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10 F.(2d) 950 owner's agent to sign bills of lading, and such 17. Principal and agent 161(2), 164(1), 175 contracts, entered into in good faith and with- (3)-Principal may repudiate or ratify unauin scope of his apparent authority, bind ship, thorized act; principal's ratification of agent's irrespective of its ownership, whether master unauthorized act is equivalent to prior auis agent of general or special owner.
thority to perform it. 10. Shipping Ow 154-Where ship never breaks
Principal may repudiate or ratify unauthorground and voyage is abandoned, ship has no
ized act by one assuming to act as agent, and, lien on goods.
if he ratifies such act, it is equivalent to prior
authority, and relieves agent from any liability Where ship never breaks ground and voy
to third person, if such person is not thereby age is abandoned, ship has no lien on goods for placed in worse position than he would have freight.
been, had agent acted under prior authority. 11. Shipping Om 105-Action in rem lies for breach of contract of affreightment, where
18. Shipping Om 106Master's approval and goods have been actually delivered on ship.
signing of bills of lading issued by subcharter
er before arrival of ship held ratification Action in rem lies for breach of contract of affreightment, where goods have been actu
thereof, binding on ship. ally delivered on ship.
Master's approval and signing of bills of lad
ing, issued by subcharterer without authority 12. Shipping 143—-Shipowner is not liable before arrival of vessel, held ratification there
as carrier merely because of his ownership, of, which bound ship.
19. Shipping Om 106–Master's approval of is. Shipowner is not liable as carrier merely
suance and delivery of bills of lading by subbecause of his ownership, but is liable only if charterer held ratification thereof, binding on ship is within bis employment, and party hay.
vessel. ing control of ship and in whose business it is engaged is regarded as owner pro hac vice, and
Master's statement, when informed that is liable to shipper.
bills of lading had been issued and delivered by
subcharterer, and that others might be so is13. Shipper m106—Master's authority to bind sued, that it was “all right," held ratification
ship and shipowner by signing bills of lading thereof, binding on ship; no particular form of stated.
ratification being necessary. Master cannot bind shipowner by signing bill of lading for goods never shipped, nor can
20. Principal and agent om 167-Generally he bind ship by signing second bill of lading for
ratification may be by parol. goods on board for which he has already signed
General rule is that, except where ratificaone bill
tion in writing is required by sealed instru
ment, 14. Shipping Om39, 106-Where charter is de
or statute, principal's ratification of mise of ship, shipowner is not liable on bilis agent's unauthorized act need not be in writing,
but may be by parol. of lading signed by master.
Where charter is demise of ship, shipowner 21. Shipping Om 106–Master's letter, authoriz. is not liable to shippers on bills of lading signed ing subcharterer to sign bills of lading, held by master, even if shippers do not know of ratification, binding on ship. charter; whether charter amounts to demise depending on whether owner has parted with
Master's letter, authorizing subcharterer to full possession and control during period of sign bills of lading in master's behalf as agent charter party.
for owners and charterers, held ratification of
such bills of lading, binding on ship. 15. Shipping Om39, 106-Charter held not a
demise of ship, and master, in signing bills of 22. Shipping w133–Suit in rem against ship lading, bound ship.
for breach of contract to carry cannot be de
feated by showing that suit might or might Charter whereby owners furnished ship,
not have been brought against charterer in master, and crew, and charterers bad no power
personam. to displace master or crew, master to be under charterer's orders as to employment, agency,
Shipper's suit in rem against ship for breach or other arrangements, charterers to indemni- of contract to carry under bill of lading cannot fy owners against consequences arising from
be defeated by showing that suit might or might master's signing of bills of lading, held not
not have been brought against charterer in a demise, and master, in signing bills of lading. personam under dock receipt. bound ship.
23. Shipping Om 106-Ship, discharging cargo 16. Shipping On 133—Ship hypothecated to for nonpayment of charter hire, held liable shipper for damages for failure to transport to shippers under bills of lading signed by goods.
master. In every contract of affreightment, whether Though charterer's default in paying charby charter party or bill of lading, ship is hy- ter hire relieves shipowner from contract with pothecated to shipper for any damage sustained charterer, it did not relieve ship from liability by goods through failure to transport them to safely transport goods under bills of lading safely; injuries not being result of excepted signed by master, notwithstanding ship had not perils,
24. Shipping 130—Shipper should mitigate ship, and the Fulton Steamship Corporation,
damages by forwarding goods by other called in the agreement the charterers. By means, if possible, where ship wrongfully discharges cargo.
this agreement "the time-chartered owner," Where ship wrongfully discharges cargo, it Cameron, placed the ship at the disposal of is shipowner's duty to mitigate damages, as far the charterers, the Fulton Steamship Corpoas possible, by forwarding goods by other ration, "for a voyage to Far East ports, to
load the steamer on berth as advantageously 25. Shipping 131-Shippers' measure of as possible at the best rates and conditions damages for ship's wrongful discharge of car
obtainable.” The agreement provided that: go stated.
“The time-chartered owners have to pay Where cargo is wrongfully discharged by ship, shipper's
of damages all port charges, pilotages, commissions, and as to goods forwarded by other means is differ- so forth, at both loading and discharging ence between market value at destination when ports, including stevedoring, tallying, and all they would have arrived by ship, and market value when actually received, plus freight and expenses which will accrue in the interest of other necessary expenses; as to goods not re
the cargo and against the steamer; whereas, shipped it is difference between their market the charterers undertake to do their best to value at destination when they should have secure the most profitable rate of freight, to arrived and market value on arrival of next load and ship as quickly as possible, and available ship; market value at place of ship
The ment being considered only if goods cannot be keep the expenses as low as possible. forwarded because of lack of other means or time-chartered owners accept liability for want of markets at destination.
proper stowage, dunnage and discharge of
steamer, and for any claims on the cargo and Appeals from the District Court of the for any claims made by and/or against the United States for the Eastern District of vessel. New York.
“The time-chartered owners agree to inSeparate libels by Cooper & Cooper, Inc., struct the captain to take all orders from the and by Harrisons & Crosfield, Limited, charterers or the agents just the same as if against the steamship Capitaine Faure, Reu- the charterers were the time-chartered ownben I. Cameron, the Fulton Steamship Cor- ers." poration, and the Société de Navigatione a The respondent Société de Navigatione a Vapor France Indo-Chine. From a decree . Vapor France Indo-Chine is a corporation for libelants (1 F. 406), granting relief organized and existing under the laws of the less than that demanded, libelants appeal. republic of France, and maintaining an ofDecree modified.
fice in the city of Paris. It is the owner of The libelant Cooper & Cooper, Inc., is a
the steamship Capitaine Faure. corporation organized and existing under the
Reuben I. Cameron is an individual dolaws of the state of New York, and maintain- ing business in his own name in the borough ing an office in the borough of Manhattan in of Manhattan, city of New York, and is the the city of New York; and the libelant Har- charterer of the steamship Capitaine Faure. risons & Crosfield, Limited, is a corporation The two libels were filed against the organized and existing under the laws of steamship Capitaine Faure in rem and Great Britain, and maintaining an office for against her owner, Société de Navigatione the transaction of business in Montreal, in
a Vapor France Indo-Chine in personam, the Dominion of Canada.
and also against Reuben I. Cameron, the The Fulton Steamship Corporation, here- charterer, and the Fulton Steamship Corinafter called the Steamship Corporation, is poration, which booked the cargo for the a corporation organized under the laws of voyage under a subcharter agreement with the state of Delaware, and it maintains an of- Cameron, the charterer. fice in the borough of Manhattan in the city The owner of the vessel appeared and of New York. It is the agent of the char- filed a claim thereto, and a stipulation for terer of the Capitaine Faure. The charter value, under which the ship was released, and provided that the charterers should have the answered the libels as claimant and respondoption of subletting, giving notice to owners, ent. The other two respondents, Cameron but that original charterers were always to and the Fulton Steamship Corporation, deremain responsible to owners for due per- faulted. formance of the charter.
For purposes of trial the suits were conThereafter a “berth agreement” was en- solidated. The court rendered an opinion tered into between Reuben I. Cameron, styl, allowing libelants a recovery against the ing himself “time-chartered owner of the ship on some of the bills of lading, but not
10 F.(20) 950 on others. The other holdings of the court with interest, costs, and disbursements. The will appear in the opinion of this court on total amount involved is $154,650, together the appeal.
with the interest, costs, and disbursements in Hunt, Hill & Betts, of New York City
the suits. (Geo. Whitefield Betts, Jr., John W. Cran
The steamship Capitaine Faure was chardall, and Arthur H. Haaren, all of New York tered to Reuben I. Cameron on March 21, City, and Leo C. Fennelly, of Brooklyn, N. 1923, for a period of six months, and it was Y., of counsel), for appellants.
expressly provided that the charterer should Burlingham, Veeder, Masten & Fearey, have the option of subletting the vessel. This of New York City (Roscoe H. Hupper and option Cameron exercised by entering into a William J. Dean, both of New York City, berth agreement with the Fulton Steamship of counsel), for the Capitaine Faure and Corporation, which placed the steamer at the
disposal of the latter for a voyage to Far
East ports. The original charter to Cameron Before ROGERS, MANTON, and provided that payment of hire was to be HAND, Circuit Judges.
made in cash in New York, every 30 days in
advance, and in default of payment the ownROGERS, Circuit Judge (after stating
ers "have the right of withdrawing steamer the facts as above). These libels were filed from the service of charterers, without noting in causes of admiralty and maritime juris- any protest, and without the interference of diction. The libelants sued the steamship any court or any other formality.” And in and the owner thereof, the charterer, and the the berth agreement, made by Cameron with agent of the charterer. The libelants allege the Fulton Steamship Corporation, the latter that in the months of April and May, 1923, agreed to advance "one month's charter hire, they shipped and placed on board the steam- which amounts to $10,990.80 on date same is ship, then lying in the port of New York, payable.” That amount was paid when it bebound for various ports of Japan and China, came due, not by Cameron, but by the Fulton certain merchandise in good order and con- Steamship Corporation, in accordance with dition, consigned to the order of the respec- its agreement with Cameron. That was the tive shippers, under and in pursuance of bills only payment to the owners of the ship that of lading issued for such shipments in a the Fulton Steamship Corporation had manner hereinafter more fully stated, and agreed to assume. The second payment was that the respondents thereby became bound to be paid by Cameron on May 9, 1923, but jointly and severally to transport the said he was unable to make the payment at the goods from the port of New York to the time it was due, with the result that, alports of Japan or China named in the bills though the ship was loaded and ready to sail of lading, and there to land and deliver them on May 7, 1923, the owner of the vessel inin like good order and condition as shipped. structed the master that he must not allow They also allege that the steamship never the ship to start on her voyage and she never sailed from the port of New York on the in- did. Instructions were given to unload her tended voyage, but remained at the wharf cargo at New York and it was accordingly where the shipment was loaded, and where unloaded. the ship was at the time the libels were filed. This cargo had been procured by the Ful
The suits are brought to recover for the ton Steamship Corporation and had been breach of the contracts of carriage and for loaded on board the vessel pursuant to its the failure to deliver the shipments. They orders, and by virtue of the berth agreement are also brought to recover damages on the it had made with Cameron. The failure of ground that the goods are not now in like the ship to start on her voyage and carry the good order and condition as when received goods on board to their destination in Japan for shipment, but are shot, pilfered, ullaged, and China is the cause of these suits. They damaged, and otherwise injured by the un- are not brought by the owner of the ship, but seaworthiness of the ship and the fault of by the owners of the cargo. the vessel and the other respondents in con- The Fulton Steamship Corporation, aftnection with the loading, handling, and stow- er the berth agreement was signed, went into age, custody and care of the goods.
the market and engaged cargo to be forwardUnder the first libel the amount asked is ed on the Capitaine Faure from New York $138,650, together with interest, costs, and to Yokohama, Kobe, and Shanghai. It also disbursements; and under the second libel engaged cargo from New Orleans, and bethe amount demanded is $16,000, together tween the ports of New York and New Orleans was booked full, and the Fulton Steam- ing provision: “Charterers to indemnify ship Corporation had to stop booking. owners against all consequences or liabilities
At New York the Fulton Corporation is- arising from captain, officers or agents signsued permits to the shippers to put the cargo ing bills of lading or other documents, or othon the dock, and when the goods were deliv- erwise complying with such orders, as well ered at the dock those in charge issued dock as from any irregularity in steamer's paper receipts on Fulton Steamship Corporation or for over-carrying goods." stationery, which were signed in its name by This indicates to us that, while the master its receiving clerk. These dock receipts read was to have the right to sign bills of lading, as follows:
the charterers were bound as between them"Fulton Steamship Corporation regular selves and the owners to indemnify the latter bill of lading in use by it for similar ship- against the consequences thereof. To indemments (upon the basis of which freight rates nify is to make good a loss. It is to reimare fixed) shall be issued for said goods to burse one for a loss incurred. If the ship the above-named shipper. Fulton Steamship was not to be bound by a bill of lading signCorporation shall not become responsible for ed by the master, why any necessity for the the goods as carrier until the goods are ac- statement that the charterers were to indemtually loaded on the steamer; until such load- nify the owners against the consequences of ing it shall be liable only for loss or damage his doing so ? And these libels are not occasioned by its fault, such as an ordinary brought on the dock receipts as mentioned bailee is liable for, but subject also to the in the pleadings, but on the bills of lading. conditions, exceptions, and limitations of lia- And it is on the bills of lading that this case bility and value contained in said regular must be decided. bill of lading, with which shippers are un- The Steamship Corporation issued the derstood to have acquainted themselves, and permits to put the cargo on the dock, and on to which they assent."
its stationery dock receipts were issued by [1,2] The language used in these receipts is men in charge of the pier, and who were enrelied upon to fix responsibility on the Ful- gaged and paid by the charterer of the ship. ton Steamship Corporation rather than on The bills of lading were issued by the traffic the ship for its failure to carry. A dock re- manager of the Steamship Corporation, and ceipt is not a contract of affreightment. It the freight was paid to that corporation by is not necessarily a delivery to the ship. It checks payable to it, with the exception of is true that the shipowner may become liable two made payable to the master of the vesfor the goods before they have been actually sel, and were by him indorsed to it. Most placed on board. But to make him responsi- of the bills of lading were signed by the ble it is necessary that the goods should be Steamship Corporation as agents for the delivered to him or to his authorized agent. master of the ship. It signed no on-board Carver on Carriage by Sea (7th Ed.) § 68. bill of lading, but they were signed “at the A dock receipt, not issued by one as agent, dock or at the port of loading, for shipment." undoubtedly makes the one issuing it liable After the ship arrived at New York the bills for its performance, even though the princi- of lading were signed by the master, although pal for whose benefit it was in fact made may a few were even then signed by the Steamalso be liable. But the shipper is entitled to ship Corporation. have a bill of lading, and in the shipments As to the bills of lading the following tesherein involved bills of lading were issued. timony was given: As between the shipowner and the shipper, The president of the Fulton Steamship the bill of lading is the statement of the con- Corporation testified as follows as to the bills tract between them.
of lading which were brought to the atten[3, 4] Bills of lading are commercial docu- tion of the master on the arrival of the ship ments upon which the shippers and their in- in New York: dorsees are entitled to rely. The charterers “Q. Do you remember the bills of lading were in certain respects in the position of being in two piles when the captain came in ? owners pro hac vice, and could bind the ship A. The first time the master was requested in certain matters. But the charter itself did to sign the bills of lading, they were arrangnot expressly authorize the charterers to sign ed on a small table in the outer office, near bills of lading or to appoint the master. The the door to the Fulton Steamship Corporacharter provided that the charterers should tion's private office, in two piles. take over the ship with its master, officers, “Q. What did those piles each contain and crew. The charter contained the follow- A. One pile contained a number of ladings 10 F.(20) 950 ready for signature. The other pile consist- testified as follows (concerning his interview ed of the ladings that had been signed and with the master): issued by the Fulton Steamship Corporation. “Q. You didn't have any letter from the
“Q. What did you say to the captain captain, telling you to sign bills of lading, about these piles of bills of lading? A. I did you? A. No; I did not have a letter asked the captain to sign the ladings that from the captain, telling me to sign bills of were waiting for signature. I showed him lading. where to sign, and which ladings to sign, and “Q. He had not written you with respect which to initial. I showed him the ladings to bills of lading? A. He had not; but, when that had been signed, and told him that this I first asked him to sign bills of lading, I had cargo had already been signed for by the with me at the time another pile on the same Fulton Steamship Corporation. He asked if table, a copy of the bills of lading that had the cargo was on the dock, and I told him, been signed and issued, and I called his at‘Yes; that we issued no bills of lading until tention to that, and showed him how the Fulwe had the cargo in our possession, and that ton Company had signed them, and told him the cargo was either on the dock or going in- why they had signed. to the ship at that time.' He signed the bills “Q. Give us the conversation? A. I can of lading that I asked him to sign. He look- give you the gist of the conversation. As ed over the others in a perfunctory sort of near as I can recollect, I said, 'Captain, here way, and I asked him if everything was all are some ladings for you to sign. I had to right, and he said it was.
show him quite plainly that it was not neces"Q. Did these bills of lading that you sary to write his full name on all the copies showed him, that had been signed by the Ful- of each set of lading, but to sign one or two ton Steamship Corporation, have on them negotiable copies, and initial the piles on the signature of the Fulton Steamship Cor- copies of each set. He went ahead and signporation as agent for the master? A. Yes. ed, and made no objection whatever.
“Q. Did you show him that signature ? “Q. Was that all that passed between you A. Yes.
with regard to the piles A. That was all. “Q. And you asked him if that was all He said, 'Is this cargo on the dock?' And I right? A. Yes.
said, 'All that cargo is on the dock, or is now “Q. And he said what? A. Yes.
going into the ship.' I didn't know what had “Q. Did he make any objection to the been loaded at that time, but I knew that bills of lading that were signed by the Fulton the loading had started. I then showed him Steamship Corporation, as agent for the the balance of the ladings which had been ismaster? A. No, sir.
sued by the Fulton Steamship Corporation, “Q. Did you explain to him why you had I said, 'These have already been issued, and to sign those bills of lading before the ship you will not be required to sign these. We got here? A. I mentioned the fact that the have had to sign them, because the shippers reason their bills of lading were signed was wanted their ladings, and the ship is late. because some of the shippers desired to have She should have been here on the 26th or their documents for banking purposes. 28th; we had advertised her for those dates.'
“Q. Do you remember saying to him that He looked at them. He asked me again, 'Is it was also because he was detained ? A. that cargo all right? Have you the cargo ?' Yes, sir; I told him the fact that the ship I said, 'Yes; the cargo is in our possession, was late in arriving, and was advertised to and is going on board the ship;' and he said, sail from New York on the 26th or 28th of 'That is all right.' I pointed to him where March, before her arrival.
the signature was to be made, and how it “Q. Did he subsequently ever make any was made, and he asked me who these peoobjection to your signing those bills of lading ple were. I think some had been signed by as agents for the master? A. No, sir; as far Everson and a couple by Brockstedt, and I as I could judge from his attitude, he was said they were employees of the Fulton very agreeable and very affable. He made Steamship Corporation. They were signed, no objection whatsoever.
these bills of lading were signed, as agents "Q. Was all this cargo for which you is- for the master. sued bills of lading put on board the vessel ? “Q. They had some statement, 'Agents A. Yes.
for the master ? A. Agents for the master. "Q. And later discharged by her? A. I “Q. Did the master then say, 'Who gave understand it was all discharged."
you authority ? A. No; he said it was all And on cross-examination this witness right.