FEDERAhll.El'OB'l':Ell.,voI.
62.
Ol';:1lhl'ee;daYl!l,!a.fter-alTiiral New.fYork, which was soon relieved by froM! the depcivationsand; i discomfort, while 'ollll>oa.rd the the'libelant does not appqar;f,O"have sufferedl rany: definite l illness. He did not contract cholera, nor any other ailment; but in consequence of the exciteand anxiety :.wlnile,onboarif the Normannia, Stonington and Cepheus, he was' uMble, as.· hestateil,during the three weeks after his arrival home to do m6rethan a week's work. This loss, with the loss of·two weeks in quarantine; make up the loss of a month's time, ' which, ,at the rate of 'his usual average yearly ea.rnings would . amounttoatleast $800. '" As the vessel ,was fl'0011 an infected port, however, she would have been detained a week lin 'any event, :though she had' had no cholera, and thong-hno steerage' passengers had been on· board. The first week's: detentiobmust,therefore, be deducted as independent of the misrepresehtations.The distressihg incidents"nioreover,so graph. icaUydescl'ibed by the Witnesses, arose after the removal of the pn.ssengers from 'the Normannin on September 10th in the expectation of improving their .condiiflioD, 'cannot be charged against the Nornrannia; (1)lbecause the remo-vil of· the passengers was not theNorniannia'sact,e:nd(2) because the incidents which followed were. not produced bytlie 'passengers, nor were they the naturalioosults of the removal, nOI's'tlch as might have been expected to flow from but they arOse from wholly independent and fortuitous causes, not'to be antiCipated. I must, therefore, excludetMsepainful incidents,and the mental suffering that attended them, as 'direct subjects, of compensation, and also their effects in contributing to, the libelant's subsequent disability for work. How much of'thesubsequenttwo weeks! disability should be ascribed to causes occurring beforeuthe removal from the Normannia, and how much from what occurred; afterwards, is mostly a matter of surmise; the testimony of the libelant seems to lay chief stress upon the latter cause. Excluding, therefore, such elements of damage as are not properly attributable to the presence of steerage passengers,I think $500 will be a propell'coIllpensati(jn for the libelant's loss of time, and for his suffering; IilOfar as legally, recognizable. FroUl this sum is to be furtherdedncted the price of a return ticket, say $100, which would ha"e been' lost if the libelant had not returned upon the Normannia; since he evidently would have had no legal claim upon the company for its retUrn. remains $400,' for which a decree may be entered in favor of the libelant, with costs.
at
THE MEMNON. AFRICAN STEAMSHIP CO. v. CUNEY. (Oircuit Court of Appeals, Fifth CirCUit. June 12, 1894.) " No: 233. 1. SHIPPING-STEVEPOR]ll'S
A stevedore loadea 'and ,Stowed a. cargo of cottali, under a' .contract. for 50 cents a billIe. On tfieiea,rgo taking fire,he rendered services in break·'
FOR BREAKING OUT CARGO ON FIRE.
483 the cotton either on fire or saturated with water. .Held that-In the of anagreeinetit as' 'to the amount of the' ooihpenS1ttlon therefor, he' was entitled to more than the ordinary wages, and :iln award of 75 cents a bale, ,justified by evtdence. as to· the cJistQtil of port, should be sus-
tng out a large
pan· of
thecarg9, the hold being tilled. with smoke,. and
tained.
.
the
a
I'AYMEl\'T-ApPLICATIO.N By DEBTOR.
An agent of maklngpayments at Intervals to a stevedore for work on both progressing at the same time, kept their accounts sepa.rate, stating in the receipts taken and In the checks given the vessel on whose account payment W/lS made. Held, that one of the vessels was not liable to the stevedore In a suit in rem for more tPanthe amount due trom her on'such appropriation of payments by the agent.
. Appeal from a Decree in Admiralty of the District Court of the United States for the Eastern District of Texas. . . was a libel by N. W. Cuney against the steamship Memnon (the African Steamship Company, claitnant), for stevedore's services in loading and stowing, and in breaking out and restowing cargOo. The district court rendered a decree' for libelant. Claimantap·pealed. W. B, :penson, for appellant. , R. S.Wheeler, for appellee. Before PARDEE and McCORMICK, Circuit Judges, and LOQKE, District··Judge. . LOCKE, District Judge. N.W. Cuney, the libelant, a stevedore of Galveston, had loaded and stowed the cargo of the steamship Memnon, consisting of bales of cotton, under a contract of 50 cents a bale for the cotton stowed in the harbor of Galveston, and 5 cents a bale extra for that' stowed outside. Upon her attempting to put to sea, it was found that her draught of water was so great that it was feared that it would be necessary to break out and unload a portion of the cargo, so as to float her over the bar. No arrangement, contract,. or agreement had been made for this, bUt, after waiting four days, the libelant was requested by the ship's agent to have his men ready the next morning to break out what cargo was necessary. The ship was then lying outside at the bar, and, early on the morning of October 10th, was discovered to have fire in the cargo, and Was brought to tlle dock. The city fire d.epartment was soon on hand, and commenced playing water into holds and onto the burning cotton, and the gang of hands of the libelant were at once put to work breaking it out. The libelant himself was not there at that time; but Scott, his foreman, was in charge of the gang. They worked about four days breaking out 1,456 bales, when it was reloaded, and the vessel prepared for sea. Upon the libelant's presenting his bills for loading, out, and :restowing the cargo, objection was made to the item of 75 cents a bale charged for the breaking out, as well as the form of the bill, it being allagainstthe vessel, instead of a portion of it, that caused by thenre, being against the vessel in general average, as the, agent desired it, and he declined.to pay it, when the libelant
484
FEDERAL BEPOltTER,
vol. 62.
Upona 1J.earing, judgupon the . libel for fuJi amount, and an appeal ,to' this court. The mmmant alleged in theainswer that a contract was made with Scott by Spencer in behalf of the ship for 40 cents an hour for the Inen at the time they commenced d,ischarging cargo. not such a .contractwas made is one of the important the 'case, as the libelallt claims in his libel upon a contra<lt of ,75 cents a bale, as weUasupon a quantum meruit and custom of 'the p61't, but presentsIlo evidence whatever to support the allegations of a contract made. . 1n regard to the contract for 40 we .are from the ,evidence that there was sucn agreement or; contract to perform the service for that :.. agent's accounts SllOW that he did not so consider it,. as, in ,addition to the 40 cents per hour allowed for the men, he foreman with $10 a day, and stevedore with. a broken out. It is not danned. tliat'there was any contract for such allowance, and, whether reasonable and just or not, it was based upon no agreement, and shows conclusively to our minds that it was not: considered by the agent that there was one covering the entire service. The men were not empl9yedthemselves; >they were already in the employ of the libelant; and it does not appear that the foreman, Scott, had authority to make any contract Or agreement for them or for the libelant. Scott says that there Wa$ no contra.ct made. The libelant says that Mr. Spencer asked }:dm that afternoon what he was going to charge. Unquestionably, there was some conversation regard· .to be charged, and :Mr. Spencer proba,llly considered ing the. that a had been made atlongshoremen's wages, when Scott only wlis'intending to tell him what such wages were,-what the stevedore was paYing. We cannot find, therefore, that the ideas and intentions of the parties at any time agreed l1pon any amount, .and the questions of the usual custom and quantum meruit demand examination. The work was not ordinary longshoremen's work.. The cargo of the ship was on fire, the hold filled with smoke, and the cotton either on fire or saturated with water. The circumstances rendered the service entitled to a higher rate of compensation than the common every-daywa.ges, and we are satisfied that the evi· dence as to the custom of the port and the usual amounts paid on sUch occasions justifies the amou.nt claimed by the libelant, as being a reasonable compensation, and, upon this branch of the case, con· sider that the decree below should be sustained. But there is another question. At the time the libelant was loading this steamship, the MeJ:P.non, he was also loading another steamship, the Sirona, under. a contract and agreement with the same agent. The work was progressing upon the two vessels at t'hesame time, and payments on account of the two vessels made at intervals. Theage'Ilt, in making these payments, kept the accounts of the two vessels separate, stating in the receipts taken the vessel on whos'e account the payment was made, and on the margin of the checks given in payment, in some instances at
THE MEMNON.
485
least, the different amounts to be credited to each vessel. Such receipts show that, according to the accounts of the agent, there had been paid upon account of the Memnon, at the time of the suit, $1,700. The libelant, on the other hand, had paid no attention to the appropriation of the payments by the ship's agent to the different vessels, but had credited the entire amount received, except $200, to the Sirona, the first vessel leaving, overpaying her account $93.50, making, with the $200 excepted from the Sirona's account, $293.50 only which he credited to the account of the Memnon. The res,ult of this difference in keeping accounts has been to cause the libelant to bring suit against the Memnon for the entire amount he claimed to be due him from both vessels. There is no question of the right of the debtor to appropriate his payments to the several accounts of his debts as he sees fit, and more especially should this be recognized in case of an agent acting for several parties, and who is handling different funds. Had no appropriation been made by the party whose duty it was to pay, the one receiving would have had full power to make such application as would be to his interest; but that such appropriation was made in this case is plain from the forms of the receipts taken and the checks which had passed through the hands of the libelant, and bear his indorsement. This is an action in rem, and, no matter what the equities may be between the libelant and the agent of the steamships, this vessel cannot be held for anything not shown to be due by her. The amounts paid by her agent on her account must be presumed to have been paid from the funds of her owners, and ample notice was given the libelant at the time of his receiving them. Accepting as correct the respondent's statement of the number of bales handled and the manner and place of their loading, which very nearly corresponds with libelant's accounts, but allowing 75 cents a bale for breaking out at the time of the fire, as claimed in the libel, and deducting the $1,700 shown to have been paid on account of the vessel, we find due the libelant, at the commencement of this suit, $4:,590.10. Of this amount, claimant admitted that $4:,122.10 was due, and offered to pay this amount, upon condition that the suit be dismissed. While he may have been justified in refusing to pay the full amount claimed in the libel, and submitting such question to judicial determination, he is entitled to no greater advantages regarding interest or costs by making such a tender on account of exacting such condition than if it had not been made; and, although the amount admitted to be due was deposited in the registry of the court, it was of no advantage to the libelant, and should not affect his rights. The question of costs, and very largely of interest, is within the discretion of the court in admiralty practice. In :this case, costs having been decreed for the libelant in the court below, such costs will be taxed in his behalf; but, the claimant being fully justified in his appeal to this court, on account of judgment pronounced against the M:emnon, a portion of which amount properly belonged to the Sirona, the costs of this court will be taxed against the libelant. We are therefore of the opinion that this cause should be reI
4813 :,\u!itructions';t(), ,st:lt. decree., in the libelant $4,590",10, with!jnter;est. frolll.the 27th day ber, ,of the rate of 6 per cent. per anJ1..uWtrH\J:!.d lip..! that: incurJred; .. that the of .lhe,couJ.1; in this cause, of be applieQdinpart payment libelallt ,ha.ve judgI,U forl3,ny balance then ut ,remainiJ1.gu,y:pmUd SteamshipOompany, com· posed .. Co.,: and. Thomas R., Sweeney and George Sea,lYt stipulation, and judgment be without the pgh't$ .Qf N.W. Cuney, libelant herein, against W. W. ;WUson,agl?nt, or anyone else. on acco1ip;t of any that may. ,be due ,him from said aJ:!.d1)1at the' be taxed again,st the appellee herein; so ordered. .THE ,PQllT ADELAIDE. JAMISON v. PERRY. (Clrcult,Oourt of 4Pp¢alij, Second OircuIt. June 7. 1804.) No. 148. BHlPPINGC-CRARTJtRPAllTy-'-RIO:HT TO EXTRA FREIGHT EARNED.
By the a. ch1lrtel1 the charterer was entitled to the whole cargo capacity ()t tbe :and the sen"lces of her officers and crew, for the the charterer's permission, used the vessel<m.partot 'ilievoyageforcarrying cargo for third persons. .Held., that the· chill.rterermightrecover the freight thereby earned, less the eai'J;l.1,I:I.g it, by against the vesseL 1)9 Fed. 174, modified.
Appeal from the District Court of ,the United States for the Eastern. District of New York. ,'fhis was a libel by Edward Perry against the steamship Port Adelaide (DavidE. Jatnison, claimant) far freight received by said steamship while under charter to libelant, and for damages for of thech'arter party. . The district court rendered a decree for libelant. 59 Fed. 174: Claimant appealed. JlParker Kirilli, for appellant. David Thomson,· f.orappeUee.. nefore W.ALQ-OE, LACOMBE, an<iSIDPMAN, Circuit Judges. FER ctrRIAM; By the: terms of the charter party, the whole capaCity of ..and the services of her officers lU1<l crew, to tb,e· libelant 'for the specified voyage. If it"lia.dbeenfutended to'reserve to the 'shipowner any p:Ht of the .vsselfor ihe'purposed!.carryingeargo, that intention would doubtless in the contract, but instead the charter party 'wllsf6r"the wlioleof the vessel." Under such a cont.ract the master right, without the Mrtnission' of the libelant, to use the up<many part of the voyage for carrying' 'f6r third. persons:'{Javing done so, however, and earned freight thereby, the libelan.t, if he saw fit to adopt the