468
FEDERAL
THE FERRERI. (lJistrict Court, E. lJ. New York. 1.
November 19,1881.)
CONVERSION-JURISDIcTION OF THE DrsTUICT COURT.
Where goods, that had been sold to be paid for on delivery, were shipped in the name of the vendors, It shipping receipt given to them, and a bill of lading subsequently given to the vendee, who then absconded, held, that upon the refusal of the master to give the vendors a bill of lading, they could recover against the vessel the value of the goods without a demand; and that, as the vessel was in navigable waters, the tort was maritime in its character, for which an action could be brought in the district court.
W. W. Goodrich, for libellants. L. Ullo, for claimant. BENEDICT,
D. J.
The facts in this case are as follows:
In September last one Theodore Michel agreed, through a broker, to purchase of the libellants 167 barrels of resin, the resin to be shipped on the bark Ferreri in the name of the libellants, they to take the ship's receipt and deliver the same to Michel upon his paying for the goods. Accordingly, the' libellants directed Johnson & Hammond, the keepers of a yard where the libellants had resin stored, to deliver 167 barrels of resin to the bark :Ferreri on their account. Johnson & Hammond sent the goods to the bark, where they were received by tho mate, who gave in return a shipping receipt stating the receipt of the goods in question in good order from Johnson & Hammond on board the bark Ferreri for account of Tolar & Hart. After thfl goods had thus been placed on board. the bark, Michel, who Was agent for the bark in this port, procured the master to issue to him, as shipper, a bill of lading for the goods so delivered, and then absconded without paying the libellants for them, although payment had been demanded, accompanied by a tender of the shipping receipt. "After the departure of Michel, Tolar & Hart demanded question, of the master that he .issue to them a bill of lading for the goods accompanying the same with a tender of the shipping receipt. The master refused, upon the ground that he had already issued a bill of lading for the goods to Michel, whereupon Tolar & Hart libelled the vessel.
in
Upon these facts it is plain to be seen that Tolar & Hart had no intention to part with their goods until the same were paid for. This. intention they carried into effect by causing the goods to be placed on board the vessel in their name, and by taking the receipt for the goods as received by the vessel on their account. The delivery of such a receipt to Tolar & Hart bound the Ship-master to execute or withhold the bill of lading according to their direction, and left the title to the property unchanged. Brown v. Pea,body, 8 Kern. 121. When, therefore, after Michel had absconded, the master refused to issue a bill of lading for the goods to Tolar & Hart, assign-
'IHE FERRERI.
469
ing no other reason except that he had already given a bill of lading to Michel, he was guilty of converting the property. A formal demand for the return of the property would have been a vain act after the master had refused to give a bill of lading to the libellants, placing his refusal of the libellants' demand for a bill of lading upon the already given a bill of lading for the goods to ground that he Michel. Such a refusal.was equivalent to sq.ying: "I have determined to transport this resin to Marseilles, and there deliver it. to the holder of the bill of lading already issued to Michel. " Such a refusal rendered a subsequent demand of the goods unnecessary. Tolar & Hart', upon the master refusing under these circumstances to give them a bill of lading, could waive any right depending upon an implied contract on the part of the master to give them It bill of lading for their goods,then on board· hisvessel, and proceed for the tort. This right they can enforce in the admiralty. The' goods were on board a vessel for the purpose of shipment. The locality was navigable water. The tort, therefore, was matitime in character, and within the jurisdiction of the admiralty. For such a tort the ship herself is bound. The goods were !tctuallyon board the vessel. The: tortious act was that of the master of the vessel. In cases of affreightment the goods are bound to ,the vessel and the vessel to the goods. This vessel is, therefore, bound to these goods, and. liable to the owners thereof for their loss, destruction, or conversion by the act or the neglect of the master of the ship. I entertain no doubt, therefore, as ·to the right of the libellants to maintain an action·in rem against this vessel to recover;the value of the resin in question. The difficulty with the case, if any there be, arises out of the method of framing the libel. The averments of the libel are these: That the libellants sold the resin to Mic]{el to be delivered to the bark for thesUln of $553.96, to be paid on delivery of the goods to the vessel and the production of the usual shipping receipt therefor; that the resIn was delivered to said vessel and a Shipping receipt therefor given to the libellants shall be by the master; that by the custom of the 'P9:rf no bill of made or delivered by the master except upon the surrenper of the shipping receipt; that the master has given a bill of lading to ]rlichel without a surrender of the receipt, and refused to give a bill of lading the libellimts; that the vessel is about to proceed to a foreign land, and if she be allowed to depart witllOut giving the libellants a bill of lading and procuring the s,urrender of the bill of lading given to Michel., or giving indemnity against d,amage, the libellants will be remediless. .
470
The prayer of the lihel is as follows: .. Wherefore, the libellants pray that process in due form of law,' according to the course and practice of this honorable court in cases of admiralty and maritime jurisdiction, may issue against said vessel, her tackle, apparel, and furniture, and that all persons having any interest therein may be citelitp appear and answer all and singular the matters aforesaid; that they may be compelled to issue a bill of lading for said goods to these libellants and procure a sunender of the bill of lading given to said Michel, and may indemnify the libellants against all loss and damage by reason of the issuing of said bill of lading to said Michel; and that the said vessel may be condemned and sold, ahd the libellants paid any damages they may sustain in the premises, with interest and may have such other and further relief as to law and justice appe,rtain.
No exception has been taken tQ the libel on the ground of inconsistency in the relief prayed for, and under such a libel it is open to the libellants to take any decree warranted by the facts that may be within the scope 'of his prayer. But it is said by the claimant the libel proceeds upon the theory of a right in the libellants to have a bill of lading of the goods, and therefore the action is simply an action for specific performance. The libel, however, contains facts sufficient to sustain a decree for conversion, and the prayer is, among other things, that the vessel be condemned and sold to pay any dam,lges sustained by the libellants by reason of the premises. I am unable, th'erefore, to the only right set up in the libel is the right to have a bill hold of lading. Again, it.is said, in behalf of the claimant, if the action be treated as an action for damages, the damages claimed are those arising from the failure to receive a bill of lading, and not damages for converting the resin. But, as already pointed out, the facts set forth make a case of conversion, and the general prayer is to be paid damages accruing to the libellants out of the premises. It cannot, therefore, be held that the method of framing the libel, objectionable 'as it certainly is, constitutes, in the absence of any exception, an insurmountable obstacle to treating the action as based upon a matitime tort. It is not seen, therefore, that any legal objection stands\ip the way of considering this case to be an action to recover damages for the conversion of the property in question, and as, upon the argument, the desire to have it so treated was expressed, that course will be pursued. This view of the case renders it unnecessary to determine whether a proceeding in rem against the ship can be resorted to to compel the
THE FERRERI.
471
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472
FEDERAL REPORTER.
contract was that a bill of lading should be delivered to the owner of the goods. It would seem, therefore, that upon the master's refusal to give the libellants a bill of lading, they became entitled, either to enforce the delivery of the bill of lading, or to bring their action for the damages caused by such refusal; or, at their option, to waive the contract and sue for a wrongful conversion of the property. But, however this may be, I entertain no doubt of their right to maintain an action for conversion, and in such action recover the value of their goods. That value is shown by the sum they agreed to take from Michel, to-wit, and for that sum a decree will be entered herein. The record shows that aftertbe seizure of the vessel in this action the claimants procured her discharge from custody by giving a. stipulation to perform any decree that might be entered herein, and at the same time depositing in court, subject to the order of the court, a bill of lading, duly executed, such as had been demanded by the libellants and refused by the master. This bill of lading must, of course, be returned to the claimants, and an order to that effect will form part of the decree.
MITCHELL
v.
LANGDON
and others.
(Di8trict Court, N. D.lllinol.8. November 26, 1881.) 1. COAL TRADE-USAGES OF THE PORT OF CllICAGO.
The consignee of a. cargo of coal is Ejntitled by the usage of the port of Chica.go, which this court will recognize, to a fuJI day of 24 hours. after the vessel reports, in which to furnish her with a dock and to begin unloading.
In Admiralty. W. H. Oondon, for libellant. O. E. Kremer, for respondents. BLODGETT, D. J., (orally.) This is a libel for demurrage in unreasonably delaying the unloading of the schooner· Sam Cook in this port. The schooner Sam Cook, with a cargo of 564 tons of coal, consigned to respondents, Langdon, Richardson & Co., arrived in this port Saturday, October 23, 1880, and reported at consignees' dock at 9 o'clock in the morning. Consignees did not commence unloading until the morning of the 25th, and did not conclude unloading until 5 o'clock in the afternoon of the 28th. The proof shows that they could have unloaded the schooner, with the appliances in use on