412
98 FEDERAL REPORTER.
of the United States as against other nathms, hecause,this extension seaward is undoubtedly less than tberr(lllgcQf our .modern shore batteries (BOO Porn. Int. Law, §§ 144, 150; Wbeat. Int. Law, 177) and any such extension by the United States, it is urged, extends pari passu the jurisdiction and boundaries of the stacte as its necessary incident. In the case of Bigelow v..Nickerson, 17 O. C. A.l, 70 Fed. 113, however, to which reference on this point is made, the question had reference totbe state jurisdiction over the waters of I...ake :Miehigan and was quite different from the present; since there the acts establishing the boundaries of the state expressly included the waters of the lake. In that case, moreover, it was assumed that upon the-ocean the state jurisdiction extends but a marine league from shore. See, also, Manchesterv. Massachusetts, 139 U. So 240, 11 Sup. ot. 559. But I doubt whether in fixing the line as above indicated, tl:e secretary of the trelU!ury intended to pass beyond the limit of a marine the usually accepted boundary. The Scotland light ship does not exceed that distance from shore, and if from that vessel a line be drawn to a poin't: one marine league south of the western end of Rockaway Beach, that line will pass through the whistling buoy; so that the secretary's line seems to agree accurately with the old rule of jurisdiction, and the accident would be found to be within the state limits. Upon the view above expressed, however, on the question of negligence, it is unnecessary to consider further the defense that the tort in question was beyond the jurisdiction of the state law; or to consider whether the establishment of an exterior boundary line for the application of the international rules of navigation as distinguished from the rules for harbors and inland waters, would operate as an assertion by the United States of its exclusive jurisdiction beyond a marine league; or whether, if that line were so intended, its extension seaward, based upon the greater range of the United States shore batteries,' would ipso facto extend the scope of the state laws over the high seas. ';The libel must be dismissed, but without
DUNBAR v. WESTON. (District Court, N. D. New York. STATES DISTRICT COURT-JURISDICTION.
April 5, 1899.)
1 ADMIRALTy-CHARTER PARTy-BREACII-AcTION IN PERSONA){-UNITEJ>.
A charter party for the transportation of lumber eIitirely by boat from the port of shipment to that of destination, is a maritime contract, and therefore the Unitejl States district court has jurisdiction of an action In personam in admiralty for Its breach. 2. SAME- DEFENSES-EvIDENCE. Where defendant, having received a lower rate from other shipowners, failed to ship lumber as agreed by a charter party with libelant, which .defendant made with the master of the ship, who was an entire stranger to him, and whom he testified he belleved was the owner of the vessel, and the entire freight, not being payable until after delivery, was security for the performance 'of the contract, his de-fense to an action for Its breach, that be was induced to make it hy fraudulent representations
DUNBAR V. WESTON.
473
that the master was the owner, and that, had he known that defendant WlL8 the owner, he would not have chartered the vessel, was not sustained by the evidence.
In Admiralty. John W. Ingram, for libelant Norman D. Fish, for defendant. COXE, District Judge. This is an action in personam to recover damages for the breach of a charter party. The libel alleges that the defendant chartered the libelant's boats Nellie and Dunbar to carry two full cargoes of lumber from N1rth Tonawanda, on the Niagara river, to the city of )l"ew York, via the Erie Canal and Hudson river, at the agreed freight rate of $2 per 1,000 feet. Such a charter is a maritime contract. within the jurisdiction of this court. The court is convinced that the agreement was made as alleged in the libel. 'fhe principal defense is that the defendant was induced to enter into the agreement by reason of false and fraudulent !'epresentations as to the ownership of the two boats in question. It is alleged that he was informed and supposed that they were owned by one Thomas Williams, who was their master, and had he known that the libelant was their owner he would not have chartered them. The proof fails to establish this defense. The circumstances surrounding the transaction were of such a character that there can be little doubt that the defendant, through his agent, knew the facts regarding the ehartered boats and that the eontract was repudiated beeause he was able to proeure a eheaper freight rate. The charaeter of the libelant was eertainly as good as that of Capt. \Yilliams with whom, the defendant contends. the agreement was made. It is said that the defendant did not know Williams but did know Dunbar unfavorably. Upon his mvn showing the defendant was entirely willing to enter into an agreement with a total stranger, whieh is hardly compatible with the theory that the owner's eharacter was such an important factor in making the contract. It is entirely clear from the testimony that these eharters are made by canal men with very little reference to the eharaeter of the owner of the boats. If the boat be staunch and strong and properly manned, and if the motive power be adequate, the eharterer seldom institutes an inquiry into the moral or finaneial standing of its owner. It is not an element affecting the agreement one way or the other, and especially is this so where the entire freight is security for the performanee of the agreement. The defendant was not called upon to pay a dollar till the lumber was delivered to the consignee in New York. The court eannot resist the conclusion that this defense would never have been thought of had not Capt. Wimett offered to take the lumber for a less sum than the libelant. The libelant is entitled to a deeree.
474
93 FEDERAL, REPORTER.
THE 1.
STYRIA (fout cases). April 5, 1899.)
(District Court, S. D. New York. SHIPPING- DISCHARGE OF CONTRABAND CARGO.·
Although provisions in a bill of lading permit the discharge of cargo at other ports than that to which it is consigned in case of war, wnich, in the opinion of the master, render it unsafe to enter or pischarge there, the master,as ,agent of all 'concerned, is bound to exercise prudence to protect tile interests of the cargo as well as the vessel, and the discharge ·oic'argo by him at allother port, as being contl."ab.and of war, is not justified unless ,the facts show that there was reasonable necessity tberefor.
2.
SAME....;F...CTS CON·SIDERED.
The Austrial1 was loaded at .an Italian port with a of sulIlhur consigned to New York, and cleared on April 24, 1898On the day before, a Spanish .proclamation was issued, declaring the existence of astate of war between Spain, and the United States, and in which sulphur was declared contraband.'; On April 27th, the master, wbo ,bad not sailed, commenced the diScharge of the. cargo, which was completed May 7th. Almost, immediately: after the declaration of war the public prints contained statements of negotiations for the purpose of havingslliphur exempted from contraband goods,and repeatedly stated that sllch efforts would' be successfUl,' of which statements the master was aware, and also. of the announcement of their ,success, and .be was also notified of such result by one of tM shippers before the discharge of the CRl'gq was complf!ted. At the next Italian port,. to which he went for a new' cargo on May ,lOth, he heard read an official announcement to the same' effect, thotig!\.' 'it had not been 'publicly proclaimed. Other vessels sailed at about the same time he cleared'with .Cargoes of sulphur, and were not molested. that, under, it was his duty to wait a before dificbarging tbe cargo, and, as he hlld reasonableassurarice of safety by May 10th, he was not justified in . such discharge.' ,.' ) OF CARGO,
S.
clause .of. t;he bill of la<iing; permitting 11er tp transship in case of emergency, rather ,than to subject ,herself .to a delay of unknown duration, such cIa,use 'being for the benefit of the alone, on its being ascertained that she might have proceeded within a reasonable time, the cost of the discharge, storage,: and . reloading mus,t be borne by her.
If the vessel in such casew:as justified in discharging the cargo under
4.
SA}lE-CONS'rRUC'l'ION OF HILL OF LADING-MEASURE OF DAMAGES FOR INJIJRY TO CARGO. '. " . ".
A stipulation in a bill of lading limiting the liability of the vessel to the invoice or declared valu'e of the goods does not authorize the carrier to deduct the freight from such value in case of loss or damage.
."These were libels by Jame,s L. Morgan and others and three other libelants against the Austriatl steamship Styria. Cowen, 'Ving, Putnam & Burlingham, Sullivan & Cromwell, Bower8& Sands, and Stern & Rushmore, for four different libelants. Convers & Kirlin, for defendant. BROWN, District Judge. The above four libels were filed to recover the damages claimed to have been sustained by the libelants. who were the consignees of different lots of brimstone shipped upon the Austrian steamship Styria at Port Empedocle, Girgenti, Sicily, in the latter part of April, 1898, and shortly afterwards discharged at the same port, as contraband goods, on the breaking out of the war