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(so to speak), do the fair thing, because the contractual relation has ceased, and it often has done so, somewhat to Justice Story's discontent (The Nathaniel Hooper, 3 Sum. 542, Fed. Cas. No. 10,032).

(5) All the litigation over the Appam has been on the instance side; this court cannot disregard the severance of contractual relation by capture, not condemnation; nor has it in this case any right to award pro rata freight as in prize; nor in any other way, for there is no proof of a contract or agreement therefor.

[6] I am therefore compelled to the opinion that by British law, it is (1) doubtful whether a lien differing from that ordinarily growing out of the carriage of goods would be allowed by reason of the wording of the Appam's bills of lading; (2) if such lien was created it rested solely upon a contract which was abrogated by capture; (3) the personal liability of shippers is immaterial as is any similar liability of consignees; (4) there being no lien, there is no jurisdiction, and the libel fails.

[7] It is argued that the contract of carriage revived on repossession; no authority sustains this view, nor does the analogy of recapture assist. If a recaptor delivered the goods at destination, or permitted the shipowner so to do, subject to salvage, freight was due. But if the recaptor made delivery the shipowner did not fulfill his own contract, and no more did he do so if he tendered the cargo with a burden of salvage attached. The freight was due, no matter who delivered, if the goods were in good order; but the contract was not fulfilled. Ex parte Cheesman, 2 Eden, 181, holds no more than this; its dicta are inconsistent with later and greater authority.

The foregoing is my opinion on the matters raised in argument; subsequent reflection upon this novel case has led to the view that it does not depend upon British law, but is a matter to be settled by our jurisprudence in favor of the claimants. The Appam entered our harbor in lawful possession of her captors; by a subsequent infraction of American law, and in accord with rulings thought to be peculiarly American, the owners of hull and cargo severally regained their respective properties. It was proximately due to the law of the United States that this good fortune fell to them.

If by our law they severally got back what had once been their own, then by our law their respective rights to what they got must be admeasured, unless the obligation of a contract good where made is to be respected and enforced. These claimants, as libelants (practically), separately demanded the cargo as their own; these libelants never objected, yet such asserted and ultimately granted right of possession was wholly inconsistent with any existing or continuing relation between ship and cargo or the owners thereof. The evidence of that relation was the bill of lading, which as against the prize master was nothing; in truth and in law the Appam had become a mere receptacle in which the captor respondent kept what he had taken both from the carrier and the cargo owner; the latter got his own cargo; the former acquiesced in the proceedings; certainly he got back nothing but his ship.

[8] It is too clear to require more than statement that the efforts to recover Appam and cargo were serious matters, sure to be long contested, certain to be bitterly defended at law and by diplomatic

action, and of most doubtful issue. Fourteen months elapsed between capture and restitution, and judicial notice is taken that such time is less than might reasonably have been expected as the life of such a litigation.

[9] These facts raise the question whether a year and more ago there was any intention on the ship's part to continue the voyage and deliver the cargo. I think but one answer is possible: There was no such intent; the voyage to Liverpool was totally abandoned. If such is the fact the analogy of recapture is not nearly as close as that of marine disaster. The Appam was much more like a derelict restored to owners free of salvage through misconduct of salvors (a thing barely possible) than she was like a recaptured vessel. It clears the matter somewhat to stay on the instance side of the court.

To be sure there was no physical injury to the ship, but the disaster to the joint interests of hull and cargo was quite as great as that wrought by many a storm. If in fact the voyage was ended in the United States, or the original voyage there abandoned, and so ended or abandoned, by intent, the rights of parties are adjusted by our law and The Eliza Lines, 199 U. S. 119, 26 Sup. Ct. 8, 50 L. Ed. 115, 4 Ann. Cas. 406, applies, a case which, however, proclaims its adherence to English precedent.

[10] Let the lien agreed upon be given as wide a scope and great a force as can be contended for, and it is still true that no carrier can preserve any lien for any freight against any cargo, if even under force majeure he totally abandons the carriage of the goods intrusted to him; and this is what I think the Appam did-indeed, it was the only possible thing to do under the circumstances.

The result is the same, and the libel must be dismissed, with costs.

THE OLYMPIA.

(District Court, E. D. New York. April 28, 1917.)

1. EVIDENCE OW383(8)-EFFECT OF BOOKKEEPING ENTRIES.

• A book entry charging repairs to a boat against the charterer is not conclusive, where other evidence shows that credit was in fact given to the boat, and that the bill was sent to the charterer at the request of the owner.

[Ed. Note. For other cases, see Evidence, Cent. Dig. 88 1669, 1670.) 2. SHIPPING 54-INJURY TO CHARTERED Scows-LIABILITY.

A towing company used two dump sCOWS, orally chartered from libelant, in the execution of a contract with the owner of a dumping platform to furnish scows to remove material from a subway excavation. The manner of loading was by dumping the material from the platformy into the pockets of the scows, and the contract provided that the scows should always lie afloat, and that no stones larger than could be handled by two men should be dumped into them. There was evidence that it was customary to dump soft earth into the pockets before dumping in stones, to prevent injury to the planks. During the work libelant's sccws were in

jured a number of times by having planks broken, and one by grounding em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

while being loaded, and libelant paid for their repair. Libelant brought suit against the towing company for breach of the implied condition of the charter, by failing to return them in good order, and respondent brought in the dump owner under the fifty-ninth rule. Held, on the evi. dence, that the injury to the scows was caused by the negligence of the dump owner in loading and the unsafe condition of its berth, and that it was liable therefor.

[Ed. Note.-For other cases, see Shipping, Cent. Dig. 88 219–221.) In Admiralty. Suits by James Shewan & Sons against the dumper Olympia, with the Moran Towing & Transportation Company, impleaded, and by Harriet H. Healey, owner of the dumpers Olympia and Atlanta, against the Moran Towing & Transportation Company, with the Cranford Company, impleaded. Decree for libelant against the Olympia in the first suit, and for libelant against the Cranford Company in the second suit.

Foley & Martin, of New York City, for James Shewan & Sons. Alexander & Ash, of New York City, for the Olympia.

James J. Macklin, of New York City, for Moran Towing & Transp. Co.

Grout & McKinney, of New York City, for Cranford Co.

The fimpia was company Upon re the

CHATFIELD, District Judge. These actions have been tried together in the sense that the witnesses have been examined but once. The issues are distinct, and each action must be discussed from the standpoint of its own parties, and with careful discrimination between the occurrences upon which the two suits are based.

The first action is for repairs to the scow Olympia. It appears that the Olympia was chartered by a conversation over the telephone, in which the Moran Company asked the owner of the Olympia if he had a scow available for use. Upon receiving an affirmative answer and information as to the place where the Olympia was moored, one of the Moran tugs, upon the 3d day of September, 1916, took the scow from her mooring, with her captain on board, and proceeded to a dumping board of the Cranford Company at Ninth street in Brooklyn, where the scow was used to receive dirt from the subway excavation in Flatbush avenue, Brooklyn.

The scow Olympia has six pockets, each with sloping sides terminating in two gates opened and closed by means of two chains running to a windlass upon the deck of the scow. These chains are located at opposite ends of the pocket, and terminate in bridles, of which an arm runs to each of the two gates, which open downwardly and close up to a line running fore and aft of the vessel. The dumping board consists of a ramp and a platform, with tilting planes operated by machinery, from which the material, as the planes are tilted, is slid off and thus poured into the scows, which are placed under the dump and moved forward or back, according to the requirements, in order to direct the stream of earth into the desired pocket.

In the month of September, 1916, the Olympia required repairs upon three occasions. It appears from the record that she was surveyed on the 9th day of September, and that her injuries generally consisted of damages to two planks in the sloping side of the pocket, just aft of the air chamber or central space in the scow. Again, upon the 13th day of September, 1916, the Olympia was surveyed, and it was found that she needed repairs because of damage causing leaks at the corners of the pockets, and also at a point in the bottom where the planks adjoined the opening or gate space of one of these pockets, and it appears from the testimony that three bottom planks had to be replaced and showed injury. Of these, two were broken intentionally by the dry dock men, in order to get the boat upon the dry dock and to let the water out of the boat, without going to the great expense of pumping it out, or holding the boat until it could drain out slowly. No fault is alleged in the method of making the repair, and it is necessary to assume, therefore, that the removal of these planks and their restoration was a proper itein in repairing the damage caused by leakage.

Again, upon the 22d day of September, the Olympia was surveyed and repaired, when it was found that in the next pocket aft two planks had been broken upon the sloping outer side of that pocket, about halfway up from the gate. It also appears that while the boat was in the dry dock for repair of the leaks—that is, upon her second visit to the dry dock-certain extra repairs were found to be necessary and made at the request of the owner. These extra repairs had nothing to do with the so-called damage items covered by the survey. But it appears from the testimony that, at the request of the owner of the boat, the bill for all four items of repair was sent to the Moran Company, and the libelant seems to have made the first entry in its books in the form of a charge to the Moran Company at the time the bill was sent. Subsequently the Moran Company denied liability for these repairs, and in the meantime, apparently, the libelant had corrected its books, so as to show a charge for the repairs against the steamer or its owners, and had deducted the items from its bill against the Moran Company, leaving merely the notation that, at the request of the libelant, the bill had been sent to the Moran Company for payment.

[1] It is evident from the testimony that the libelant knew of the business relations between the owner of the Olympia and the Moran Company. But there is nothing to show that the Moran Company was a party to the arrangement in such a way that its credit, either as principal or as surety, took the place of the credit which evidently was given to the boat, and not to the boat's owner. The method of bookkeeping is not conclusive, when the presumption from the other facts is stronger than the presumption from an entry in the books, which would have saved labor if the Moran Company had paid the bill at the suggestion of the owner of the boat. The libelant, therefore, should have a decree against the boat, both for the specific items which were concerned with the use of the boat made by the charterer and for the bill for extras, with costs. The petition of the owner to bring in the Moran Company should be dismissed, but without costs, as the Moran Company would be responsible as charterer for all except the extras, if the failure of the Moran Company to bring in the alleged tort-feasor had not caused the bringing of a separate action by the owner of the boat.

[2] In the second action we have claims for damages to two boats, the Olympia and the Atlanta. The issue was suggested in the previous action as a defense to any claim against the Moran Company, but was not passed upon therein.

The Moran Company chartered, upon the 29th of July, 1916, the boat Atlanta, under substantially the same circunstances and form of oral charter as those previously considered in the case of the Olympia. Both of these boats were used by the Moran Company for the receipt of the subway dirt at the Vinth street dump, and as a matter of law the Moran Company, through implied contract, was bound to return the boats in good order, except for reasonable wear and tear. Any actual negligence or tort of a third party, which would create a cause of action in favor of the owner of the boat, can be brought in under the fifty-ninth rule by the charterer, if the libelant sues the charterer under such circumstances that a breach of the implied conditions of the charter is shown.

In the present case the libelant charged the Moran Company in contract with this breach of the implied conditions of the charter. The Moran Company by petition brought in the Cranford Company, and thus changed the cause of action from contract to tort. It is evident that, unless the Moran Company can satisfactorily substantiate the charge of tort against the Cranford Company, the Moran Company would be liable for the damages, if these be not shown to be caused by the acts of the captain of the scow, as indicated above with reference to the previous cause of action.

In the present case there was some attempt to show that the captain of the SCOW was not on board at the time some of the alleged damage occurred. There was also some evidence that it was customary to place a layer of mud over the side of the scow pocket, before stones were dumped upon the exposed plank. It is evident that the captain of the scow could neither catch any stone which might cause damage, in the act of being dumped, and prevent its striking until a layer of mud could be placed beneath it, nor would he have anything to say about the size of rocks which might be concealed in the loads of earth which were dumped upon the tilting board.

This is not a case where damage resulted from a continued use of the scow in a dangerous manner, nor from the loading of improper material after the matter had been brought to the attention of those responsible for the safety of the scow. The accidents happened, so far as the injuries were inflicted, by stones falling from the dump, through a single blow from some one stone larger than could be re- · ceived with safety, or from a stone which, by its velocity, shape, or manner of striking, happened to inflict the damage. So far as the charter is concerned, therefore, the owner cannot be held responsible for the injuries, and the charterer can pass on the cause of action by bringing in, under the fifty-ninth rule, the alleged tort-feasor. We must therefore consider first whether the Cranford Company was negligent; that is, was responsible for the injuries to the boats.

It appears that the Atlanta was injured by the fall of one of these stones, and that this stone became wedged in the side of the pocket

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