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gation of the ship. This decision is criticised in The Del Norte (D. C.) 111 Fed. 542 (Hanford, J.), in which the charter was held to be a demise of the ship. In that case the charter contained a provision that the master, chief engineer and steward should be appointed by the owner, and they were to be 'in all respects under the orders and direction of the charterer,' and subject to removal on his complaint, if found to be justified. It was held that the vessel was not liable to the charterer for loss or damage occasioned by the malfeasance or wrongful acts of the master or steward while in the char. terer's service, although the charter also contained a provision that on failure of the charterer to pay the hire the master should take and hold possession of the vessel ‘for and as the representative of the owners. Of The Craigallion, the court said:" (545) “ 'It is enough to say that one decision by a district court sustaining a suit in rem against a chartered vessel by the charterer for damages to the cargo, caused by the negligence of the officers and mariners in the performance of their ordinary duties, as such, while the vessel was in the possession and control of the charterer, is not sufficient to outweigh the great weight of authority, which, in my judgment, established a fixed rule of law inconsistent with any right in an owner pro hac vice to hold the ship or her general owner liable to him for losses attributable to torts or crimes of the master or crew. The Daniel Burns (D. C.) 52 Fed. 159. And the charterer is owner pro hac vice where the master is subject to his orders and directions, though appointed to his position as master by the general owner. The India (D. C.) 14 Fed. 476; The Bombay (D. C.) 38 Fed. 512. In such a case the charterer is himself responsible for the torts of the master, because, having a legal right to control, he is legally presumed to actually control, the master's conduct. On the other hand, the general owner is not responsible, because he does not have the right to control the master in the performance of his duties. Wood, Mast. & S. $ 281. This decision was atfirmed by the Circuit Court of Appeals, 9th Circuit, 119 Fed. 118, 55 C. C. A. 220. To the same effect is The Bombay (D. C.) 38 Fed. 512, in which reference is made to a clause identical with the 9th in the charter in the present case, and it is said :" (514) “ 'But in this case the matter as to the party in whom command, possession and control should be vested is not left to inference, but is settled by the clause in the charter party last quoted. The India (D. C.) 14 Fed. 476 (Judge Benedict), and 16 Fed. 262 (Judge Wallace), is cited as sustaining the conclusion; and it is undoubtedly to the same effect. I do not consider that Bethel v. Mellor (D. C.) 131 Fed. 129; Birt v. Hardie (D. C.) 132 Fed. 61, The Barnstable, 181 U. S. 464, 21 Sup. Ct. 684, 45 L. Ed. 954, and Leary v. U. S., 14 Wall (U. S.) 607. 20 L. Ed. 756, all cited by respondent, are at variance with the cases last referred to. In Wier v. Union S. S. Co., 9 Asp. Mar. C. 13, 9 Id. 111, there are expressions by most of the judges to the effect that a charter like the present does not constitute a demise of the ship. But the English decisions seem to be in some confusion on the subject (See Carver on Carriage by Sea [4th Ed.] pp. 148–156, where the cases are compiled). This writer says, however (page 149), 'Contracts in which the possession of the ship is handed over to the charterer are very much less frequent. But they are at times made, and occasionally in such doubtful shapes that it is difficult to tell whether, in fact, the possession does or does not pass to him. But when that does take place, so that the charterer, and not the owner, is in actual control of the ship, it cannot properly be said that the relation between the owner and the charterer is that of carrier and freighter. And that is still true, though the owner may have contracted to make and keep the ship fit for the work, and to provide her necessary stores, and even though he may also have undertaken to supply and pay the crew.'
By the weight of American authority, it seems to me that the charter in this case operated as a demise of the ship, but with a continued responsibility on the part of the owner for her proper navigation and maintenance. Under The Endsleigh and The Del Norte, supra, it would seem that the owner would not be liable even if the master or crew misappropriated the cargo. Respondent's counsel argues that if this is the law, the crew may broach cargo with impunity. But the risk of theft or other misappropriation by the crew is always assumed by the carrier of goods, and the offense could no more be com
mitted with impunity where the goods are carried for a charterer as owner pro hac vice than where they are carried by the legal owner under a contract of affreightment. The master is under the same obligations to protect the cargo in either case, and the crew are subject to the same punishment for theft; and by the 11th clause of the present charter the charterer has a right to appoint a supercargo to safeguard his interest. The mischief which it is argued would result if such charters be construed as demises is fanciful, I think. The shortages in question are more likely to have resulted from loss in loading or discharging or in tallying than in any other way, and in such event libellant would not be liable to respondent, since loading, discharging and tallying are all part of the charterer's obligations under this charter.
Respondent invokes the Harter Act, to all the terms, provisions and exemptions of which the charter is made subject by clause 25. By section 2 of the act Feb. 13, 1893, c. 105, 27 Stat. 445 [U. S. Comp. St. 1901, p. 2946] it is made unlawful for the owner, master, agent or manager of the ship 'to insert in any bill of lading or shipping document any covenant or agreement whereby the obligation of the owner or owners of said vessel to exercise due diligence, properly equip, man, provision and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents or servants to carefully handle and stow her cargo and to care for and properly deliver the same, shall in any wise be lessened, weakened or avoided. It is argued that the charter is a shipping document within the meaning of this act, and if it could otherwise be construed as relieving the ship and owner for non-delivery of cargo as between the owner and the charterer, the act precludes such construction. If this be so, it would have that effect whether referred to in the charter or not. But I do not think that it applies, or that the present case is within the policy or the purpose of the act. The prohibition, in my judgment, was intended to prevent restriction of liability to the prejudice of shippers of goods under contracts of affreightment, and did not contemplate a regulation of the terms and conditions on which an owner might lease his ship to another as one would lease a house. The owner referred to in the act is the carrier, and where a charterer is owner pro hac vice, the prohibition applies to him in his contracts of affreightment, whether made by him personally, or by the master or another person as his agent. This appears to be in harmony with The Delaware, 161 U. S. 459, 16 Sup. Ct. 516, 40 L. Ed. 771, and The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130. If the construction which the respondent puts upon the act be correct, then a ship owner who absolutely surrenders command, navigation and control of his ship to another, reserving no voice whatever in her management, cannot lawfully stipulate with
with the charterer that he shall be free from all liability to him arising out of the business of the ship while she is run by the charterer.
I therefore disallow the claims for shortage."
Nothing can, in my judgment, be profitably added to the commissioner's discussion, which, with the conclusion, seems to be well sustained by the authorities cited.
This exception is also overruled, and the report will be confirmed.
THE PAUL L. BLEAKLEY.
(District Court, S. D. New York. June 6, 1906.)
1. MARITIME LIENS—WRECKING SERVICES-CONTRACT WITH INSURER.
A scow was sunk in the harbor of New York, which was its home port, and on notice thereof by the owner to the insurer the latter agreed to have the vessel raised, and made a contract therefor with libelant, with which it had made similar contracts previously. Held, that the insurer
had no authority to bind the vessel for payment, nor did libelant acquire any lien by virtue of the contract, to which the owner had no relation.
[Ed. Note.—For cases in point, see vol. 34, Cent, Dig. Maritime Liens,
$ 48.] 2. SALVAGE-SALVAGE SERVICE-RAISING SUNKEN VESSEL.
The raising of a scow sunk in its home port under a contract, and where the work involved no element of danger and nothing out of the
usual, is not a salvage service, which creates a lien on the vessel. 3. MARITIME LIENS-SUIT TO ENFORCE—LACHES.
The insurer of a sunken scow made a contract with libelant to raise the same. The policy provided that no action thereon for loss or damage to the vessel should be maintained unless commenced within one year. Held, that libelant was barred by laches from maintaining a suit to enforce a lien on the vessel for the service after the expiration of the year, and after the owner's right to recover from the insurer under the policy was barred or had become doubtful.
In Admiralty. Suit in rem to enforce maritime lien.
ADAMS, District Judge. This was an action brought by the Merritt & Chapman Derrick & Wrecking Company to recover $689 from the scow Paul L. Bleakley, owned by Cara R. Bleakley, for wrecking and salvage services rendered between the 28th of June and the 3rd of July, 1902. The scow sank, with a load of dirt, near Shooter's Island, at the mouth of Newark Bay, in the Harbor of New York, and was raised by the libellant.
It appears that the owner of the boat was insured in the Greenwich Insurance Company for one year from December 31st, 1901. When the sinking occurred, the charterer of the boat communicated with the owner by telephone at Verplancks Point, New York. The owner thereupon requested the charterer's agent in New York and the builder of the boat, near her home, to notify the Insurance Company, which they proceeded to do by calling on its president at the office of the company in New York City. A conversation then took place in which it was arranged that the Insurance Company should attend to having the boat raised. This took place in June shortly subsequent to the sinking. The Insurance Company then made a contract with the libellant by correspondence, running from June 26th to 28th inclusive, which resulted in the raising of the boat and cargo, by the 3rd of July, of which the Insurance Company was notified by the libellant. Subsequently a bill, made to the scow and owner, for the services was sent to the Insurance Company, and later, on the 11th of September, at the instance of the Insurance Company, one was sent to the owner of the scow but was at once returned with the statement that she had nothing to do with it, and the libellant must look to the Insurance Company under the contract. Thereafter some dunning letters were sent by the libellant to the owner and finally the matter was put in the hands of attorneys, who brought this action against the SCOW.
The libellant's theory is that the services were rendered to the scow, which is liable therefor under the clause in the policy which provides:
"It is agreed that the acts of the assured or insurers, or their agents, in recovering, saving, and preserving the property insured, in case of disaster, shall not be considered a waiver, or an acceptance of an abandonment, nor as affirming or denying any liability under this Policy ; but such acts shall be considered as done for the benefit of all concerned, and without prejudice to the rights of either party. Further, the assured shall not have a right to abandon the vessel in any case, unless the amount which the insurers would be liable to pay under an adjustment as of a partial loss, shall exceed half the amount insured, nor shall detention by the season, or by any other cause, be alleged or allowed as cause for abandonment. Moreover, no abandonment, in any case whatever, even when the right to abandon may exist, shall be held or allowed as effectual or valid, unless it shall be in writing, signed by the assured and delivered to this Company or to their authorized agent, nor unless it shall be efficient, if accepted, to convey to, and to vest in this Company an unincumbered and perfect title to the subject abandoned; and the valuation of said vessel, expressed in this Policy, shall be considered the value in adjusting losses covered by this Policy." · It is further contended that there was no abandonment, and could be none under the terms of the policy, which is doubtless true.
It is further contended that the Insurance Company and the owner are one and the same toward the libellant and that when the Insurance Company was clothed by the owner with all of her right and power with regard to the scow, the libellant can not be deprived of its maritime lien, which it acquired by reason of its services and the authority of the Insurance Company under the policy to bind the scow. It is further urged that the case is governed by The Dredge No. 1 (D. C.) 137 Fed. 110, where it was held that a salvage claim had priority over earlier judgments in personam. The question of there being a salvage claim in that case was not litigated, the commissioner reporting that the petitioner there was the assignee of a salvage claim. The testimony shows here that the Wrecking Company was in the habit of dealing with the Insurance Company and nothing appears in this case to support a lien.
It does not seem that services of the character rendered here were salvage services. In Merritt & Chapman Derrick & Wrecking Co. v. Morris & Cumings Dredging Co. (C. C. A.) 137 Fed. 780, where a dredge was sunk in New York Harbor and raised in circumstances very similar to these, the Circuit Court of Appeals said:
"The work performed by the libellant, though skilful in execution and successful in result, was in no sense a salvage service. It had in it no element of danger to person or property, which is the principal factor relied on in sustaining large awards in salvage cases.
"The problem of raising the sunken dredge was an exceedingly simple one; no new or difficult questions were presented for solution. The sinking occurred in summer, no storm was raging, the water was comparatively shallow, the bottom was soft mud. The moment the wreckers saw the situation they knew exactly what to do."
There is no lien for raising a sunken vessel in her home port. The D. S. Newcomb (D. C.) 12 Fed. 735; The Venture (D. C.) 26 Fed. 285. There was no agreement whatever with the owner, unless the Insurance Company can be deemed to have been the agent of the owner under the provision of the insurance policy, above quoted.
It can scarcely be said that by virtue of such provision, the Insurance Company was clothed with the power to impose a lien upon the
vessel under the circumstances disclosed by the testimony, which rather shows that the libellant intended to rely upon the credit of the Insurance Company, with which it had been dealing for many years. It seems that before the libellant could rely upon such pledge, even supposing it was intended to be made, some inquiry should have been made of the owner, who could easily have been reached, and then it would have quickly learned that the Insurance Company was the underwriter only and had no authority apart from such as was incident to that relation, which apparently did not go to the extent of enabling it to pledge a vessel it was under obligation to save for the owner upon pain of indemnifying her for any loss that should arise from lack of care. Here there was no necessity for credit and it satisfactorily appears that no credit except that of the Insurance Company was in contemplation. No allusion having been made to the credit of the vessel, it follows that the credit of the Insurance Company was solely in view when the contract for raising was made. The Wandrahm (D. C.) 62 Fed. 935, affirmed 67 Fed. 358, 14 C. C. A. 414. It was there said (page 360 of 67 Fed., page 416 of 14 C. C. A.) :
“When a person, whose relation to the vessel is unknown, but who is not the apparent agent of the owners, who are unknown, but who can readily be ascertained, makes a contract for something to be done upon the vessel, in the line of his known business as a mechanic, the co-contracting party is put upon inquiry to ascertain the powers which the stranger possesses. If no such inquiry is made, and nothing is said about the credit of the vessel, the inference is that the material man was satisfied with the security of the sole debtor, and the mere subsequent declaration of the libellant that he furnished the materials upon the credit of the vessel will not vary the conclusion which is to be drawn from his conduct when the contract was made."
Even if the libellant had a basis for a lien, the delay on its part, in enforcing it, has been such as to destroy it. The policy provided :
"It is furthermore hereby expressly provided, that no suit or action against this company, for the recovery of any claim for loss or damage upon, under, or by virtue of this Policy, shall be sustained in any Court of Law or Equity, unless such suit or action shall be commenced within the term of twelve months next after the loss or damage shall occur; and in case any such suit or action shall be commenced after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence and a conclusive defense against the validity of the claim thereby so attempted to be enforced
No proceedings were taken by the libellant to enforce a lien until the libel was filed herein on the 31st day of July, 1903. A claim was made against her by the Insurance Company on the 29th of July, 1902, but it was immediately returned with the statement that she had nothing to do with it. On the 11th of September, 1902, the libellant sent a bill to the claimant's agent and he returned it and replied that the scow was insured in the Greenwich Company, which made the contract, and the libellant must look to that company for payment. It sent some dunning letters to her but did nothing further until the libel was filed, more than 12 months after the accident. In the meantime the claim against the underwriter was jeopardized if not lost under the clause above quoted. If, therefore, a recovery