PORTLAND. 'SHIPPING CO. t1. 'XHE ALEX GIBSON.
371
PORTLAND SHIPPING
v.' rHE ALEX ,GIBSON.
O'BRIEN'll. PORTLAND SBIl'PING CO. (Dt8tr!ct Oourt, D. WashtlJnQton, N. D.
October 81.1890;
-1. ClIARTEB-PARTY-lNTERPRETATION Oll' COliTRAOT-STEVEDORE.
A charter-party containing a clause reading, "The vessel to employ stevedore satisfactory to charterers; but, if appointed by them, the charge not to exceed that current at the time, and to be stowed under the captain's supervision and direction, " -does not the charterer an absolute right to select the stevedore. A clause so worded IS to be understood as an agreement -that the stevedore must be satisfactory to both parties; and in suuh a case the charterer is hot entitled to damages because of delay in commencing to load, resulting from a disagreement between him and the master'in regard to the selection of a stevedore. Damages cannot be recovered by the charterer by reason of the vessel having been removed from the loading port previous to the signing of the bills of lading, and Without sailing orders from him, where the master acted prudently, and for the interest of all concerned, and the charterer sulfered no loss or injury thereby. Oll' CONTRAOT-DAMAGES.
8. DEMURRAGE.
Delay in loading, reSUlting' from the failure of the charterer and master of the vessel to agree in selecting a stevedore, where the contract requires the employment of. a stevedore satisfactory to both, does not give the vessel a right to demurrage.
'" ADMIRALTT-DETENTION Oll' VESSEL-DAMAGES.
The arrest and detention of a vessel by legal process in a suit in rem, which, al· though unfounded, is not maZa f/de8, does not entitle the owner to dama,cs. (SyZl.alm8 by th.6 Oourt.)
In Admiralty. C. E. S. Wood, for libelant. J. Haines, for claimant and cross-libelant. HANFORD, J. The ship Alex Gibson was chartered by the libelant to carry a, cargo of wheat from Tacoma to a port in Europe to be designated bY,thll charterer. A charter-party was signed in Portland, in the state of Oregon, containing, among others, the following provisions:
"The vessel to employ stt'vedore satisfactory to charterers; but, if appointed by them, the charge not to exceed that current at the thnl'. and to be stowed under thE' CIlptain's superVision and direction. Chartert'rs to furnish the VI'Ssel with sufficient forstiffeni ng, as customary. The captain gIves them usual 48 hours' written notice of when tile vessel will be ready to take in same, and of the quantity reqUired. ... ... ... Bills of lading to LJe dUly and promptly signed when required by charterers. '" ... '" 30 working lay days, (rainy days not, to be counted as lay days,) tocommence twenty-four hours after the inward cargo ballast shall have bt'en finally discharged, and the isready to receive captain has Kiven charterers written notice that his cargo, are to be allowed charterers for loading anll waiting orders at Tacoma, as hereinbt'fore provided. ... ... ... Loading days not to commence before exceptatcharterer'soption. ... ... ... It is 3ft reed that for December 15, each and every day's detention LJy default of said parties of the st'cond part, or their agents, four pence sterling, or equivalent. per, register ton per day shall be 'paid,.day by day. by said parties of the second part. or their agent. to said party first part. or his agent." ,,
372
FEDERAL REPORTER,
vol. 44·
. The ship was at her loading berth, and ready to receive stiffening, on 12, 1887, but the ch.arterer, although then ready with sufficient wheat on hand, refused to load her, because of a disagreement with the master of the ship as to the selection of a steve:lore, and insisted that certain persons, who were objectionable to the master, and none other, should be employed to stow the cargo; and in consequence of this disagreement the loading was not commenced until January 5, 1888. The contract does not, by any express provision, bind the vessel to commence loading or to sail by any particular date; but the libelant claims that the delay in commencing to load was a violation on the part of the vessel of the implied condition of the charter-party that she should, with reasonable promptliessand dispatch, receive her cargo and proceed upon the voyage. As soon as she was loaded, the vessel,. contrary to orders from the charterer to avoid expense which would result from detention of a tug, left Tacoma, and was towed to Port Townsend, the place to which she had to go to ship her crew for the voyage. Bills of lading were not signed, nor presented to the master for his signature, before the ship left Tacoma; but the captain returned and signed them at that . place while the ship was at Port Townsend, in fulfillment ofa promise made byhim to the charterers' agent before leaving there. The libelant claims that by so leaving the lOading port without orders, and previous to the signing of the bills of lading, the charter-party was also violated .., on the part of the ship. For these alleged breaches of contract the libelant brought this liuit to recover as damages an amount sufficient to cover a loss alleged to have been sustained by reason of the decline in price of wheat in England between the times when the Alex Gibson should have been loaded, if the charterers' stevedore had heen employed at first, and the time when she was actually loaded i and also certain alleged <1isbursements and expenses, including counsel fees. . I hold that the charter-party cannot be fairly understood or construed so as to support the libelant in its contention for the absolute right to select a stevedore, and to insist on that stevedore, and none other, being employed by the master, regardless of his will. To employ a persOliis to contract with him, so as to become liable to him for compensation, and to assume the responsibilities and liabilities of an employer; and requires the meeting of minds and the free assent of both parties to the assumption of the relation of master and servant. It -is usual in the charter-party to provide that the vessel shall employ the charterer's stevedore. Such an agreement is fair, because, by its terms, it indicates a particular stevedore, and the master or owner by entering into the Contract assents to his employment; and such a provision in the charterparty is not inconsistent with the right of the master to discharge the employe for disobedience; incompetency, or other sufficient cause. But an agreement binding one to employ for a particular service, .requiring skill and fidelity ,whomsoever should be selected in the future by another, regardless of the employer's judgment at the time as to the competency and trustworthiness of the one so to be selected; would be un"
PORTLAND SHIPPING CO. V. THE ALEX GIBSON.
373
reasonable, for it would be the same as for a man to promise to in the future willingly do something contrary to his will. The agreement UDder consideration is not so worded as to express an intention to bind the vessel to employ as stevedore a person objectionable to the master, and I cannot by construction give to it that meaning. What is termed the "stevedore clause" in this contract is unusual, ambiguous, and meaningless, unless construed to mean that a stevedore satisfactory to both parties should be employed. I shall so construe it rather than reject it altogether as being void for uncertainty. The attempt made to aid in giving the contract the interpretation contended for by the libelant, by offering proof of a general custom at Portland, where this charter-party was signed, allowing the charterer the absolute right of selecting the stevedore under an agreement worded as this one is, fails of its object. The testimony shows that in Portland there are only two persons or firms engaged in stevedoring, both of whom are satisfactory to the shippers of wheat, and that the form of the stevedore clause in this contract was adopted there, as a substitute for the usual clause, for the express purpose of allowing the ship-masters to employ either of said stevedores as they should elect. This does not even tend to prove any general custom or practice which would require the master to yield to the. charterer in case of a disagreement between them as to the selection of a stevedore. . There was no breach of contract by failure to sign the bills of lading1 because the captain. did sign them when they were presented for his signature, and until then the contract did not require him to sign them. The master acted reasonably in proceeding to Port Townsend with his vessel when she was ready to go, and the tug was ready to take 'her, and, although such proceeding without orders was technically a violation of the charter-party, still the libelant was not injured thereby, and is· not on that account entitled to recover damages. .As the court cannot find that the contract has been violated to the in, jury of the libelant, no damages can be awarded to it, and the libel will be dismissed. The owner of the vessel has filed a cross-libel, to re:lover demurrage for the time the ship was delayed in loading in excess of what would have been the lay days if there had been no disagnieinent as to the employment of a stevedore, and also damages for the time the ship was detained by legal process after being arrested by the marshal under the attachment and monition issued in this case. . As to the first part of this claim, I think it is right in this case to hold the parties to the letter of their contract as to lay days; and I find from the evidence that the ballast was not all discharged, and the ship was not finally made ready for her cargo, until the 12th day of Janu-. ary, 1888, so that the 14th day of .Tanuary must be counted as the first lay day, the six intervening Sundays and two stormy days must be omitted from the count, and the result is that February 20th was the of the ,lay days, according to. the terms of the contract. The ship waslolided and left Tacoma February 16th; . The bills of lading were
374
FEDERAL REPORTER, vol. 44."
signed and her orders to sail were given on the 20th. Her. crew was shipped and: the last man was received on board on:the 23d, and 011 that. day she could have sailed if this suit had not been commenced. After' ffiing . a satisfactory stipulation, she was releaSed, and on March 8th proceededon her voyage, under command of a new master; Capt. Speed being.obliged, on account of this suit, to remain. The time, therefore, of actual detention of the vessel by the use of legal process in this case was from February 23d to March 8, 1888, 14 days. Ido not find that the libelant was prompted by malice in commencing this suit. Its officers and legal advisers may have honestly entertained the belief that sufficient ground for the proceeding existed; but certainly, as the commencement of proceedings was delayed until after the ship was loaded, and the bills of lading were duly signed and delivered, the case was managed so as to force the vessel either to compromise, and pay an unjust claim, or suffer the greatest possible inconvenience and loss by being delayed while resisting the demand; and, as the court finds that the libel'tnt had no cause of action, it· follows that the arrest and detention of the shipw9s .wrongful, and the owner suffered a serious pecuniary loss. But for this he is without remedy, for in proceedings in rem the allowance of process is the act oithe law, so that no damages are allowed for the arrest and detention of the vessel unless there is bad faith or deceit practiced in suing out the writ, or the suit one that may be characterize{) as·a malicious prosecution. Hen. Adm. p. 337; The Adolph, 5 Fed. Rep. 114; Ke:mp v. Brown, 43 Fed. Rep. 391.. TheexpenBes of the litigation have not been to any appreciable amount increased by reason of the cross-libel beyond what was necessary in resisting the libelant's demand. But for the original suit, it is not probable that any expense or trouble woultl have been' caused by the crosslibelant;· therefore, no costs will be awarded against him. Findings in accordance with this opinion may be prepared, and a decree dismissing the libel.· with costs, and also dismissing the cross-libel, will be entered.
EARNMOOR
S. S. Co.
'II.
UNION INs. Co. 28,1890.)
SAME v. CALIFORNIA INS. Co. (Dfstrlct Oourt, S. D. New York.
1.
MARTNB INBURANOIl-ORDlNARY
In an action on a. marine insurance policy containing no eX<1eptipn for lOlllles occasioned by·want Of ordinary care, b.ut covering perils of the sea and "all other perils * ." * tbatha...e or shall come to the hurt ** *of the said ship, ordinary of the s"'ip's master Is no defense. RULES-GENERAL AVERAGE.
S.
Rule 5 of the !York·Antwerp rules, whlob provides that,when a ship is intentl1>n. ally run she is sinking, 11-0 4amage caused "bY,such liltentionally running .on shore shall be made good as general average, has no to an action on' a· marine pOlicy which proVides that·general average 'shall be payable according to Yprk-A,ntwerp rules, where the sblp was run ashore after she was beginnins to alnk, to prevent further loss, and no further damage was oaUHd thereby.· : . . ,..