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11 F.(20) 49 further evidence as it may think necessary

view of testimony that oil barrels were in fairly and pertinent, and to make such further or

good condition at point of discharge. der, if it so desires, in reference thereto, as 7. Shipping ww42-General responsibllity for it may conclude to be necessary and proper.

seaworthiness of chartered ship is on shipOrder No. 1 is affirmed.

owner, but not necessarily responsibility for seaworthiness in respect to stowing cargo.

General responsibility for seaworthiness of chartered ship is on shipowner, but this does not necessarily mean responsibility for sea

worthiness in respect to stowing cargo. THE THOMAS P. BEAL.

8. Shipping Om39-Terms of charter party, S. L. JONES & CO, v. BENNETT et al. chartering whole reach of ship, held to con

stitute a letting of ship, creating relation of (Circuit Court of Appeals, Third Circuit. bailor and bailee. February 19, 1926.)

Terms of charter party, chartering the No. 3406.

whole reach of ship and providing captain

should be under orders and directions of char1. Shipping 140_Ship is prima facie excus- terer, held to constitute a letting of the ship, ed from loss arising from peril excepted in as distinguished from contract for services and bill of lading, but can be held liable on af- created relation of bailor and bailee between firmative proof of negligence as efficient cause owner and charterer. of loss.

9. Shipping On 123-Charterer, as between it Where a loss arises from peril excepted in and ship, is liable for negligent stowage, bill of lading, the ship is prima facie excused, where it booked freight, did stowing of cargo, yet it can be held liable on affirmative proof

and assumed responsibility therefor. that negligence on the ship's part was efficient

Where time charterer booked freight, descause of loss.

ignated place of stowage, and did stowing itself, 2. Shipping Om 129—Liability for damage to assuming all responsibility therefor, as be

shipment depends on whether shipper's negli- tween charterer and ship; charterer is liable gence in supplying defective containers, or for damage as result of negligent stowage. carrier's negligent stowage was proximate cause of loss.

Appeal from the District Court of the If shipper caused damage to shipment by United States for the District of New Jersupplying defective containers, the carrier, al


Charles F. Lynch, Judge. though negligent as to stowage, is not liable for the consequences of the shipper's act.

Libels by S. L. Jones & Co. against the 3. Shipping 140—Ship must prove primary steamship Thomas P. Beal, Richard H. Ben

obligation of seaworthiness in stowing cargo nett, Esq., receiver, claimant, and against before availing itself of exception in contract Houlder, Weir & Boyd, Inc., the time charof affreightment,

terer. From a decree dismissing the libels, Before ship can rely on exception in contract of affreightment, it must sustain burden

libelant appeals. Affirmed as against the of proving its primary obligation of seaworthi- ship and claimant, and reversed as to the ness in stowing cargo in berth reasonably fit. charterer, with directions. ted for cargo of that kind.

Hunt, Hill & Betts, of New York City 4. Shipping www 123—Time charterer storing (John W. Crandall, of New York City, of shipper's oil adjacent to fire room was bound counsel), for appellant. to known probable temperature and effect thereof on oil.

Duncan & Mount, of New York City Where time charterer stowed shipper's car

(Joseph K. Inness and Russell T. Mount, go of Perilla oil in cross-bunker, separated only both of New York City, of counsel), for by bulkhead from fire room, he was bound appellee Bennett. to know probable temperature on intended voyage, and to know the effect of the temperature York City (Clarence Bishop Smith, of New

Haight, Smith, Griffin & Deming, of New on cargo of oil.

York City, of counsel), for appellee Houlder 5. Shipping Bano 123—Stowing cargo of oil in Weir & Boyd, Inc.

cross-bunker, separated from fire room by steel bulkhead, held negligence, for which Before BUFFINGTON, WOOLLEY, and charterer is liable.

DAVIS, Circuit Judges. Stowing cargo of Perilla oil in cross-bunker separated from fire room only by steel bulkhead

WOOLLEY, Circuit Judge. S. L. Jones held negligence, and proximate cause of damage to oil for which charterer is liable. & Company, the shipper, first libelled the

steamship Thomas P. Beal for damage to car6. Shipping em 123—Charterer held not negli.


It then filed a libel against Houlder, gent in stowing shipper's cargo of oil in bridge deck space.

Weir & Boyd, Inc., the time charterer of Charterer was not negligent in stowing the ship on the voyage in question. The first shipper's cargo of oil in bridge deck space, in action was in rem; the second in personam. The shipper and charterer stipulated, as lading containing the words "Second-hand between themselves, that liability, should any barrels thoroughly re-coopered and in good be proved, was that of the charterer; and all condition.” The bill of lading was prepared parties stipulated that the libel against the and presented by the shipper and was acship should stand and the two actions becepted and signed by the charterer after consolidated for the purpose of allowing agreement between them in respect to 4 badthe charterer, should the decree be against it, ly leaking barrels, evidenced by a letter from to litigate with the ship, without separate ac- the shipper to the charterer as follows: "In tion, the question whose was the ultimate consideration of your giving us a clean bill of liability, that of the charterer or the ship. lading free from any exceptions as to these Thus the case presents two controversies: particular four barrels, we will hold you One between shipper and charterer and the free from any consequences arising thereother between charterer and ship. The trial from.” court, finding the damage due to fault of the The ship sailed from San Francisco late shipper in a matter within an exception of in July, passed through the Panama Canal, the bill of lading, passed only on the first touched at Baltimore and arrived in New question and, accordingly, entered a decree York on September 6, 1923. On being disdismissing the libels. The shipper appealed. charged, the cargo in question was found

11 F.(20)-4

Greatly compressed, the story of the case damaged, due to leakage. Of the 800 barbetween shipper and charterer, told by facts rels, 59 were empty, 337 partly full and 401 which were admitted or uncontradicted and entirely full. What happened to the remainwhich, when controverted, have been found ing three barrels does not appear. This by this court, is as follows:

represented a shortage of 99,838 pounds The cargo in question was Perilla oil, out of 356,650 weight shipped, or a loss of made in Japan, shipped in sound re-coopered about 28%. The greater leakage occurred second-hand barrels, stowed in the lower in the part of the cargo stowed in the crossholds of trans-Pacific steamers and deliv- bunker. Some leakage occurred in the other ered in good order at a warehouse in San part stowed in the bridge deck space. The Francisco, there to await trans-shipment to learned trial judge did not discuss in his New York. The shipper contracted with opinion the unseaworthiness of the ship in the charterer for the affreightment of the respect to stowing the cargo in improper oil to New York by the steamship Thomas places, urged by the shipper as its ground of P. Beal, then taking on cargo at Puget action, but being impressed by the fact of Sound. While there, the charterer, having leakage both at the port of consignment reserved ample under-deck space for San and port of delivery, and particularly by the Francisco cargo including that of the ship- fact that leakage occurred in the cargo in per, cancelled the reservation and filled the both places in which it was stowed, found space with lumber. The ship arrived in that the damage was due to the shipper's San Francisco with only two places available fault in delivering the cargo to the charterer for cargo of any kind : One her cross-bunker in defective containers, and, leakage from next to the fire room and the other the for- this cause falling within an exception of the ward end of her bridge deck space. The bill of lading, he dismissed the libels. On vessel was an oil burner convertible into a this appeal the shipper charges error to the coal burner and the cross-bunker was provide court not only in its fact finding of defeced, in the latter event, to carry bunker coal. tive containers but in its refusal to consider, The bridge deck space was on top of the or, if considered, in its failure to decide the main deck and on top of it were the houses, question of the charterer's negligent stowage officers' quarters, etc.

in places unsuitable for cargo of that charOn the arrival of the ship at San Fran: acter, as a matter within the bill of lading cisco the shipper delivered to the charterer and, if found to exist, a matter on which at its dock 800 barrels of oil for which the the shipper had a right to recover. charterer's agents issued clean dock receipts question of law arises here we pause to exand a clean dock permit. On their delivery amine and state briefly the law applicable leakage was discovered for the first time. to the subject. Thereupon the pier coopers repaired 14 bar- [1,2] It is conceded that damage from rels and the shipper's coopers about 60 or 70 leakage is an exception in the bill of lading. barrels. The charterer then put the cargo As to this, the charterer—in this instance the aboard and, stowing 455 barrels in the carrier-states the general rule to be that cross-bunker and 345 barrels in the bridge if a loss arise from an excepted peril the deck space, issued to the shipper a bill of ship is excused, and there the carrier, in its

As a

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11 F.(20) 49 statement of the law, is inclined to stop. must sustain the burden of proving its priThe rule, we think, goes further and is that mary obligation of seaworthiness in stowing where a loss arises from such a peril the the cargo in a berth reasonably fitted for carship is prima facie excused, yet it can be go of that kind. The Southwark, 24 S. Ct. held liable on affirmative proof that negli- 1, 191 U. S. 1, 8, 9, 15, 48 L. Ed. 65; gence on the ship's part was the efficient The Thames (C. C. A. 4th) 61 F. 1014, 1022, cause of the loss. The Isla de Panay (C. C. 1023, 1024, 10 C. C. A. 232; Kaufer Co. v. A. 2d) 292 F. 723. Just here the shipper Luckenbach S. S. Co., Inc. (D. C.) 284 takes an odd position, which is, that if the F. 160 and (D. C.) 294 F. 978; The Willcarrier was guilty of negligent stowage, it domino (C. C. A. 3d) 300 F. 5. The shipper is liable for the loss even if the containers in the case at bar, however, did not wait for which it (the shipper) had delivered to the the charterer to perform that duty but itcarrier were not strong enough to hold the self produced evidence of the ship's unseaoil. In other words the shipper maintains, worthiness in respect to stowage and sharpas matter of law, that notwithstanding its ly brought out the issue of the charterer's own negligence in supplying defective con- negligence. tainers (should any be found) negligent [4] As the charterer stowed the cargo in stowage per se fastens liability on the carrier. two places the question of negligent stowage This is not the law, for the question re- naturally is divided into two questions; mains—whose negligence was the efficient stowage in the cross-bunker and stowage in cause of the damage? Negligence of the car. the bridge deck space. This cross-bunker rier is not actionable unless it caused the was built primarily for the stowage of coal damage. If it did, it is actionable and the and it was used for that purpose when the carrier is not, consistently either with Sec- ship was fired with that fuel. Being seption 1 of the Harter Act (Comp. St. § arated from the fire room only by a steel 8029) or with the terms of the bill of lading bulkhead, it was always warm, and when on relieved from liability for it wrongful act. a summer voyage through the tropics, as in If, however, the shipper caused the damage this instance, it was hot. Having been built by supplying defective containers, the car for stowage of coal, little ventilation was rier, though negligent, is not liable for the needed and little was provided. While it consequences of the shipper's act. Liability might have been a proper place in which therefore must be determined according as to stow lumber, another part of the cargo,

it the damage is traced to the action of one

was, according to the weight of the evidence, party or the other party and found to be the

an improper place in which to stow cargo result of the negligence of one or the oth- that would be affected and perhaps damaged

Gilchrist Transp. Co. v. Boston Ins. Co. by heat. In fact it was the hottest cargo (C. C. A. 6th) 223 F. 716, 720, 139 C. C. A. 246; The Isla de Panay (C. Ć. A. 21) 292 space on the ship. The charterer was bound

to know its probable temperature on the inF. 723, 727; The Koranna (D. C.) 214 F.

tended voyage

and to know the effect of that 172, 174; The Willdomino (C. C. A. 3d) 300 F. 5; The Wilton (D. C. S. D. N. Y.) temperature on the cargo of oil, an article 2 A. M. C. 1105, 1106, 1107, 10 F.(22) 244. which under normal conditions and with the [3] In searching for this liability the nature best of cooperage always seeps through its of the transaction must first be looked into. containers and leaks in some degree. Here it is a contract of affreightment which [5] On discharge of the cargo it was disimposes upon the carrier the stringent obli- covered that most of the leakage had ocgation that the ship shall be seaworthy at curred in the barrels stowed in the crossthe commencement of her voyage. This ob- bunker and most of this leakage had ocligation relates not merely to her hull and her curred at the barrel heads. The evidence capacity to weather the perils of the sea but shows very clearly that the charterer's servextends as well to her fitness and capacity to ants stowed the oil in the cross-bunker and carry the cargo she has undertaken to trans- on the bridge deck because they were the port. In other words, there is an obligation only spaces available, in fact, the only carof seaworthiness in respect to stowage of go spaces left in the ship, and they did it cargo, -an implied warranty that the ship is without thought of the character of the cargo seaworthy quoad that cargo. When sued by or without regard to the consequences. We a shipper for damage to cargo, the ship (or are of opinion that this amounted to neglia time charterer) cannot rely alone upon an gence, which was the proximate cause of the exception in the contract of affreightment damage, for which the charterer, the carrier, but, before availing itself of the exception, is liable.



[6] Stowage in the bridge deck space pre kind are regarded as being better than new sents altogether different situation. barrels. At all events, it is not disputed that While that probably was not the best space they were sound when shipped from the in the ship in which to stow oil, it has not Orient and when they arrived in San Franbeen proved that it was an improper When delivered to the ship's dock, It was not below the water line and, in conse- many were sweating and some were leaking. quence, it was exposed at times to the heat of Some were re-coopered and the lot was acthe sun.

Moreover, insulated steam pipes, cepted by the charterer as "thoroughly reuncovered at the joints and flanges, ran coopered and in good condition.” At the through the space, and through the pipes live port of discharge those that had been stowed steam passed for several hours when the in the bridge deck space were in "fair shape" ship was in the Panama Canal and for sev- and in "fairly good condition." Those that eral days when she was discharging cargo had been stowed in the cross-bunker were at Baltimore. Yet we hesitate to lay down leaking and were in "bad shape." a rule of ship transportation affecting what The difference in the conclusions at which ordinarily is the business of the ship's owners the trial court and this court have arrived or her charterer, varying always with cir- is due, we surmise, to the difference in the cumstances of ship, cargo, season and climate premises from which they were drawn. The and controlled in respect thereto by the ap- trial court took as the major premise the plicable law of care and caution. Confin- more or less leaky condition of the barrels ing ourselves to the shipment in question, we at the time of loading and the fact that leakare satisfied from the location of the cargo, age on discharge was discovered in the cargo its character and its condition on being dis- stowed in both places, and therefrom deduced charged that the charterer was not negligent the conclusion that the fault lay in the bar. in stowing oil cargo in the bridge deck rels. This court took for the major prespace. We base our judgment mainly on mise the fair condition of the barrels upon the testimony of McManus and Honam, loading and on discharge the bad condition of coopers at the port of discharge who after those stowed in the place of high heat and describing the bad condition of the oil bar. the fair condition of those stowed in the rels as they came out of the cross-bunker- place of less heat, and therefrom deduced “they remained warm for two days”-stated the conclusion that the damage to the forin respect to the barrels that had been stowed mer was due to the excessive heat in the in the bridge deck space: "They were com- place of stowage and that the leakage in the ing out in fairly good condition;" "the big latter was normal. loss of oil took place in the cross-bunker;" In the second aspect of this litigation, the “the loss was small in the other part of remaining question is, who shall bear the loss, the ship (bridge deck), showed comparison the time charterer of the ship or the owner right there;" "they came out fairly well;" of the ship? “if the whole cargo had been shipped where [7] On the issue of liability for bad stowage, the first lot was hadn't been in that bunker as between the time charterer and the shiphatch they wouldn't have had any loss or owner, the time charterer relies mainly on very small if you had;" "I know 400 odd cases which hold generally, and very properbarrels came out of the bunker batch and ly, that responsibility for the seaworthiness they were in bad shape;" "them were pret- of a chartered ship is on the shipowner, Britty good barrels that come out first (bridge ish & Foreign Marine Ins. Co. v. Kilgour deck) ;" "they were in very fair shape, very S. S. Co. (D. C.) 184 F. 174; Dunlop S. S. good barrel;" “then they started the cross- Co. v. Tweedie Trading Co. (C. C. A. 20) bunker hatch; there's where the trouble com- 178 F. 678, 102 C. C. A. 173; Dene Shipmenced.”

ping Co. v. Tweedie Trading Co. (C. C. A. We are aware that these opposite findings 2d) 143 F. 854, 74 C. C. A. 606; Olsen v. of negligence and no negligence in stowing U. S. Shipping Co. (C. C. A. 20) 213 F. the cargo in the two spaces is open to the 18, 129 C. C. A. 607; Munson S. S. Lines observation that leakage occurred in both v. Glasgow Navigation Co. (C. C. A. 20) places and to the inquiry whether if so, was 235 F. 64, 148 C. C. A. 558; The Thames not the learned trial judge right in finding the (C. C. A. 4th) 61 F. 1014, 10 C. C. A. 232. fault that of the shipper in supplying de But that, generally, means responsibility for fective barrels? The barrels were second- seaworthiness of the ship as against perils hand, which at first sounds bad. But they had of the sea; it does not, in every instance, been re-coopered and glued and there is mean responsibility for her seaworthiness testimony that in the trade barrels of that in respect to stowing cargo. Ordinarily, the 11 F.(20) 53 owner charters only the space; the ship for. On the issue between the charterer and continues in the possession, management and the ship we find the charterer liable. control of the owner and its officers and On the several findings indicated, the decrew. But in this case of, a time charterer, cree of the District Court in so far as it the charterer, in chartering the space, char- dismissed the libel against the ship and her tered the whole reach of the ship; the owner receiver as claimant is affirmed, and it is in terms put at "the charterer's disposal" her reversed in the part denying recovery to the “holds, decks and usual places of loading.” shipper, with instructions that the case be The charter party also provided that "the reinstated and the shipper allowed such damcaptain (although appointed by the owners) ages as, after reference or otherwise, the shall be under all the orders and directions court shall determine it sustained by reason of the charterer as regards employment, of negligent stowing of cargo in the crossagency, or other arrangements" and stipu- bunker; costs of trial to be divided and lated that the owners shall provide the char- taxed as the trial court shall decide; costs terer “ropes, falls, slings and blocks neces- of this appeal to be divided and taxed onesary to handle ordinary cargo” and surren- half against the libellant shipper and onedered to the "charterer's disposal," during half against the charterer. loading and discharging, the “ship's steam winches” as well as her “dunnage and shifting boards.” [8, 9] The terms of the charter party make it certain there was a letting of the ship as

UNITED STATES ex rel. TASSELL et al. v. distinguished from a contract for her serv

MATHUES, U. S. Marshal. ices. In the former case, the relation between owner and charterer becomes that of (Circuit Court of Appeals, Third Circuit. bailor and bailee; whereas, in the latter,

February 16, 1926.) the relation is that of carrier and shipper.

No. 3454. Carver (4th Ed.) § 112; The Barnstable, 21

1. Criminal law Om 113-Defendant may be S. Ct. 684, 181 U. S. 469, 45 L. Ed. 954.

tried at any place where conspiracy took According as it is one or the other the ques- place, or overt act was committed. tion arises—whose agents wrought the injury, Though defendant, as general proposition, and there is suggested the inquiry put by should be tried by a jury of the vicinage, under Lord Esher in 1 Q. B. 258: “When is a law of conspiracy he may be tried at any place

where conspiracy took place, or where overt captain the owner's captain ?” Transposing

act was done. the question, we ask: “When is the captain the charterer's servant ?" Directing these in- 2. Criminal law Cm 242(6)—Doubtful questions quiries to the case in hand, it is clear that,

as to indictment left for court, where indict.

ment found, and defendant removed to that within the law of The Santona (C. C.) 152 district. F. 516, 518, opinion by Judge Hough, while

A defendant should not be removed from the owner did not surrender possession or one district to another for trial where indictcontrol or command or navigation of the ment clearly fails to charge a crime; but, where

only doubtful questions of law arise as to its ship, "he has surrendered control of her

sufficiency, final determination of them should freight and passenger capacity and handed be left to court in which it was found. the same over to the charterers for all lawful

3. Criminal law O 242(4)-Removal from dispurposes. The ship (was] the owner's ship,

trict for trial improper, if grand jury had no and the master and crew his servants for probable cause for finding indictment. all details of navigation and care of the A defendant should not be removed for trial vessel; but for all matters relating to the from district in which he resides, and which receipt and delivery of cargo, and to those has jurisdiction over crime charged, to anothearnings of the vessel which flow into the

er district, also having jurisdiction, if it ap

pears that grand jury which found the indict. pockets of the charterers, the master and ment did not have reasonable and probable . crew [were] the servants of the charterers.” cause for its action, And so the parties in this case construed the 4. Criminal law O 242(5)-Indictment raises charter party, for it is perfectly clear that presumption of probable cause, warranting the charterer, first at one port and then at

removal from district. another and finally at San Francisco, booked

Finding of indictment raises presumption the freight, designated the places of stowage, charged and defendant identified, alone justifies

of probable cause, which, if crime is sufficiently did the stowing itself through its own, steve- order of removal, unless overcome by evidence dores, and assumed all responsibility there- adduced by defendant.

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