THE SAUGERTIES. THE SAUGERTIES.·

SHITH It

625

01.

'V.

THE SAUGERTIES, (two cases.) SMITH et aJ..
November 25, lsoo.)

GIDi'"THNER 'V.

(DfBtrtet Court, 8. D. New York.

L

CARRIERS-JOINT ADVENTURE-PROTESTED DRAFT-FORFEITURE.

Upon the shipment of a cargo of ice upon a joint adventure, under a contract providing for the acceptance by the consignee of a sight draft for a guarantied sum, to be attached to the bill of lading, under which contract the consignee chartered the vessel on which the carg-o was accordingly shipped, and made advances for trans. portation pursuant to the contract, time not being made essential, held, that the shipper was not entitled to treat the contract and the charterer's rights as forfeited by the mere non-acceptance of the draft, or to deal with the cargo as his own. Upon such a joint adventure and shipment, the bill of lading made the cargo de· liverable to the order of the shippers. Held, that the bill of lading was controlled by the contract subject to which the ice was shipped; and that the master's copy, obtained at the port of delivery by the shipper to attach to the draft was insutlicient. though indorsed to the libelants, to require the vessel to deliver the cargo to them, while the other bill of lading was outstanding, without indemnity to the ship against the claims of the charterer for whom the ship held possession, subject to the contract; and that a suit for the ice thereupon was prematurely brought. On delivery of a cargo of ice, a considerable portion proved to be "struck." There was a valve in the pipe in the hold used for the discharge of condensed steam. Beneath the valve a large hole was found on discharge running throug-h the cargo, and considerable steam was at times observed in the hold. Held, upon conflicting evidence, that the damage was largely due to the negligent use or condition, of the valve by which the ice had become" steam-struck, .. through steam escaping into the hold: and the amount of such damage was allowed in the second libel, and offset against the amount due under the third libel as freight for the use of the vesseL

I.

SAME-BILL OF LADING-llisTER'S COPY-INDORSEMENT-PREMATURE SUIT.

B.

SHIPPING-NEGLIGENCE-STEAM IN HOLD-DAMAGE-FREIGHT.

In Admiralty. First suit to recover damages for non-delivery of cargo of ice. Second suit to recover for damage to the ice during transportation. Third suit a cross-suit to recover freight for transportation of the ice, and use of the vessel during delivery. Goodrich, Deady Goodrich, for Smith et al. Wing, Shoudy P'utnam, for the Saugerties and owner.
"BROWN, J. The above three libels have grown out of a shipment of a cargo of ice on board the barge Saugerties, by the Treats Fall Ice Company, of Rangor, Me., to the firm of C; L. Riker, of New York, in August, 1890. On the shipment, a bill of lading for the ice was taken by the company, making the ice deliverable to the company's own order. After the arrival of the baugerties at New York, the captain's copy of the bill of lading was obtained by the company for the purpose of drawing on Riker on account of the cargo, and, the draft not being paid, the company delivered the captain's bill of lading, indorsed by them, to the libelants, to whom they also executed a bill of sale. The first libel was filed September 23d, to recover damages for non-delivery of the ice to the
I

Reported by Edward G. Benedict, Esq., of the New York bar.

v.44F.no.8--40

DDERAL REPORTll:R,

vol. 44.

libelants on demand as indorsees of the bill of lading. The second libel, filed October 21st, claims darrJages'fo1'negIlgence during the transportation of the ice, whereby it became "struck." through ste!j.m negligently admitted into the' hold. . The third libel was brought by the owner of the Saugerties to recove,r for the hire thereof at $50 per day, upon the alleged promise of the respondent topaya't that rate therefor. The ice shipped oD;poard the Saugerties by the Ice Company, under a written contract with C. L. Riker, dated August 12, 1890, which provided, among other things, (1) that. the company should ship onboaid the Saugerties, then on the way to Bangor, 1,600 tons of good mer,cbantable ice; (2) that Riker should tow the barge, whenloaded,with a,ll to New York,aIldthere sell the cargo for the best (3) that he would ,pay the company's draft at one day's certificated, in-take weight of the cargo, at $2.50 per ton; weight. aql1:,bill of lading to be attached' 00< the dra(t; the said '2'j50per ton being guarantied tope paid to the ootnpany in any eveQt, the lostj, the proceeds Of· sale RikeJ;, to have $L50per ton freight, half the cost or the cost of discharg.e'"il-iid to, advance all necessary e,xpElllsesincurred after the ClJ,rgo left Bangor; the cargo to remain the property of the company until and and the pet profits tl), be'evenly divided the com.;. panyandRiker, who was to furnish a detailed statementoftheexpenses, and a, check to the cOmpany for tlil;iir)hare of the Riker had chartered ,the barge at the rate of$50aday, for the ptlrpose of bringing onJhe cargo of ioo',alld XI: tUgJo tow her, to Bangor arid, back to New.York" The barge left August 30th, and arrived near New York September 5th. On August 28th, in consequence Of a fall in the market price, to thl;) company them not tb drawori him on one the bil.loflading,but p'romto, Pll.y the amount before. heunloadell ,the cargo, to which.a reply was Mr. Bartlett, one of that he would seehim in New York in reference to it. ' September 5th, Mr; Bartlett came to New York, and had several interviews during the week following with Riker and his partner without referririg to the draft. On the 12th he told Riker ,he wanted thecontract performed, and on the 13th told his partrist that 'he had determined to draw. In the mean time, finding that hellad left'the bills of lading in procured from the captain of the' hrtrge his copy ofihe bill of'lading; telling him that he wished to make use of it for the p1.upose of draWing on Riker, according to his contract, and gave the captain a receipt; promising to send him oneof the othet' billsoflading soon as he returned to Bangor. OIi the 15th, a draftati one day's sight was drawn ouRiker by Mr. Bartlett in the name of the 'company for $4,000, ,attached to the master's bill oflading, which the name. of the compatly, and presented for'8ceeptarice to Riker; , It Was du1t l>,oteated for rion-acceptance, and, <u( tlie J 19tb' dUly protested for non,:,pliyrlie'nt. ali Saturday, the day following, Mr. Bartlett, executed .,a '. bill of sale of, the ice,in the name of the firm to the aDd )delivered to . .,indorse<; bill of

Or'

THE SAUGERTIES.

627

lading that had been attached to the draft. On the same day, the libelants demanded of the master and owner of the barge a delivery of the ice under the ,bill of lading and bill of sale above state4. In the interviews that followed on the same day, the owner of the barge referred to the claims of Riker under his charter of the barge, and his payment of $900 on account of the charter money, and of some $800 in addition for towage; but he offered to deliver the ice as desired if the libelal1ts would indemnify him against any claim of Riker, which the libelants refused to do. Mr. Genthner, the owner of the barge, sta.ted he would consult counsel, and answer further. He was notified by Riker not to deliver the ice to the libelants, and would do so at his peril. On Monday, the 22d, a notice somewhat similar was served by Riker on the libeIimts, and notice was also given them, on behalf of Mr. Genthner, that security against Riker's claim was required, and that the captain's copy of the bill of lading was insufficient. ' On the 23d, the first-above libel was filed for non-delivery of the ice on the libelants' demand, On the next day, .Mr. GenthnElr received from Mr. Bartlett, who in the mean time had returned to Bangor, another copy of the bill of lading, as promised to the captain; and no further steps having been taken in the mean time by Riker, and an offer having been made by him to waive his claim for the moneys advanced by him, if the company would release him from his guaranty, Mr. Genthner, by his attorneys, on the 24th, agreed to deliver the iceas requested by the libelants upon the latter"s promise to pay $50 a day for the barge, allowing a reasonable time thenceforth for discharne, and computing frOm the 30th of up to which.date Riker had paid at that rate. . The libelants, on the 20th. or 22d,had made an agreement for the sale of the ice, at $3.50 per ton, deliverable at Hoboken, aud had ordered the barge there. By her failure to proceed at once, upon her arrivll:I there on the 25th, a further delay of three days arose in getting a berth; and when the discharge was ice having fallen in price, the purchaser, after the discharge ofabout 80 tClns, refused to accept l\ny more, on the alleged ground that the ice was unmerchantable inqnality, in consequence of a large proportion turning out "struck." The cargo was afterwards sold by the libelants.at auction, upon notic'e to Mr. at 65 cenid per ton. .Thepurcilusel' resold it at $2 per ton, and cnarge was completed on the day of the close of these trials, November 11th. On the trial it appeared that the bill ofsale of the ice to the libelants on September 20th, and the delivery of the master's copy of the b.ill of lading indorsed by the company, were for the benefitoCtlw latter, and Jor their convenience ouly in the transaction of any; subsequeut business in regard to th e ice in ,New York, and that it was accom panied by their guaranty to the libelants to hold them harmless, to pay them a commission for their trouble., ,Whilethe I)pl1linal title to the ice, therefore, was the libelants, .their rights were no g!eater tball .those of the ice com pany . . ..' l.Tpe tirst was, in my judgment, carisef.he ice CO,tI;lpan,ycould nyt cut otl' the l'lghts and intereStS ,of

628

I'EDERAL REPORTER,

vol. 44.

in the cargo in that summary manner, and because they could not lawfully require the barge to deliver the ice upon the captain's copy of the bill of lading while the other copy of the bill of lading was still outstanding. The contract between the ice company and Riker did not impose upon Riker an immediate forfeiture of all his rights as a conseof the non-payment of tie sight draft. The contract was not a contract of sale of the ice to Riker. It constituted a joint adventure, which was already to a considerable extent exe(,uted on Riker's part, and in which he had eXpBnded about$l,700. For this expenditure, he had equitable lien on the ice; and for the $900, perhaps a maritime lien also, by equitable subrogation, though this was subject to the provisions of the contract. Such expenditures by Riker were contemplated by the very nature of the contract; and, in the absence of any express ion in the contract for a forfeiture of his rights, no such forfeiture can be implied from the mere non-payment of the sight draft at the moment it was For the same reason th,e payment of the draft cannot be construed as a condition precedent to the acquisition by Riker of important interests in the cargo; since, by the nature of the case, a large pense had to be incurred by him in the execution of the contract before the bill of lading and contemplated draft could be presented. I do not think the drawing of the bill of lading to the order of the ice company was, in itself, incompatible with the nature of the contract between them and Riker, for it call be interpreted consistently with the contract. It was a proper mode of securing. the company against an unconditional delivery of the ice to Riker before he had performed his guaranty by paying the draft. Still, the ice was not in the possessiOll. It had been delivered by them to the barge for Riker, to be dealt with pursuant to the contract. They knew Riker had chartered the barge to bring the ice to him, and was incurring large expenses in doing so. The possession of the barge was, for most purposes, the possession of Riker; and was subject only to the restriction of the contract, and of the bill of lading given under it, which by implication required payment of the draft before the ice came under Riker's absolute control. Here the bill of lading was not an independent document. It did not give to the ice company, as consignees, as a bill of lading usually does, the lawful disposi.tion of the ice in any way they might see fit.. On the contrary, it was a niere shipping memorandum, given in execution of the company'.s contract with Riker, having reference to that contract, and wholly subject to it, as respects Riker's rights and interests. After· the ice was laden on Riker's chartered barge, the company had no right to do anything with the ice or with the bill of lading contrary to the contract hetween them and Riker. 1 Pars. Shipp. & Adm. 286; TheChadWicke,29 Fed. Rep; 521. .. . . . .' . . Notwithstahding the non-payment of the sight draft when due, nothing in the contract with the ice cbmprtny prevented Riker's contracting to sell the ice, and delivering it to the. purchaser, .at the sanie' time with the receipt of the price and his payment of the draft. That was per. fectly compatible with the contract, asweU as with the'bill of hiding'

-rHE SAUGERTIES.

629

Ko special time was made an essential part of the contract; and hence such a sale and delivery and payment of the draft might be made by Riker within a reasonable time, though the sight draft was not paid on the day it was due, and interest would be the legal damages to the ice company for the delay in payment of the draft. If there was unreasonable delay in disposing of the ice, the ice company could have brought the adventure to a close, on notice to Riker, by obtaining possession of the ice, if they could do so peaceably, and then it upon joint account; or by obtaining from the court, on suit brought, an order for an immediate sale. Such a sale would necessarily be upon joint account under the contract. A sale of the ice by the ice company to the libelants, such as this bill of sale imported, could only stand upon a lawful right in the company to repudiate the entire contract, and to treat the rights of Riker as wholly forfeited. If any such right existed, it was of so doubtful a character, and its exercise was so harsh and inequitable, that it would be most unreasonable to require the barge. and her owner to take upon themselves the risk and the burden of maintaining such a right, by delivering the ice, not to the shippers even, but to third persons, in violation of the charter to Riker, under which the vessel was running. Such a delivery of the ice to other vendees, with all the advantages of its transportation to New York, which Riker had procured and paid for, would be a much more serious and doubtful proceeding than would have been a delivery to the shippers themselves, on account of non-payment of the draft. The latter might have been partially compatible with the contract. The former was a total repudiation of both the contract and the charter. The demand of security against Riker's claims, as a condition of the delivery of the ice to the libelants was, therefore, a justifiable demand; and, such security having been refused, the vessel cannot be held liable to the libelants for non-delivery on that demand, nor for any damages accruing from such non-delivery. The use of the captain's bill of lading, moreover, as a means of diverting the delivery of the ice to some other person than Riker, was not authOJ;ized, and imposed no duty on the ship. The use of it for the purpose of attaching it to the draft, to secure a performance of the contract with Riker, was perhaps permissible, because that was using it consistently with the contract, and the captain assented thereto. The use of it for the purpose ot selling and delivering the ice to third persons was not justifiable, because that was not only inconsistent with the contract with Riker, but was not assented to by the master or owner of the barge. The barge was, therefore, justified in refusing to deliver the ice to anyone but Riker, except upon the production of some other bill of lading than the captain's own copy. A vessel is never ca-lled on to take the risk of delivering goods upon the captain's bill of lading only, which is a mere memorandum for the ship's convenience, while another bill of lading is outstanding, which the captain of the ".essel may be called on to make Eood by the delivery of the cargo to another, or be mulcted in damages for non-delivery. The Thames, 14 Wall. 98; The Mary Bradford, 18 Fed. Rep. 189; The Stettin, 14 Frob. Div. 142. This objection was not removed until th 43 forwarding from Bangor of the additional bill of lad- i

. 630

FEDERAl, REPORTER,

vol. 44 ·

ing, which was received: on September 24th, the day following the filing of the libeh :As soOn as the latterbHl oflading was produced ,and Riker apparently no longer insisted on his claims, the vessel proceeded to act under the libelant's directioll, as she 'ha:s done libel must, therefoI:e,be dismissed. . ., 2·. As respects the second libel for .the damages from steam improperlyadmitted to the hold, there has been a large amount of testimony, exhibiting a great difference of opinion, both as to the actual marketable quality of the ice as it came out of the vessel, the amount of "struck" ice, and the probable cause of its struck appearance. There is proof that: ice may besno-struck, water-struck, wind-struck, or fog-struck; and, upon analogy, it is argued that it· might be steam-struck on board the barge, though no previous instances of that kind of striking are proved. It is shown that some struck ice went on board, though it was urged that this was extremely little. Some of the conditions while loading were favorable· to ice being struck; while more or less snow on the sur1ace oHhe ice would at 'least partly protect it from the influence of those conditions. There is evidence that at times considerable steam was observed in the hold, through the use of a drIp-valve beneath the pump. rOOln ,by which the steam-pipe below was cleared of previous con· densation whenever pumping was to be done. While some of the witare not very exact or trustworthy as respects the amountofsteam observed, yet I cannot help giving great weight to the existence of a.large hole; oHhesize of a ·man, which was found running down through tbeice immediately beneath the valve, when the hatches were opened and the discbiarge commeneed. Though drip-valves similarly placed Were proved to be not uncommon on ice barges, no hole like this ill tbehie beneath them, or any hole, was proved to have been found in anYPI'6vious;case. Thisjs convincing proof ofsome defect in the or ahome improper use of it while pumping, whereby quantities of steam were torceddown into the hold. This'lends a probability find forde to the other testimony about the amount of steam seen in the hold, to which, through its vagueness, it would il'lOt otherwise 'be enti tIed. Looking:l1tthe whole 'evidence, I come to the <lonclusion that a considerable portion of the ice was damaged through steam improperly let into the' hold while the hatches were 011; and that; tbe amount of this damage, difficult as it is to fix, was $1,900. B. Use:vjthe. Barge; The sale of the ice by the libelants was on October 14th t and :12 days were allowed by them to the purchaser to take the balanoo oHhe:ice from the barge; This may he taken as their own estimate of;: n :reasonable ,time for disrharge after the previous discharge of 80 or W@ tons, during which they' were: to retain the barge for their own use. From August 30th, this makes 57 days; Deducting seven days.' as ,aBufficient and ample time fora resale of the ice after its rejecfor which dlEdibelants should not be charged, tion because caused by the barge's fault, there remain 50 dnys, for which they liable upOn their promise, at the rate of $50 per day ,making$2,500, again.s.t,:'Yhidh, should be offset the ctlamage to the ice adjudged in theotbel'iBdtion,and a decree entered tor' the difference;

THE TOPSY.'

631

KEtLyet al.

tI.

THE Topsy.

(D!Btriot Court, D. South CaroUna. December 29,' 18110.)'
1 ·.

. Where avessel is bound on a two-years' voyage, touching at many ports, a pro, 'Vision ,in the shipping 1\rticles tllat any seaman who terminates his contract before eJ\d of the voyage shall only receive one dollar per month. as wages is re$SQ'llr able. Where a seaman who bas shipped for such voyage and signed said' articles, VOl" untatily .terminates his contract and releases the vesllel on receipt 01 his wages at the rate of one dollar per month, and there is no eVidence of duress or ignorance of ,his rights, the release will not be set aside at his suit. ;
WAGES-RELEAS'E.

CONTRAC'J:,-,-FoRll'BITURE.

:

8. BAJorE-QUANTU!ol :M:ERUIT., . ," , 'Where a sailor Whose nanie does not aPIlear on the ship-ping articles, and who says that he shipped without signing them, pel'forms his duty properly until the 'vessel reaches a. port, when be leaves her, be is entitled to, recover on a (ltl-Itntum meruit for the time he 'served, flhere there Is no positive evidence that he signed the articles.,' ,
4. SAJorE-RIIlA80NABLE DIS?UT!!.

.. Where 8uch right to wages is denied under a belief that be ,had ligned thoe shipping articles u.nd.e1' another name, and had violated 'their terms, he is not eutitleQ'to ;wages from the, ,time he left ,the ship np wthe .date of payment, &inoe such matters constitute I/o reasonable ground for dispute.. '' ,Where 'no prejUdice or manifest error il Ihown, the deoision of tbe master or: Ii. vessel,disrating a sailor from an able-bodied seaman to an ordinllol'Y will accepted by the court'in a liblll for wages. ,..", AJ:l court:w;ill $llllW a minor to re9QVer in llis own, name wages earned in sea when the contract on which he sues was made personally with hiui, and ,it dOl38' not appear that he hall any parent or guardian or tlttor entitled to'reearnings. FollOWing The Da'Uid' Ji,'aust, 1 Ben. 184. " '.
, ,. . . ' .

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.

, , .

"

lLS,o,n:-DtslUTING.

,

ADJoriRALTt-PRACTICE-INFANTS.

7.

SAJorB-JURUIJlICTION.

Where the subject of a foreign nation libels a vessel:belonging to such nation for United States court and the vessel,pending the suit, leaves port out any certain destination, and the libelant has left the :vessel, Will WJ,t, at the request of the consul of the said nation, refuse to take jurisdiqtli1n 'tile suit. " ,

of

;.

Libel by seamen for wages. C. B. Northrop, for libelants· .L N. Mathews, for clahnant.

In Admiralty.

·

SIMONTON, J. The libelants were a part of the crew ·of the British bark Topsy. The shipping articles, dated 12th August, 1889, state her voyage in these words:

"From Montreal and Quebec to Toulon. France, for a series of voyages for a. term. but not exceeding. two years; at Itlaster'soption. to port or places within, but not beyond, 10° north, and 700s011th, trading to and fro, as reqUired by master and owners., :Final port of discharge.in the United ordominion of Gimada, at master's option. Crew to oftermi,nating this contract previous to expiry of engagement, Qn llonable to master; they accepting oile dollar 88 cOlnpeJlllation ror their Stlf'Vlce.l.." , . :, " , ' ' , : ; L :, .
'co ,: