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for the purposes of navigation during the charter period. The purpose of the contract was not at all the mere building of a vessel in a certain way, but the delivery of a vessel having certain guarantied qualities for service under the charter. The reference to ship "to be built" I construe as words of mere inducement or description, specifying the vessel to be chartered. Such a contract is a maritime one, and upon the delivery of the vessel, and her running under the charter, she, as well as her owners, are bound by the guaranties contained in the contract. The breach complained of is not the breach of a contract to build, but of the guaranty that the vessel delivered for use under the charter shall be of a certain draught and speed. These guaranties speak from the time of delivery, and form a continuing contract, and the breaches are continuing breaches; and, it being admitted by the exceptions that these guaranties were broken at and from the time of the delivery of the vessel under the charter, and of her entry upon the performance of it, I see no reason why the ship should not be liable in rem for the breach of the charter in these respects, as much as for the breach of any other charter obligation, from the time of her entry upon the performance of it. The charter itself furnishes some evidence that it was in the mind of the parties that the ship should be bound for the performance of these guaranties, for the language of the memorandum is that "the steamer guaranties to have a speed of eleven knots," etc. The case of The Eli Whitney, 1 Blatchf. 360, was not a case of the breach of any part of the contract contained in the charter. Parol evidence offered to prove parol guaranties was ruled out. The rest of the decision was only to the effect that misrepresentation or deceit as to the ship's capacity, by means of which the written charter had been effected, would not sustain a lien and a suit in rem. The present is not a case of misrepresentation or deceit outside of the terms of the charter; but of a breach of an express warranty contained in the charter, materially affecting the performance of the contract. For such breaches of warranty, after the ship has entered upon performance, the ship is liable in rem. The Volunteer, 1 Sum. 551, 571; The Tribune, 3 Sum. 144; The Hermitage, 4 Blatchf. 474, 476. Analogous cases are numerous.

* * *

2. As respects the joinder of demand for relief in rem and in personam, the provisions of the supreme court rules in admiralty do not touch libels on charters or on contracts of affreightment. It has long been the practice in this circuit in actions on charters or contracts of affreightment to admit the joinder of both forms of proceeding in the same libel. The subject has been repeatedly considered in this and other courts. The Zenobia, Abb. Adm. 48; Vaughan v. Sherry Wine, 7 Ben. 506, 508, affirmed 14 Blatchf. 517, 519; The Monte A., 12 Fed. Rep. 331, 337; The J. F. Warner, 22 Fed. Rep. 342; The Director, 26 Fed. Rep. 708, 711; Joice v. Canal-Boats, 32 Fed. Rep. 553. The exceptions are overruled.

PADMORE v. PILTZ.

(District Court, D. Washington, W. D. August 6, 1890.)

1. SHIPPING-ASSAULT BY MASTER-DAMAGES.

In a suit in personam by a cook against the master of an American vessel, upon proof that the master punished the cook for willful disobedience on board of the vessel in port, by assaulting and striking him upon his head with a belaying-pin, seriously injuring him, the court awarded as damages $1,500, besides the value of personal effects lost in consequence of the injury.

2. SAME-POWER TO PUNISH.

In such a case, the assertion by the master of the lawfulness of such punishment will be regarded as an aggravation rather than a defense; a resort to the use of a weapon or violence being only justifiable when necessary to enforce instant obedience in a case of emergency at sea.

(Syllabus by the Court.)

In Admiralty.

Taylor & Hammond, for libelant.
Applegate & Titlow, for respondent.

HANFORD, J. This is a suit in personam against the master of an American vessel, to recover damages for an assault and battery. The proofs satisfy me that the libelant was employed as steward and cook on board the schooner called the "Robert Searles," and while so employed, on a Sunday evening, at the port of Tacoma, in this district, on board of said vessel, the master twice requested this libelant to get him a cup of tea, and, upon said request being defiantly refused, went into the galley, and there violently assaulted the libelant, striking heavy blows upon his head. with a wooden belaying-pin, from the effects of which the libelant was rendered insensible for a time and quite ill for several weeks, and there is some probability that said injuries may permanently incapacitate him from enduring continuously the fatigue and heat incident to engaging in his profession as cook. The only defense urged on the part of the master is that he acted within the limits of his lawful authority in chastising. the libelant for willful disobedience of lawful commands, and that by accepting payment of the wages due him the libelant has released the master from all claims for damages.

On the facts I hold that the libelant is entitled to recover as damages such a sum as will compensate him for the injury he received, and as will also. in some degree punish the master for his malicious and unwar-, ranted conduct in resorting to extreme violence and use of a dangerous weapon. The claim set up by this master that the law authorized him, at a civilized port, to punish disobedience of a cook by Jesort to measures only justifiable in case of an emergency and of actual insubordination by a member of the crew at a time of peril at sea merits rebuke, and I regard it as an aggravation of the original offense. The proofs also clearly establish the libelant's claim for loss of part of his personal effects, which were in the vessel at the time of his injury, and were, in consequence of his inability to remove or secure them after being beaten until he was rendered insensible by the master, lost; the value being $86.50.

There is not shown, either in the defense pleaded in the answer or in the proofs, any such an agreement, based upon a valid consideration, as would release the master from liability to respond in damages for the personal injury and loss of property above mentioned. The court therefore awards the libelant damages for the personal injury in the sum of $1,500, and for loss of property in the further sum of $86.50, and costs. Let findings and a decree be prepared accordingly.

COSTELLO v. 734,700 LATHS, etc.1

(District Court, E. D. New York. November 10, 1890.)

DELIVERY OF CARGO WHEN LIEN NOT

1. MARITIME LIENS LIEN FOR FREIGHT LOST. A ship-master discharged a cargo of laths, according to the direction of the consignee named in the bill of lading, which were received and piled in the yard of the purchaser, about 300 feet from the vessel. After the completion of the discharge, demand was made for the freight, but, owing to disputes as to the amount, the purchaser refused to pay the freight called for by the bill of lading. The master immediately served notice that his lien for freight had never been abandoned, and afterwards seized the cargo under process in this suit. Held, that the lien had not been abandoned.

2. BILL OF LADING-CONFLICTING COPIES-MASTER'S COPY.

A bill of lading calling for 55 cents freight per thousand laths was delivered to the master of a vessel at Montreal, under which the voyage was performed. A bill of lading had been sent by the shipper to the consignee, which stated the freight at 50 cents per thousand. Held, that the bill of lading first executed and delivered to the master, and under which the voyage was performed, was the contract binding on the parties and the cargo.

8. DELIVERY OF CARGO-EXPENSE OF PILING CARGO.

A vessel cannot be charged with the expense of piling her cargo of laths in the yard of the consignee, where the bill of lading contains no provision as to such piling.

In Admiralty. Suit to recover freight and demurrage.
Hyland & Zabriskie, for libelant.

A. B. Cruikshank and Peter Carter, for claimant.

BENEDICT, J. This is an action to enforce a lien for freight and demurrage upon a cargo of laths and lumber shipped at Ottawa, on board the schooner Nora Costello, to be transported therein to the port of New York. It appears that the Nora Costello and another similar boat, owned by the same owner, having been waiting in Ottawa some time for business, were furnished a cargo by D. Murphy & Co. By direction of D. Murphy & Co., they went to a designated lumber yard and there were loaded, no agreement as to the rate of freight having been made. When the boats were loaded the shipper was, for the moment, for some reason, unable to prepare bills of lading, and it was then agreed between him and the owner of the boats that the boats should start at once upon the voyage, and that he would make out bills of lading for the cargoes,

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

and send them to his agent at Montreal, where the boats could obtain them. The boats accordingly started upon the voyage without bills of lading. On the arrival of the boats at Montreal, bills of lading for each boat, sent by the shipper at Ottawa for them, were delivered to the owners of the boats in Montreal, and the boats thereupon proceeded to New York with their cargoes. The bill of lading of the Nora Costello was delivered to the master of the Nora Costello, but was never signed by any one. It was a blank bill of lading regularly filled up, and apparently a captain's copy of the bill of lading of the cargo in question. With these bills of lading in hand, the boats proceeded to New York, and there delivered their respective cargoes. Both bills of lading received at Montreal provided for a rate of freight of 55 cents per thousand of the laths, and the other boat was paid her freight at that rate. The Nora Costello, upon arrival at New York, was reported to E. R. Weed, the consignee named in the bill of lading, and Weed instructed the master to tow his boat to H. S. Christian's yard, and there deliver the cargo. Accordingly, the boat proceeded to Christian's yard, as directed, and there delivered the laths to Christian, who had purchased them of Weed, and the lumber to Ross, who had purchased it also from Weed. Christian had instructions from Weed to pay the freight on the cargo, and the cargo, on arrival at his yard, was reported to him. He received the laths from the vessel in his carts, by which the laths were carted to a place in his yard some 300 feet from the vessel. There the laths were piled up by men employed by Christian, but, as he claims, for the benefit of the vessel. Immediately upon the completion of the landing of the cargo, the master made a demand on Christian for freight and demurrage. Christian, who, as already stated, had been authorized to pay the freight by Weed, the consignee named in the bill of lading held by the captain, claimed to deduct from the freight the sum he had paid for piling the laths, refused to pay any demurrage, and offered to pay the freight at the rate of 50 cents per thousand, subject to the reduction for piling, but refused to pay freight at the rate of 55 cents per thousand. The master at once notified Christian that his lien upon the cargo had never been abandoned, and that he would at once enforce it by seizing the cargo, and thereupon, after some fruitless requests, the master filed his libel against the laths and lumber, and the marshal took possession of the laths remaining in Christian's yard, and the lumber in Ross' yard. Upon these facts the contention, in behalf of the claimant of the laths, is that the lien for freight and demurrage was abandoned, and no longer exists.

My opinion, however, is that the lien for freight canno be held, upon the facts proved, to have been abandoned. The proofs show that the laths were proceeded against while they were still in the place where they had been deposited at the time they were landed, and before any change of ownership had occurred, and that the person who received the laths was the person who, by arrangement between him and the consignee, was to pay the freight, and who concedes that the demand for freight was accompanied by notice of the lien and of an intention to en

force it, and that this notice was given as soon as the landing of the laths was completed. So that it may properly be found that the landing of the cargo, demand of freight, notice of intention to hold the lien, and seizure for the freight, were, in substance, simultaneous. To such a case the remarks of the supreme court of the United States, when deciding the case of Bags of Linseed, 1 Black, 108, seem especially applicable:

"Courts of admiralty," says the court, "when carrying into execution maritime contracts and liens, are not governed by the strict and technical rules of the common law, and deal with them upon equitable principles, and with reference to the usages and necessities of trade. And it often happens that the necessities and usages of trade require that the cargo should pass into the hands of the consignee before he pays the freight. It is the interest of the ship-owner that his vessel should discharge her cargo as speedily as possible after her arrival at the port of delivery; and it would be a serious sacritice of his interests if the ship was compelled, in order to preserve the lien, to remain day after day with her cargo on board, waiting until the consignee found it convenient to pay the freight, or until the lien could be enforced in a court of admiralty. The consignee, too, in many instances, might desire to see the cargo unladen before he paid the freight, in order to ascertain whether all of the goods mentioned in the bill of lading were on board, and not damaged by the fault of the ship. It is his duty, and not that of the ship-owner, to provide a suitable and safe place on shore, in which they may be stored; and several days are often consumed in unloading and storing the cargo of a large merchant vessel; and if the cargo cannot be unladen and placed in the warehouse of the consignee without waiving the lien, it would seriously embarrass the ordinary operations and convenience of commerce, both as to the ship-owner and the merchant."

The necessities of commerce, spoken of in the above extract, forbid, as it seems to me, a decision which should prevent the master of a vessel from dealing with his cargo as the master has done in the present instance; and this, whether the lien for freight be considered a maritime hypothecation, or deemed to depend upon a constructive possession of the cargo by the master. It is insisted, however, that the decision made by the court in the case of the Bags of Linseed was adverse to the lien, and compels a decision adverse to the lien in this case. But that case was very different from this. There, a shipment of linseed in bags was delivered, part of it into another ship for shipment to another port, and the rest to the representative of the consignee, and by him removed from the place of discharge to a public store-house, and there entered in bond in the name of the consignee, without any notice of intention to hold the lien for freight being given at any time, and when the libel for freight was filed, the goods had passed under the control of the United States, in a public store. In such a case the lien for freight could well be held to have been abandoned. Indeed, it is not seen how jurisdiction to declare the goods subject to a lien had ever been acquired, if, as the case seems to show, the goods, at the time of filing the libel, were in a bonded warehouse, in the custody of the United States, under the warehousing act, upon an entry made in the name of the consignee under that statute. But, however this may have been, it cannot be doubted

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