, is exhad no to sign bills. of lading for cotton not actually dehvered' to the ,boat. ,'rhe. testm;wny also, is uncontradicted, as has already been stated,' that storage on the cotton while at itn'llclanld.ingdDJicharge.of the landing keeper was paid by McBath, and that the landing keeper was not the agent of :the libelee. It is cleariitherefore" that this case does not fall within the ruling made inBillkly'v., Gotton Co. " , , . . 41 Fed. Rep. 106, also cited for the libetee, the fI'eight was recetved by the steamboat company, and stored in its warehouse. ,But here, as we have seen, the freight did not come into· the pdsseSsion of' 'thesteamboat,but into the custody of the landing keeper, Iwho was not an agent of the steamer. The authority of 'Burke Was given in writing by the masters of the steamers forming the transporta.tion company. It is as follows: "rou are sign the joint bills of lading In use between the S6utheni TrlmsDortation Line and the C., H. & D. road, and to represent "O\it' boats asageilt for such business." .
IIiPo1l8lrd v.<Vinton, 105 U. S. 9, where a bill of lading was issued by .of, the steamer for cotton which was not shipped on the steliLll1lboat:or delivered at its wharf or to its agents for shipment, th'e COiJrt said that it would probably be conceded that the effect of the'bill of lading and its binding force on the defendant wi::ts no sfuongerthan if signed by himself as master of his own vessel, and that in such case the proposition could not be successfully 'disimted that;tb:eperson to whom such bill oflading was first delivered. could oot hold the signer for goods, not received by theeaITier.i' 'The reasons why the master,even if owner of the vessel, cannot by 'WHiNer or stipulation create a lien on the vessel for goods not' deliv.:ered, "are, probably, that he cannot affect the rights of 'Otherswbo;aremaritime lien holders; and that a maritime lien exists only by virtue of maritime law,and no lien, unaccompanied by posSession, canbj:lcreated otherwise, excepting under and in lalncewith statutory Further on, the court, say:
945
''Before the power to make and deliver a bill of lading could arise, some person must have shipped goods on the vessel. Only then could there be a shipper, and only then could there be goods shipped. In saying this, we do not mean that the goods must have been actually placed on the deck of the vessel If they came within the control and custody of the officers of the boat for the purpose of shipment, the contract of carriag-e had commenced, and the evidence of it in the form of a bill of lading would be binding; but without such a dE'livery there was no contract of carrying, and the agents of the defendant had no authority to make one."
That statement of law was made in construing the authority given by the owner of the vessel to the agents, and limited in terms to the execution and delivery to shippers of bills of lading for freight "shipped on defendant's steamboat Ben Franklin." The limitation, however,is the same as that which the law fixes upon the authority of masters of vessels, and the master could not give to the agent a greater authority than he himself had. :My conclusion is that the master of the Guiding Star could not confer upon Burke authority to sign bills of lading for cotton not delivered to the steamer nor placed in the custody of her master or officers; that the cotton in question was not so delivered or placed; and that the libelant has no case against the libelee. But, if this conclusion be wrong, we have the remaining question, to wit, whether the destruction of the cotton was the result of the negligence of the libelee. It was placed upon the landing, a mile or more distant from Rosedale, which is referred to by one of the witnesses as a very small town. Its population, according to the census of 1890, was 250. The landing was on a point with water on both sides, and the cotton was deposited within one or two feet of the edge of the water on the river side. The general rule that negligence will not be presumed without some evidence showing a state of affairs from which negligence can properly be inferred, (Lyndsay v. Railroad Co., 27 Vt. 643,) and that the burden of proof is upon the party setting up the negligence, is well established. Counsel for the libelant cite :Mitchell v. Railway Co., L. R.10 Q. B. 256, where bags of tow and flax in possession of the defendant under an agreement to hold as warehouseman at the owner's sole risk were damaged by water, and it appeared that they had been stacked in the open air, without being raised above the ground, as they should have been, and that the tarpaulins placed over them were insufficient, and let the rain through. The verdict for the plaintiff was sustained, Blackburn, J., saying: "The liability of an ordinary bailee is to take ordinary and reasonable care. But, if the defendants in this case are under that liability, there is ample evidence that they did not do that."
In Chenowith v. Dickinson, 8 B. 156, a merchant had stored barrels of salt consigned to him in a frame warehouse on an alley back of his business house. Some of them were stolen by a thief, who effected his entrance into the warehouse through a hole occasioned by a plank being off the side or rear of the building, and the court properly held the merchant liable for that negligence, which it appeared aJrorded ingress to the thief. v.53F.no.9-60
It appeared that the damage resulted from the negligence specified.
946
FEDERAL REPORTER,
In Mbreheadv.. Brown; a Jones,(N. C.) 367, a ballee for hire .of Q9ttQn placed it in an ppen lot, and left it there uncovered. When delivered to him it was in bad order by reason of want of rope, and ()tthe bags being torn and rotten. The season was rainy, and the cotton; sinking into the soft ground, was damaged. The plaintiff obtai:qed. verdict, which was .sustained on appeal.' In this .case also the negligence complained of was shown to be directly the' cause of the. daIIj.ttge. In Rallioad 00. v. Faler, 58 Miss. 911, cotton in transportation under.a..bill ot lading excepting liability for loss by fire was burned, but evidence did not disclose how the cotton ignited.. It was being tJlansp!>rted upon flat, open cars. . The court. affirmed the judgment below, (which had found negligence on the part of the caITier in the lJ,I!le of such cars for the transportation of cotton,) saying that cotton was very inflammable, easy to ignite, and hardto extinguish; and f,lia,t .Qrdinary prudence would suggest that it should be stored in cars otsttch construction as would give the largest measure of security.... This is cleal'1y within the general rule stated above that negligence will not be presutned without some. evidence showing a state of affairs from which it can properly be inferred. Then comes the ease. of ManufactUring Co. v. Steamboat ·00., 50 N. Y. 121, where freight .was delivered. by the steamboat company upon its wharf at the city of New York early on the morning of the 4th of July, .. A fire broke out on the wharf on the morning of the 5th, and . cotisriined the cotton. Loss by fire was Ii risk excepted in the bill of lading, and the question was whether the :fire resulted from the negligence of .the defendant. The steamboat company had a private watchin.an and two colored men, who.se· duty it was to be upon the wharf on the night of the fire. There was evidence tending to show that the fire originated upon the wharf, and that there were no means there to extinguish fire. 'The steamboat c'ompany did not produce as witnesses the private watchman, nor either of the two colored to, nor did it appear that there was any person upon the wharf when the :fire broke out. In the court below a verdict for the defendant was directed upon the close of the plaintiff's testimony, and judgment entered upon the verdict. The court of appeals reversed the judgment, saying that enough was shown to call .upon the defendant to explain the circumstances attending the destruction of the property, and that, in the absence of any such explanation, the jury would have been authorized to infer the want of proper precautions for its safety; also that the plaintiff's evidence of the absence of means for extinguishing fire, although not of the most satisfactory character, was sufficient to put the defelldant upon proof, and that the defendant, possessing the best means of proof upon that SUbject, offered no testimony with regard to it; also that the fact that the fire originated on the defendant's premises, in connection with the failure of the defendant to offer any explanation of its origin, or even produce any of the persons said to have been left in charge, or to show that they perforD1ed their duty, or that any effort was made to take the goods out· of the reach of the fire, were circumstances from which the jury might have drawn inferences
947,
unfavorable to thedefendaJit on the question of negligence, and that the nature of an acci.dent may afford prima facieproof of negligence, and. that negligence may be inferred from the circumstances of the case. I have no doubt of the correctness of that deci.sion, but in the case of The Buckeye, 7 Biss. 23, a propeller caught fire and was deat the wharf at Detroit. It was claimed by the libelant, who had shipped on the propeller a quantity of merchandise for Chicago under a bill of lading which excepted loss by fire, that the fire was the result of negligence on the part of officers of the boat. The court said that there was no proof how the fire originated. From the statement of the case it appears that while the propeller was embarking passengers she was found to be on fire in the hold, near the boiler. The court said that the evidence was clear that the boat was as well protected against fire as any vessel that ordinarily navigates the lakes, and that negligence could not be inferred from the fact that the boat was on fire. In each one of the cases cited for libelant the facts proven bore a direct relation to the loss complained of. No such relation appears here. The presumption that cotton laden on flat, open cars, and uncovered, took fire in transit from sparks from a locomotive, has no bearing upon a case where cotton is stored upon a bank at a landing in the country on the River Mississippi, and a mile away from a little hamlet, the only settlementin the vicinity. There was no reason to anticipate destruction of the cotton by fire, and no occasion, in the exercise of ordinary prudence, to take any precautions against fire; nor would it be reasonable to say that appliances for the extinguishment of fire should have been provided, as might be expected where freight was stored upon a wharf in the city of New York. McBath, who purchased the cotton on an order from the libelant, knew that it was placed on the landing, and not only made no objection, but paid the storage. But counsel for libelant call attention to the fact that Burke testifies that he made an investigation into the cause of the fire, and ask, "Where is the result of it?" insisting that, if the investigation had developed anything favorable to the libelee, the facts would have been disclosed. When we turn to Burke's deposition, however, we see that he had no personal knowledge of the facts, and that he derived his information from the agent of the insurance company, which, as has already been stated, it is fair °to infer stands behind the libelant, and is the promoter of this litigation,. Burke tells us that the agent of the insurance company, who had been investigating the matter, and from whom he derived his information, assured him that the cotton was burned by McBath's men, and that, if he had the evidence of one or two more witnesses, he could put them into the penitentiary. Upon this state of facts, the fair presumption is not that suggested by counsel for libelant, but, on the other hand, that the agent of the insurance company had, upon investigation, satisfied himself that the fire was the work of incendiaries, actuated by hostmty to McBath, and that the evidence was not produced for the libelunt in this cause because it would negative the averment of negligence. It is urged also that there was no watch placed over the cotton, but surely, unless the failure to adopt every preventive
948
nDERAL REPORTER,
ageneylUggested by afterthought can be reckoned negllgenee, there.
was no occasion, in the of due care, to set a watch over a lot of cotton while upon a landing at sO lonely a place. H.8.d the cotton been stol'ed in the warehouse,-which, however, did not belong to, and was not under the control of, the libelee,-the probable result would have been that that would liave been fired to accomplish the destruction of the cotton. My conclusion is that the averment of negligence is not sustained, and that the loss was within the exception of the bill of lading. The libel will be dismissed, at the costa of the libelant. THE RABBONL
THE NELLIE E.
nmmALL. Juue 27, 189L)
STEWART et al. v. RUMBALL et aI. (DIstrict Court, D. Maine. No.
ro.
Where two salling vessels are approaching each other nearly head on. or on close parallel llnes, one of them sailing closehauled on the starboard tack, and the other going free on the port tack, It Is the duty of the latter to keep out of the WilY, and if a oo1111::10n occurs she must be held In fault she clearly shows that tho other vessel was guIlty of fault causing the collision. .. SA.l!B-DAMAGBs-INTEREsT. A libelant who recovers for a oolllRion Is entitled to Interest when he has been constantly urgent to bring the case to a decision, and when the cla1m· ants have strenuously sought delay In order to procure the testimony of material Witnesses, whom they do not finIllly prodUce.
L
COLLISION-BA.ILING VBSSELS.
In Admiralty. Libel by Thomas J. Stewart and others, owners 01 the schooner Rabboni, against O. P. Rumball and others, owners 01 the barkentine Nellie E. Rumball, to recover damages for a collision. Cross libel by the latter against the former for the same collision. Decree for libelants. Eugene P. Carver, for owners of the schooner Rabboni. Edward S. Dodge, for owners of the barkentine Nellie E. Rumball. WEBB, District Judge. Cross libels for damages in a collision between the two-masted schooner Rabboni and the barkentine Xellie E. Rumball, on the morning of October 10, 1888, at a point about Dlidway between Handkerchief lightship and Shovelful lightship. This collision is attended with more than the ordinary ditli.culty arising from con11icting testimony. Practically the only important evidence comes from the two captains. At the time of the affair, each was, and for a long time before had been, on the deck· of hm vessel. Each admits that he was seasonably notified of the approach of the other. They differ not materially as to the exact place where the collision occurred, and somewhat as to the direction of the wind, and the precise course upon which the two vessels had been sail-
