FEDEllALREPORTER,

vol. 87.

CR;mNSHAWE 'l1. PKARCE.

(Di8trict Court, 8. D.

York. January 12, 1889.)

SJlIPPING-LUBILITY Oll' OWNER FOR CONTRACT-BILLS Oll' LAnmG-MrsTAXB'J AGENT'S OPTION.

U.. the commoD ap;ent of several different steamships, owned by different owners, and running' independently upon stated days, forming the "Guion Line. "agreed with libelants to transport about 800 bales of cotton per steamer ; A.a:;: W., agent's option. A part were sent by tbe A., the rest by the W., a week later. U. only had authority to determinEl,by which vessel "and or" gQods should go, Without his knowledge or assent, shipping receipts were delivered to libelants, through. some mistake of the subemployes. apparently induced in part by the libelants' slips. The receipts stated that the goods were to go by the A: onl),,; upon the faith of which, without U.'s knowledge, J:liUs of lading were at bis office, for all the cotton per steamer A. Tbe cotton shipped by the W, arrived about 10 days later than that by the A., and, the price falling in 'the mean time, the libelants sued the respondent, who is sole ownefpftheA.. for the, loss. Held (1) the original contract was the agElnt's and did not J>ind eitber the vessel or ber owners; (2) the different vessels apd own'ers'liere not liable for each other's contracts; (3) 'the shipping receipts and billeof lading per A. only. being issued by mistake, and wjtbout,U.',s knowle(lge or authority, did not constitute any exercise of the option reserved intheoriginal contract, and did not bind the respondent. as respects tbo goods carried ',by the W.; (4) tbat tbe W.'s goods had never been delivered to the A.; or under her control; and that the respondents were Dot liable.

In Admiralty., , Action upon three ,bills of lading for failure to transport 559 bales cotton by steamer Arizona. ' jj}vart8,Choate &- Bea'TMn, for libelants. Wilcox, Adums&Macklin, for respondent.

ot

848 bales otcotton on board the steam-ship Arizona, for Liverpool, dated August 31st, September 1st, and September2d." She sailed on Tuesday, September 6tq. Only' 289 bales went by the Arizona. The re559 bales were, carried by ,the Wisconsin, of the same line, wJ#ch left A-week later, and arri.ve4 in Liverpool about 10 days after the ".Arizona. , .Ouringthisintervnl there was a fall of three:-eighths of a penny ',ver pound in the market price of cotton, to recover which this libel was '1iled., , 'The evidence shows that the 24th and 26th of August preceding, tl;\Vri,ttencontracts made the libelants and the representatives ofIJl1derhill&Co., whereby transportation was engaged for "about 800 bales of cotton on of the ,Guion line, expected sailing the 6th aonrd 13th September, agent's option, subject to the terms and conditions of the form of the bill of lading approved by the New York Produce Exchange;" and that the bales in question were sent by the

BROWN, J. in September, 1887, received from UnderhHI & CQ., in this,oity, three bills of lading, reciting the shipment of

on

·CRENSHAWE 1.7. PEARCE·.

433

libelants to the Guion line under these contracts. The "Guion Line" is a mere trade-name. The vessels that form the "line," and run on stated days, belong to different owners. They are run independently; the aecounts are distinctj the owners of one vessel are not interested in, or liable for, the business of the vessels of the other owners. The respondent was sole owner of the Arizona, and had no interests in the other vessels of the "line." The Arizona was advertised to sail on Septemher 6th; the Wisconsin, September 13th. A permit or order was issued, as customary, by Underhill & Co. for the receipt of the cotton by the line. The permit was delivered to the libelants about the 25th of August, and specified the steam-ship"Arizona and or Wisconsin, about 800 bales cotton; uncompressed, to Empire Storesj to be delivered on or after August 30th." Under this permit the cotton was all delivered by the libelants, either to toe Empire press, or at the Guion. pier. Two hundred and'J}ineteen bales were delivered to the press,and from there were se11t to the. Arizona, and carried by that vessel. The rest of the cotton was seJ}t to the Guion pier. When the permit provides for an option in transpqrtation, by one 01' more steamers, as in this case, the shipping receipt given at the dock or press, for each lot delivered under such a permit, is required to be in same form and to specify the names of both steamersj and the bills of lading, which in the usual course of business are obtained at Underhill & Qo. 's office in exchange for the shipping receipts, are also o,f course, in the same form. . In the present case seven lots were delivered at the dock or press, under the, permit; but all the shipping receipts that the libelants received therefor mentioned the ship Arjzona only. The .evidence shows that this was done without. the knowledge or authority of Mr. Underhill, the only person authorized to deternllne by which vessel the goods should go. It was the result of m«;:lre .mistake, or misinformation, or misunderstanding, in the absence of instructions from Underhill & Co.j and it was apparently, in.part at least,brought about by the libelauts themselves. A great number .ofthe or lighter-men along libelants' "slips," sent to the line by the with the goods, were produced in evidence. and all except one state that the g()ods were to go by the Arizona. The libelants had no right to send with the goods slips thus wo\'ded. They should have read "Ariwna Wisconsin." Although the subagents at the dock or at the press had also .no right to act upon the libelants' slips alone, such slips were calculated to mislead. and they no doubt conduced to the mistake in the . shipping receipts, if they did not alone cause it. The option reserved to Underhill & Co. to send goods by the one steamer or the other, was an option beneficial to both partiesj to the ship, because it enabled her to take higher priced freights for perishable goods that might be brought forward for transportation on the last day; or, if these were wanting,tQ fill up with the lower priced cotton. It was beneficial to the libelant, because the ship could afford to take the cotton at a lower freight, in view of the option reserved as to the time of forwarding. v.37F.no.9-28

J'EDERAL RlilPORTER,

vol. 87.

The bills of Jading are not, as the 'libelants contend, the only contracts between the parties. Even if theyha.d been regularly itisued, they would only have been in execution of the previous contracts of affreightment, which provided that bills of lading should be given. The bills of lading stand in the same relation to the original contracts ofaffreightment that bills of lading hold to the charter-parties under which they have been given. In the latter class of cases it has been long settled, not only that the bills of lading do not supersede the provisions of the charterparty in so far as they differ from it, but that they are controlled by the charter-party, in the absence of any proof of authority and intention to make a new contract. 1 Pars. Adm: 286; The Chadwicke, 29 Fed: Rep. 524, and cases there cited; Ardan v. Theband, 35 Fed. Rep. 620. By those contracts Mr. Underhill had the right to send the cotton by either the Arizona or the Wisconsin, or in part by both. as was done. There Was no intent by either party to make any new contract. There was donbtle!ls an option to be exercised before the goods could be forwarded. But Mr. Underhill was the only person having authority to exercise this option. The bills of lading are prima facie evidence that he did exercise tbat option In favor of sending all thecotton by the Ariz<2na; but they are only pt'imajacie evidence. The a.nswer sets up that they were issued by mistake; and without Mr. Underhill's knowledge or authority; and the probf establishes that fact, both as to the shipping receipts and as to the' bills Of lading, which followed the shipping receipts, as a matter of course. Pa:pers thus issued by· mistake constituted no exercise of the optioD ieserved to Mr. Underhill; nor any new contract, for want of the necessary assent. When the shipping'receipts were presented by the libelant a.t'Underhill & Co. 's office to be exchanged for the bills oflading per Arizona,Mr. Underhill, 01' the clerks, might lawfully have refused to issue the bills of lading for the Arizona only; and the evidence leaves no room to doubt that they would have done s6 had either ofthem known that the 'shipping receipts had been improperly issued per Arizona only. Fowler v. Liverpool, 87 N. Y. 190. The shipper is entitled to no advantage from such a mistake. The libelants' claim rests entirely on their possession of the bills of lading, stating the transportation to be by the Arizona alone, as though the delivery of the bills of lading to them were a final and absolute determination of the option previously reserved, and formed, from the moment of delivery, the only contract between the pllirties. Even had the billso! lading been deliberately issued by Mr. Underhill himself, it may be doubted whether they Would necessarily have had any such effect. Uhtil the libelants had acted upon the faith ofsuch bills of lad'ing, and changed their rights or obligations, I see no reason why a previous determination to send by the Arizona might not have been re,voked· under, the option in the original' contracts. Notice· of any such revocation would perhaps have been necessary for protection against any subsequent 'claim by the shipper for damages incurred upon the faith of ,the bills of lading; but, so far as I perceive, for no other purpose. In this case the libelants in no way changed their situation upon the faith

:()REr>SRA:WE V. PEARCE.,

435

of thebill!l of lading. The gQ9dFl all/lrrived safely, and in exact fulfillmen,t of the original contracts; I'md the lacJr of notice to the libelants that part went by the Wisconsin became immaterial. That question, however, is not presented in this case, because there is no doubt, upon the evidence, that the shipping receipts and bills of lading were not properly issued, and were not any exercise of the option reserved. upon the evidence, Underhill & Co. had no authority to bind the respondent upon contracts of affreightment for transportation by any other ,!,e8sel,than the Arizona. The original contracts, therefore" were the obligations of Underhill & Co. only, and did not bind the respondent. 'Pnder such a contract, the respondent could not become bound until the goods were delivered to the Arizona or her officers" or some other act was done amounting to a final appropriation of the goods to the Arizona, or which imported a contract to transport the goods per Arizona alone. Only Mr. Underhill had authority to make any such appropriation, or any such contract; and, as respects the 559 bales in made any such appropriation or contract. He did not exercis,e any such option, nor authorize the bills of lading or the shipping receipts in the form in which they were.issued. Still further, bills of lading, as executory contracts, have not the feet which the libelants ascribe to them. They import a receipt on board of certain goods, to be transported and delivered at the place of destination. The executory contract to transport extends only to the goods actually received on board, or within control of the officers of the ship or her representatives; and parol evidence is ar,lmissible to show that only part or none at allofthOse receipted for in the bill of lading were received, and the contract to convey is thereupon limited accordingly. In PoUard v. VintOn, 105 U. S. 8,-an action in personam,-Mr. Justice MILLER says:· "The receipt of the lies at the foundation of the contract to carry and deliver. If no goods are actually received, there can be no v:;llid.contract to carry or to deliver." Accordingly, it is the constant practice for the ship or her owners to limit their apparent responsibility under the bill of by proof that less were receiveJ. 1 Pars. ,Adm. 190; Carv. Carr. by Sea, § 69; Goodrichv-. Norris, Abb. Adm. 196; The Sarago88a, 2 Bell. 544; Sean v. Wingate, 3 Allen, 103, and cases dted; Querini Btamphalia, 19 Fed. Rep: 123; Robinflon v. Railroad (h., 9 Fed. Rep.HO, 16 Fed. Rep. 57. There is mani festly no difference, as respects liability, between an action for not delivering the goods specified in the bill of lading, and an action for for not carrying the sl1me goods. The contract in the bill of lading is the bAsis of both actions alike; and that contract is limited to the goods actually delivered to the ship, or to her repret:\entative, under it.. Had Underhill bpen the of the Arizona only ,a delivery of goods to him at the dock, under a previous contract, on the respondent's account to transport them by that ship alone, would probably be deemed $ delivery to the ship,and binding on her owner. But ,as hewtls the common agent of all the ships of the line, and had neither made any contract for the Arizona alone, nor appropriated the 559 bales to the ArizQlla, .those bales were never deFvered to t4eAri-

488

FEDERAL REPORTEn, vol.

87.

zona, either actually or constructivelYi and as to those bales, the bills of lading, which Underhill had authorized, had no force or validity as receipts or as contracts, as' against the ship or her owner. The p.resent case very closely resembles that of The Lady Franklin, 8 Wall. 325, where a common agent of several independent vessels form· iug a "line," as in this case, agreed to send the libelants' goods by "one of the vessels of the line," and did sOi but a clerk, by mistake, and in ignorance of the facts, delivered sbill of lading as upon a shipment by another vessel of the line,-the Lady Franklin,-which was accordingly sued. That case was stronger for the libelant than the present, as most of the goods shipped on one of the other vessels were lost. Mr. Justice DAVIS, in delivering the opinion of the court, says: "It would be strange indeed, if the owners of the Franklin were made to suffer because the common agent of' all the boats had, through inadvertence, given a receipt for merchandise not on the boat., or irithe wareho;useeven, but which was then on board other boats, on its ,way. toiLs·destinatiou. ,,' .The case of Pollard v. Vinton, supra, shows that the same' rule is ap" plicable to actions in personam. On principle and,' authority the libel must be dismissed, with costs.

THE

SERAPIB.1·

SALMON .". THE SERAPiSet.

az. .

ts89.)

LIABILITY-PARTIES--

(Di8trict Oourt, 8. D. New York. JanuarY 9,

t.

BmPPING- BOTTOMRY - MASTER'S ADlIIRALTY RULE 18.

So

. . '.. A master's draft was drawn in the following form: "On ar,rival at port ot destination I promise and bind myself to pay, .* * *foi the payment of which I hereby pledge my vessel. This is my obligation, which settles definitely every accounts with the charterer, and I have signed tbis. in settlement and fulfillment of the obligatioDscontracfed by my owners,H. Bros. & Co., with the charter-party, and I give this bill in their name, account, and ord.er.. and. acting as their empowered .re.preseut.aUve. .A.nr other Oblfg.ation or draft drawn by me to be secondary to this. [Signed G. D., Master of steam-ship S." In an action orought by an indorsee of-the draft against the ship and master upon the draft only, held, that· the draft did' not purport to of both was improP-llr. undet bind the master personally, andthat the admiralty rule 1 8 . ' . .. . .
' .' , .

SAllE-NEGOTIABILITY.

"

Such an instrument is only q1las! negotiable. and is subject to all eqnities as respects. tbe ship. When give:n in settlement of differences of freight, witllOut.authority, it creates no lien on the ship; and, as it does not purport to bind 'the master personaUy. no suit against him lies on the histrument itself, but only against him "as a wrong-doer·, "under rule 18, upon his, false representation or implied warranty; and where the Payee has knowledge.of and the indorsee easy means of knowledge semble. proof of his all the bona .fide purchase of the draft, without notice of is requisite to en· ·able him; to set up any estoppels against the masterappearingon·U1edraft itself.

1

Reported by-Edward G. BeneJict, Esq., oftlieNew York bar.

THE SERAPIS.

437

8. SAME-CHARTER·PARTT:.....cJESSlllB OLAU8111-BBTTLlIlHlllNT-ERROBB.

The cesser of liability clause in a charter, "all claims on charterertoc881eafter settlement between the master and the charterer, will not prevent the correction of errors in the settlement itself.

4.

SAME-COMPUTATION 0l1' FREIGHTS-FOREIGN WEIGHTS-LEX SOLUTIONIS.

The Italian mode of turnin/r cantars into pounds being different from the New York mode. and the bill of lading making the frei/!;ht payable in New York, on the number of "cwt. delivered," held, the rule in force here must govern. Answers to interrogatories annexed to the pleadings stand. as evidence, like the pleading's only, What is admitted, needs no further proof; but as respects matters that still remain at issue, answers to interrogatories are not affirmative evidence in favor of the party making them.

5.

AnMIRALTY- PRACTICE-ANsWERS TO INTERROGATORmS-EVIDENCE.

6.

SAME-COSTS-CLERK'S AND MARSHAL'S FEES-TENDER.

Upon deposit of money as a tender in the registry of the court, the clerk's and marshal's statutory fees payable thereon must be also added and paid by thedepllsitor, in order to make the tender good. if the tender and deposit are first made after suit brought; otherwise, if the deposit is only in support of a sufficient legal tender made before suit brought. In the former case the tender will be held available only for the deposit less the clerk's and mar· shal's -charges.

In Admiralty. Libel by an indorsee of a master's draft against the vessel and the master personally to enforce payment of the draft. Butler, StWman &: Hubbard and W. Mynderae, for libelants. _ E. B.Gon,verse, for respondents. BROWN, JThe libel in this case was filed against the British sreamship Serapis, and George Dobson, her master, to reeover £545.18.7, the amount of an obligation drawn by the master at Palermo, February 11, 1888,payable to the order of the charterer, Pietro Tassi, on -arrival of the steamer at New York, pledging the ship for payment, and indorsedto the libelant. The obligation was a brief form of bottomry, given in settlement of differences between the charter money owing by Tassi for the hire of the vessel and the freight to be collected by the steamer upon the bills of lading on arrival at New York; for goods shipped on board at Palermo, the last port of loading. The fortn of the master's obligation, and provisions of the charter, so far as they relate to this subject, are identical with those in the recent case of The Lykus, 36 Fed. Rep. 919, except as to names, dates, and amounts. - Before and onarrival of the steamer at New York it was found that various errors had been made in fixing the amount of the bill, to-wit: (I) Error in addition by the master, · · £100. 0.0 (2) Erroneous allowance of insurance, · _ _ _ 9.12.0 (3) Difference betwepn bill of lading given by the- master to the charterer for fruit, and certain sub-bills of lading. issued by the chal'terer to the ,owners of the fruit, 19. _9.5 {4) Shortage of freight collectible on 5,200 cantars of ore, through the different modes of converting c8ntars into pounds at Palermo and New York, li.11.7 {5) One bill of lading omitted, , 12.8.6 Total; ·£153. 1.6

FEDERAL ,REroRTER,

vol. 31.

The first four items would'brso much reduce theship'sdebt;tbelast would increase it. Thethird.itetn (excepting 18/4, accouI).ted for)was returned by TaSsi to the defendantS by. his draft, which was received by them, but has not been paid, and was offered to be returned for the first time upon the trial. If all the above corrections were made, the bill would be reduced by £128..4.5, leaving due £417.14.2, amounting to $2,037.30. This sum, with interest and costs, the owners of the vessel paid into court soon after the commencement of the suit. . The litigation is as to the residue only of £128.4.5. 1. As again,st the ship, the libelant cannot recover, because, as in the case of The Lykus, supra, the master had no authority, either under the maritime law or under the terms of the charter, to execute bottomry, or any expl'pss hypothecation of the ,ship, for differences in freights in favor of the charterer, or for his advances of charter money. As regards any express lien, the obligatiop. is, therefore, invalid; and if any implied lien arises against the ship for the fulfillment of her charter obligation to pay any differences in freight to the charterer, such an implied lien does not extend beyond what the ship actually owed. The indorsee stands in this regard in no better position than the payee; so that any mistakes in ascertaining the amount owing by the ship must be corrected in the' ship's favor. This is not contested in this case. Although by the Codes of France (section 313) and of Italy (section 592) bottomry bills payable to order have the full qualities of negotiable paper, s$ving defects of assent or authority, (3 Valroger, Droit Mar. § 1013; 5 Desjardins, Droit Mar. § 1148, p.187;2 Laurin. Crespo 251, note 40,) I understand our law to be otherwise. Such instruments, being payable only on a condition, are not fully like promissury bills of Jading, Qnly quasi negotinotes and bills of exchange; but, able; and, except in cases lIubject to the principles of equitable estoppel, the indorsee takes only the payee's rights;i. subject to any equities affecting the obligation itself,though not, perhaps, subject to wholly independent offsets available against the payee, (Shaw V. RaUroad Co., 101 U. S. 557;) and any errors, imposition, or sharp practice in bottomry obligations are freely corrected by our courts of admiralty. Nttnez v. Dautel, 19 Wall. 560; Ths Virgin, 8 Pet. 538; The Woodland, 104 U. S. 180; The Catherine, 3 Wm. Rob, 1, 5; The Osmanli, Id. 198; The Prince of Saxe-COQth&I'g, 3 Hagg. Adm. 387.394, affirmed, 3 Moore, P. C. 1, 10; Ths Zodiac, 1 Hagg. Adm. 320. 327, 332; The Oognac, 2 Hagg. Adm. 378; Ths Packet, 3 Mason, 260; Coolidge V. Ruggles, 15 Mass. 387; The Aichtn:, 15 Fed. Rep. 276, 282, 23 Fed. Rep. 352; The L7JkU8, mpra.See, also, German Code, art. 687; Wendt, Mar. Leg. (3d Ed.) 730; The Neth. . erlands Code, § 573. 2. The cesser of liability clause in the charter, "after such settlement all claims onch,arterers to does not prevent the correction of errors .in ,the settlement itself, as between the shjp and Tassi-(l) Because tMparties are presQ-med to have meant by that clause a true and proper settlement, not a false or erroneous one. On an account stated, upon a. settlement, errors or mistakes, clearly proved,are corrected ll$of course.

e.,

,;

THE SERAPIS.

439

Perkinsv. Hart, 11 Wheat, '256; Wiggins v. Burkham, 10 Wall. 129. (2) Because the parties have treated the settlement as provisional only, as in Eisenlutuer v. De Belaunzaran, 26 Fed. Rep. 784,790. Both sides, be fore this litigation began, made proffers for the proper correction of some of these errors. (3) Because the defense here does not come within the letter of the cesser clause as a "claim made'upon the charterer." It is a resistance against payment to the charterer, or his indorsee, of a larger sum, t4an was due them. The charter does not say that the captain's ,"settlement" shall be final and conclusive as to the amount owing by the ship, or as to the amount of the charterer's claim on the ship, so as to preclude any subsequent correction of mistakes. I do not think any ,such. thing was intended by the cesser clause. The common practice undetit confirms this view. If the parties meant that such should be conclusive for all purposes on ship and owners, that should at least have been stated. Such a construction is too prejudicial to jus tice, and too liable to abuse, to be supplied by implication merely; The history of such clauses in charter-parties, moreover,shows that they were originally designed to relieve charterers or agents, abroad, from future responsibilities for the voyage; as in the freights, or the tention ofthe ship, over neither of which could they exercise any control or supervision. Macl. Shipp. 356-359; Christoffer8&n v. Hans&n, L. R. 7 Q. B. 509;, .fl'ench v. Gerber, L. R. 1 C. P. Div. 737,744, L. R. 2C. P. Div; 247, 253. 3; The item of £11.11.7, shortage on freight, arises through the dirferentmodes of turning Italian cantars into English pounds. The bill of lading made the freight payable "on arrival in New York at the !'Ute of 11/9 sterling per ton of 20 cwt. delivered in fnlt" In the "settlement"atPalermo, the cantars, by the Italian reckoning, amounted to 1,371 tons; by the New York mode of reckoning; the same number 'of cantars made only 1,352tons. But as the freight was payable in New York on the number of "cwts. delivered," the rule of computation in force here must govern. ' All the corrections claimed must therefore have been allowed, if this action had been brought by Tassi; and the libelant, as indorsee, can claim no greater lien against the ship than Tassi could have claimed. . 4:A$ against the master, it is contended that he is equitably estopped from.disp'Utinghis liability for the full amount of the hill to a bcrnaftde indorsee,by the false representation that the bill was given lIfor necessary last disbursements, as weH as for differences in freight!» and that he htro"signed it in settlement and fulfillment of the obligations conby his owners, McIntyre Bros. & Co., London, with the charterers." . But if this instrutnentis not the personal obligation of the master, the proper remedy for the false representation, or implied warranty of authority,· :would be by an action on the case for damages for such false representation and warranty; not like this, upon the bill itself. 1 Pars. 69; Richarf180n v. Williamsvn,L. R. 6.Q. R276, 278; Simmons v. M()'(fe, 100 N.·Y. 140, 2 N. E. Rep. 640; BaUun v. Nicolay, 53N;,Y.:467;,Such an l!-ction'could not properly be conjoined with a
4

4

440

FEDERAL REPORTER, vol.

37.

suit ,on rem against the ship. Admiralty rule 18. But, dismissing the libel as against the ship, the suit might be retained against the master on the allegations of the libel, if this obligation purports to bind him; and, in that case, he would be concluded by any estoppels that might be found on the face of the paper. The language of the bill is as follows: "pn arrival at the port of destination I promise and bind myself to pay to the order of Pietro Tassi, £545.18.7 in cash, or approved bankers' demand bills on London, ** * for the payment of which I hereby pledge my vessel. This is my obligation, which settles definitely every [all] accounts with the c.harterer, and I have signed this ill settlement and fulfillment of the obligations contracted by my owners, McIntyre Bros. & Co., with the charter-party, and I give this bill on their name, account, and order. and acting as their empowered representative. Any other obligation or draft by me drawn to be secondary to this. GEORGE DOBSON, Master S. S. Serapis." The bill is a printed form with names, dates, and amounts filled in. Taking this language all together, I do not think it was designed or understood to create any personal obligation of the master. Aside from the considerations applicable to it as a bottomry obligation, and regarding it as an ordinary commoercial contract, signed by an agent, though the cases bearing on the question Ilre not free from some conflict, the weight of authority, I think, is to the effect that, where the instrument is made by a known agent, is signed in that capacity only, discloses the principal, and clearly indicates that it is given in the principal's business, and on his account, it will be construed as the obligation of the principal, and not of the agent. The use of sllch words as "I promise," or "we bind ourselves," etc., are construed as used in the official or representative char, 8cter only, not binding the agent personally. Fallc v. Moebs, 127 U. S. 597, 8 Sup. Ct. 13.19; Smith v. jtlorse, 9 Wall. 76, 82; Metcalf v. · Williams, 104 U. S. 93, 97; Rice v. Gave, 22 Pick. 158; Goodenough v. Tha,yer, 132 Mass. 152; Alexander v. Sizer, L. R. 4 Exch. 102; Gadd v. Houghten, L. R. 1 Exch. Div. 361; Lindus v. Melrose, 2 Hurl. & N. Story,Ag. §§ 154, 271; 1 Pars.Cont. (7th Ed.) *57, note; 1 Pars. Notes ,&B. 98, 99; Evans, Print & Ag. (2d Ed.) 226, 246, 248. o This obligation states expressly that it was given "on account and by · order of the owners," and in the master's "representative capacity." No · tttronger declaration of its representative character could be made. The charter uses similar language: "Differences of freights to be settled, if in · captain's favor, by cash; if in charterer's favor, by captain's bill; capotain having a lien on cargo for all freight," etc. Manifestly the cash to be paid to the captain was not to be his individual property; nor his obill tobe his individual obligation; nor the lien to be for his own benefit. His representative capacity is alone referred to. ;Emerigon treats of.this point with entire clearness, Contrats a la Grosse, C. 4, 12. Putting a Case from the Roman law he says: "As agent of Octavius Felix. I have received of you one thousand crowns. owhich I will repay you within a certain time. I am not bound in my own person,.becallse I have signell this obligation in my capacity as agent. * * *

THE SERAPIB.

441

In a wdrd,the agent who in the oblig-ation designates his capacity, of what- . ever kind it be, * * * is not. himself bound. * * *. But the agent. who pledges his own faith to another cannot be relieved· from his contract."

As to the capt&in's personal liability on a bottomry obligation, he says: "A distinction is to be made. If in the contract ot bottomry the captain has bound his own goods and his person (of which I have seen a thousand alllples) he is personally held. But if he has contracted only in the quality of the captain. the lenders * * will be limited to tbeir action in rem." The forms long in use show the two kinds of bottomry contract indicated by Emerigon,-the one, whereby the master simply "binds himself, his heirs," etc.; the other, whereby .he "binds himself, his heirs," etc., " * * and his goods and chattels," or his "lands, tenenlent9, goods, and chattels." Abb. Shipp. App. form 2; Mad. Shipp. pp. 947-949; The J. Goodhue, ISwab. 524, 527. The former words are but the formallangllage constituting a. representative obligation only, for which the ship alone is Jiable. The Virgin, 8 Pet. 554. This instrument is of that class. In The J. Goodhue, supra, the bond was of the latter class, pledWng·the master's "lands, tenements, goods, and chattels." The eighteenth supreme court rule in admiralty, in declaring that "in all suits on [valid] bottomry bonds the suit shall be in rem only," seems to determine ourlaw on this point in the master's favor, at least on all ordinary bottomry instruments; so that, unless the master has pledged his own propertY,l;>r pledged his own credit by some unusual language, he is not personally liable; and if lle has pledged his own property, then that is part of the" property hypotheCl:tted," and falls within the eighteenth rule. Other phases of this question have been forcibly presented by BENEDICT, J., in the case of The Irma, 6 Ben. 1, and need not be repeated here., The language of this instrument has less indication of a pledge of the master's personal credit than the ordinary forms of simple bottomry that contain no pledge of the master's goods. Thus, the ordinary forDlsoften state, as in,Sirrwnda v. Hodgson, 3 Barn. & Adol. 50, that the master "binds himSelf, his heirs, administrators and assigns," which latter words are absent in the present case; yet, with reference to auch a bpttomry; Lord TEN'rERDF.N, in the case cited, says: "It cannot be supposed that the lenders looked to him [master] personally. or to his personal means; nor that he intended to pledge himself per;soJlRlIy and absolutely for the payment, without regard to the means witb which he might be furnisbed by the ship and ber freight." .. As this bottomry obligation, therefore, does not bind the master personally, any suit seeking to charge him for a false representation, or for want of authority in executing it, must be upon a libel against him as a "wrong-doer," under rule 18, with the appropriate allegations; none of which existin the present libel. Such a libel eouId not be sustained in Tassi's favor, since he had notice of all the facts. .He knew that the amount was'more than was due to him, and that the error of £100 was a mistake by the master. To negotiate the draft for its full amount, without notice given of the error, would be none the less a fraud upon

442;.

FEDERAL REPORTER,

vol. 37.

·

the ship and hElr owners; even if this; the largest, mistake of £100. was caused, 'as the libelant claims, by the master's obstinate refusal to listen to the suggestioIiof Tassi's representative that there was error in the amount, though the masterl:lsserta the contrary. As fraud is not preBumed, it might be inferred that the libelant, the transferee, was notified of the mistake, in the absence of any evidence to the contrary. Strict proof should, therefore, be required of what occurred upon the transfer; what inquiries, if any, were made; and what knowledge or notice was given to the libelant, before admitting such an equitable estoppel as is claimed. 'The libelant's answers to the interrogatories do not cover this point. Such answers to interrogatories propounded at the close of the pleading under admiralty rules 23 and 27, are not strictly evidence in the cause, in any different sense than that in which the pleadings are evidence. Andrcw8v. Wall, 3 How. 568. Though sworn to, they are not a "deposition" for which costs can be taxed under Rev. St. § 824. Such a.nswers to interrogatories are designed rather as compulsory amplifications of the pleadings ou the specific subjects propounded in the interrogatories, so as to dispense with the taking of proofs, oi-evidence proper, on the facts that may be admitted. 'When the interrogatories are propounded by the libel, the replies (18ua11y make part of the answer itself. Duni. Adm. Pro 201. It is immaterial whether they are answered as 8. part of a pleading or separately. As evidence, they stand like the pleadiugs only. They are parts of the record, and/may, likethe'pleadings, be referred to by either party.. What is admitted, needs no further proof; but as respects matters which still remain at issue, such answers are not affirmative proof in favor of the party making them. Williams & B. Adm. Prac. (2d Ed.) 410. , The libelant did not answer the second interrogatory as to whether he bought or discounted the draft absolutely, or subject to its collection at New York; he says: , "I bought the draft because it was Signed by the captain. pledging the ship for its payment. which I considered a true guaranty, inasmuch as charterer indorsed to me the relative policy of insurance for the case of the ship's loss." He further states that the transaction was verbal; and that he has "no claim to make against Tassi.", Neither in the libel, nor in the answers to the interrogatories, is there an indication of any reliance on the master's credit. The language just quoted indicates that the bill was taken upon the credit of the vessel' only. Considering that the bill makes express reference to the charter" and that neither the charter, nor the general maritime law, nor· the Italian law, authorize bottomry of, the ship for debtS of this kind,thelibelant was specially put upon inquiry as to the facts and the terms of the charter,. which were easily procurable from any equitable estoppel could in this Tassi; and it is doubtful case arise. See The Prilnceof 3 Moore, P. C. 1, 11. That question, however, cannot' be determined in this action., The libelant may take a decree for the amount deposited in court, without further costs to either party.

THE ElERAPIS.·

443

91,

Upon the settlement of the decree a question arises as to which party shall bear the charge of 1 per cent. on the .QmoWit tendered and paid into court, which section 828 of Rev. St. U. S. makes payable to the clerk for "receiving, keeping, and paying out money," as well as the marshal's percentage on the same. In the case of Upton v. Triblecock, 4 Dill. 232, note, Mr. Justice MIl... LER held that where a party is adjudged to pay money,and, instead of paying it to the other party or his attorney, elects to pay it into court, he must payin addition the clerk's statutory chatge. In Kitchen v. Woodfin, 1 HtighEls, 340, the. ruling was similar as to the clerk's fees upon mQney collected on execution and paid into the registry of the court. When a full tender is made before suit brour;ht, the defendant, by rule 72 of this court, in order to avail himself of the tender in discharge of costs, must, "before answer, plea, or claim filed," deposit in the registry "the same tender." He need deposit no more; for if the original tender was sufficient, all subsequent costs and charges should be borne by the libelant, and the Jibelant therefore recovers only the deposit, less the clerk's charges thereon. If the tender is first made after suit brought, by deposit with the clerk under rule 73, then the defendant elects to make use of the registry of the court to avoid subsequent costs, and he must therefore deposit, in addition to the amount due to the libelant, the clerk's and marshal's statutory-percentage thereon. The clerk is entitled to deduct from the fund deposited these statutory fees; so that, in effect, the amount inuringto the credit of the libelant as a tender to the defendant, is the amount deposited, less these statutory charges. It is the same with any other payment to the clerk, or deposit under the order or decree of the court. See The Georgertnna, 31 Fed. Rep. 405. This tender was first made after suit brought; and the clerk's percentage, therefore, must fall upon the defendant. It is the same with executions. Under rule 157, the marshal being required to pay into the registry all moneys coming to his hands by any process of the court, he should be directed upon executiOIi to collect of thejudgment debtor the clerk's percentage, as well as his own fees. The debtor may avoid both these charges by payment of the judgment to the proctors before the execution issues. His failure to do so is an election to leave the collection of the judgment to legal process; and this properly charges upon him all the (ees consequent on that process.

4.44

.FEDERAL REPORTEn J

vol.

37.

THE POMONA. LoUlBIANA

&

T.

R. & S. S. CO.

t1. THE POMONA AND HER CARGO.

(DiBtrict (Jourt, D. South Oarolina. Januarv 29.1889.)
8ALVAGlll-COMPENSATION-AMoUNT.

The three-masted propeller Pomona, bound from Port Maria. Jamaica, to broke the tail-end of her shaft, her propeller became useless, and soon after was lost. Her steering apparatus was seriously strained. she became unmanageable, refused to obey her rudder, and made no way. She was out of the regular track of steam-vessels, and could get no substantial assistance for 17 days, during which time she had out signals of distress. The City of New York, valued at $225.000, with a full cargo, bound from New York: to Galveston, having been carried out of her course, sighted the Pomona, and at once came to her aid, towed her some 240 miles to Charleston, and hired a tug to take her over the bar. The trip was neither difficult nor dangerous, but was only just in time to avoid very bad weather. The Pomoua and her cargo were worth $14.880. The court awards $2,000, including the sum ,paid to the tug.

In Admiralty. Libel by the Louisiana & Texas Railroad & ::;teamShip Company against the steam-ship Pomona and her cargo, for salvage. Barker, Gilliland Fitz Simons, for libelant. T. M. Mordecai and Wing, Putnam, for respondent. SIMONTON, J. This is a case of salvage. There is always much embarrassment in determining the amount of a salvage awar<l. The general principles are well established. Mr. Justice BRADLEY, in The SuUote, 5 :Fed. Rep. 99; Judge WALLACE, in The Baker, 25 Fed. Rep. 774; the supreme court in The Blackwell, 10 Wall. 13, and in Cope v. Dry Dock 00., 119 U. S.628, 7 Sup. ,Ct. Rep. 336,-clt>arly present the rules which govern in these cases. The application of the rules creates the difficulty. No two cases are ever alike. Each case must be governed by the special circumstancessurroundingit, and the final impression left upon the mind after consideration of them. Of the elements which make up the award the chief, and, it may be, the most important, is the danger from which the salved property was rescued. It must pay the pl'ice; what was this service worth to it? In the case at bar, the Pomona, a three-mast propeller, left Port Maria, in Jamaica, on her regular trip to New York, about the 3d of March, 1888. She was of 170 tons burden, 15'0 feet long, 21 feet beam, and 18 feet in depth. Her cargo consisted of coffee, bananas, and annatos. Shortly after the commencement of her voyage she met tempestuous weather, and on the 8th of March broke the tail-end of her shaft. This rendered the propeller useless, and in a day or two she lost her propeller. Having a full complement of sails, she attempted to prosecute her voyage. In despite of all her efforts, buffeting with the winds and waves, she was constantly driven from her course, became at times unmanageable, not obeying her helm, frequently drifting, and exposed to oft-recur-