ALLEN v.'il,18ILBUI:lJlELS Of POTATO;ES.
drawing and description are a drawing and description of the exist· ing aocumulators employed to obviate a difficulty similar in all respects .the difficulty pointed out in the early part of thespeoifi.:' cation. It in the drawing and the description th'e weights are placed below instead of above the piston, but nothing is 'said to indicate that any part of the machb;te is 'old; qrthat, the inven.tion of the patentee relates to the locality of theweights. There is an entire absence of language from the claim, specification, and drawing from which it can be gathered that the invention sought to be secured re1ates to any particular part of'the machine described. The patent, therefore,if valid at all, would secure the whole mechanism in it, $nd would exclude the public from the right to use So form of accumulator admitted to have been in common use prior to the date of the alleged invention. Such a patent oannotbe upheld. The bill is therefore dismissed, with costs. i
ALLEN V. THREE THOUSAND ONE HUNDRED UfD EIGilTy.THRElll BUSHELS OF POTATOES.
(District Court, E. D. New York, 1.
June 13,1881.)
AFlI'REIGHTMEltT-TRANSHIPMENT OF CARGo-LIEN-DUTIES.
Where a vessel with a cargo of potatoes from the British provinces went ashore on the coast of Maine, and the master, under telegraphic orderB:from the shippers and consignees, sold the cargo at auction, and part ot it was at once shipped in another vessel to Boston, the purchasers paying tlleduties; and subsequently, and Lefore all the potatoes were delivered, the master, under advice of the. agent of the insurers of the cargo, broke off the trade, got the potatoes that had gone forward brought back, refunded the amount paid at auction and the duties paid, and reshipped all the sound part of the cargo in another veBBel to New York, under a fresh bill of lading, for delivery to the {)J:iginal consignees there, and afterwards brought suit to recover freight and demurrage under the original bill of lading, and the amount of duties paid: Held, that the (;ontract of affreightment was ended by the acts of the master in selling the cargo in )iaine, and that he had no lien upon the potatocs transported to New York for the freight and demurrage provided for in the first bill of lading, nor for the sums he had refunded to the purchasers in Maine for duties paid.
Scudder d; Om'ter, for libellant. McDaniel, Lummis x Souther, for respondents. BENEDICT, D. J. This action is brought enforce a lien whic:b, the libellant claims to have upon a cargo of potatoes. The following facts appea:r:
764 The potatoes proceeded ag-ainstare part of a cargo originally shipped by C. A. Harrington & Co. at ,Port William, Nova Scotia, in the schooner 1\1. G. Porter, of which vessel the libellant was master, to be transported therein to the port of New York, and there de,livered to Perkins &; Job, they paying freight on delivery, the lump sum of $875. .A. bill of lading in the ordinary form, dated November 29,1877, Was signed by the libellant. The schooner sailed from Port William for New York, January 2, 1878.' In the course of the voyage she met with a storm, and was stranded at Horman's cove, in the town of Brooklyn, in the state of·Maine. The injuries caused to the veils81 by the stranding were such as to render it impossible for her to continue the voyage. The potatoes were also thoroughly wet, and, as the weather was extremely cold, there was immediate danger of their total master of the Porter at once, and. by telegraph, informed the shippers and consignees of the cargo in regard to his situation. In reply, the shippm'stel;' egraphed to him to sell the cargo te, best advantage of underwriters, amLthe consignees telegraphed him; "Lo!>lS must amount to 50 cent. of entire cargo to recover from underwriters. Act for best interest ,of I\Il concerned. }'orward us protest and any proceeds soon as possible." Thereupon the master called a·survey upon the cargo, and then sold it at pnblic auction, as it lay in the vessel and subject to duties, for the sum of $200. The buyers at once took possession of the potatoes and entered them at the custom-house, paying tbeduties thereon.. The. buyers loaded partof the pQtatoes in schooner We're Here, and her to Boston. The rEmiainder they commenced to cart over the fields to cellars to escape the frost, and some they stored in lighters. By the time the greater portion of the cargo had been removed from the vessel the agent of the Boston Marine, Insurance Company, a corporation Which had insured the cargo and the freight, appeared at the vessel, and the weathetmeanwhile hadbecomenlild. The master of the Porter, uponrepreof the undel'writer's agent that the potatoes sHould have-been transhipped, then made an arrangement with the buyer of the potatbes'Ior a return of them to him. In accordance with this arrangement, thl;l that had been stored in cellars and in lighters were delivered back to tile master of the Porter.. The We're Here, which had arrived at Bostoll.aftl:Jr a voyage of a week or 10 days, was ord.ered back, and upon her return her cargo was also delivered to the master of the Porter, who thereupon paid .to the buyer of the potatoes money equal in amount to that paid for them at the auction sale, together with the amount the buyer had paid at the custom-house for duties on the potatoes, and the additional sum of $200 for the expenses of the voyage of the We're Rere to Boston and back. The sound portion of the potatoes, amounting to some 3,183 bushels, were then shipped by the master of the Porter, in his own name, on board the schooner AlteviIia, to be transported therein under an ordinary bill of lading to the port of New York, and there delivered to Perkins & Job on their paying the sum of $500 freight. The .A.ltevilia in due time arrived in the port of New York, with the potatoes on board, and they were there received by Perkins &; Job, who paid the $500 freight provided for in the bill of lading of the Altevilia, and sold the potatoes, applying the net proceeds to the credit of C. Harrington & Co., the orig-
A.LLEN
v.
3,183 BVSHELS OF POTA.TOES.
165
inal shippers, to whom they had made advances upon the faith of the bill of lading of the Porter. It was understood that the receipt of the potatoes by Perkins & Job should not prejudice their rights, and that the delivery of the potatoes to them should not affect any lien to which the potatoes might be subject. This action was then commenced by the master of' the Porter to enforce a lien which he claimed to have upon the potatoes. .
The libel does not clearly show the precise claim of the libellant is i but plainly the action does not proceed upon the ground that there is any claim for pro rata freight. The demand, as stated upon the argument,. is for the difference between the $500 freight paid the Altevilia and the freight provided for in the bill of lading of, the Porter, $40 for 10 days' detention of the Porter at the port of'lading, together with the sum of $488.18 paid by the libellant for duties.on the potatoes in the state of Maine. Two questions have been'in this way presented for determination, namely: Did the master of the Porter have a lien upon the potatoes transported to New York by the Altevilia for the freight and demurrage provided for in the bill of lading of the Porter? and, secondly, did the master of the Porter have a lien upon the potatoes transported by the Altevilia for duties upon the potatoes paid by him in the state of Maine? Upon both these questions my opinion is adverse' to the libellant·. When the Porter stranded on the coast of Maine -the circumstances were such as to justify the. master in selling the potatoes. He did sell. them at public auction, and the, fairness of the transaction has not beenques;tioned. The sale was completed, and the potatoes were delivered to the buyers,who. entered them at the custom-house and paid the duties due upon such entry. That sale terminated the existing contract of affreightment. After the potatoes had been thus sold and entered at the custom-house it was not within the power of the'tntl,ster to revive the original contract, and by regaining possession c>fthe potatoes, and shipping them upon the Altevilia, to entitle himself to claim the freight agreed to be paid upon the delivery of her cargo by the Porter. No legal transhipment of cargo was effected. When the potatoes were shipped on board the Altevilia the relation between the master of the Porter and the potatoes, created by the shipment on the Porter, no longer existed. The potatoes were no longer the cargo of the Porter. They had not only passed from the possession of the master of the Porter, but their character had been changed by an entry at the custom-house. They had become imported goods, subjected to new relations, and perhaps to new liabilities. A llew
766
FEDERAL REPORTER.
value had been given to them by the payment of the duties. over, they had in part been sU'biected to land transpOrtation, and 'i" part had been subjected to the risk of a new and different vo;yage, yiz., to Boston. All tb.e dealings of the master with, the potatoes 'from the time of the stranding up to, I may say, the com;mflncement of this suit, were inconsistent with the idea of a transhipment of his cargo for the purpose of .earning the freight provided for by: the bill of lading of the Porter. If a case may be imagined where the sale·of a cargo, by the master, in good faith and under oircumstances of justification, might be rescinded by the master for the purpose of effecting a transhipment of cargo, this is no such case. Here it was impossible for the master to restore matters to their former condition. l3y virtue of the authority conferred upon him by the ciroumstances, the master became empowered to sell the potatoes, and the power had been exercised. He had. thereafter no power to buy them again for acoount of the oonsignees, nor any power to pay back duties oil account of the oonsignees, nor, indeed, any power over them as agent of the consignees, and.hehad, by his own aots, lost the right to earn his freight by means of a transhipment. So he himself seems to have believed, for he made a new shipment of the potatoes on the Altevilia by a new bill of lading, which provided for a delivery on payment of a new freight, viz., $500. There is in the libel an averment that the insertion of the sum of $500, as freight, in the bill of lading of the Altevilia, was by mistake; but of this there is no proof. It is my opinion, therefore, that the potatoes in question, when received by Perkins & Job, were not subject to any lien for the freight and demurrage provided for in the bill of lading of the Porter. The claim for duties is more untenable. In point of fact, the master of the Porter paid no duties on his cargo. What he did was to pay to the parties who had bought the potatoes, subject to duties, the sum they'had paid for duties. I am unable to see any ground upon which to charge these potatoes with a lien for moneys paid without any authority from the freighters for such a purpose. As already stated, neither by the libel nor upon the argument has the question of the liability of the potatoes for pro rata freight-distance freight, as it is sometimes called-been presented. In cases where complete performance of a contract of affreightment has been reno dered substantially impracticable, and benefit has accrued to the freighter by part performance of the contract, courts of admiralty do sometimes administer a larger equity than is permitted to courts of
THE CLA.TSOP calEF;
law; but this caBe,as preserited, does not call' npon the CClurttoexei !lIny Buoh power in behalf of the libellant. See Metcalfe v. Bri" Works,L. R. D. 176. ' The view already'expressed renders it unneceBsaryto consider the seriolls, question presented by the' fact that the qnantityof 'by the bill of lading of the Porter to have been shipped on vessel w.as-never shipped or, delivered to the master for purpose of shipment, and by the act of the master,- signing a bill,of lading known by hini to be false, Perkins'&J6b'hiid beeu indq.ced to advance money to C. H. Harrington & Oo;npon insufficient ', ', J;Uuat be ,a: decree dismissing the libel, and with costs.!
in
'j ..
THE CLATSOP CHIEF.
(District Court,
1); Oregon.
September 8, 1881,)
: - ,:rh.eremep.y, gIven by section 4493 for an injury to ap. employe on a steamvessel is merely cumulative, and does not exclude the right to any other relIledy , for such ihjury which may be given by the general admiralty , ."'
Dell and W.Scott Bebee, for libellant. . 'D. P. Kennedy, for the owner, and claimant. ... " DEADY, J. On August 9, 1881, the opinion was delivered in this case to the effect that the libellant, Emma Kay, could not, under admiralty rule 15, maintain a proceeding in 1'em and in personam in one libel for damages for thE! deMh of ,her husband by a collision, as jireman on the ofIending,v(ilssel-thEl Qlatsop Chief. while It was also then suggested whether the libellant could maintain a suit in rem at all, in view' of the ruling' of Chief Justice Chase in' The H£ghland Light, (Chase's Dec. 151,) in'\Vhich it was held that by section 30 of the steam-boat act of 1852, (10 St. 72,) since become' section 43 of the act of 1874, (16 St. 445,) and now section 44.93 l?f the Revised -Statutes, such remedy, in the case of' an injury caused by a neglect to comply with the law governing 'the navigation of st'lam-vessels, 'was confined to passengers, and that persona mere(y employed thereon were limited to the remedy in personam for such injuries. Upon further argument and reflection I better conclusion is that the provisions in section 4493 of the ':Revised Statutes, concerning remedies, are only cumulative, and therefore do not take away or exclude any right to a proceeding in rem for an :).
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