GIBSON V. BROWN.1 (District Court, S. D. New York. November 20, 1890.) 1. SHIPPING-CONTRACT OF AFFREIGHTMENT-AMOUNT OF CARGO DELIVERED-LUMP SUM. To take the case out of the rule that freight is payable only on the packages delivered, the language of the carrier's contract must express such intent with reasonable certainty. 2. SAME-BILL OF LADING-STIPULATION AS TO FREIGHT. A bill of lading provided for freight at the rate of 32/6 per ton, "to be paid on right delivery as customary as per memo. in the margin," the memorandum in the margin being: "Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @ 32/6 per ton, £46.16.7." Held, that the stipulation was not such certain contract for payment of a lump sum as to entitle the carrier to recover the full amount of the freight, on a short delivery, occasioned by twice discharging at ports of distress through perils of the sea. 3. SAME-CARGO-OWNER-ALLOWANCE IN GENERAL AVERAGE-INCLUSIVE OF FREIGHT. An allowance in general average was made to a cargo-owner for 18,000 lbs. of oil lost by sea perils, the value being calculated on the basis of the New York price, which would include the freight to New York. Held, that the ship was entitled to recover the freight on the 18,000 lbs. In Admiralty. Suit for balance of freight. Wing, Shoudy & Putnam, (C. C. Burlingham, of counsel,) for libelant. Bangs, Stetson, Tracy & Mac Veagh, for respondent. BROWN, J. The libel is filed to recover a balance of $428.79, freight alleged to be due upon several consignments of cocoanut oil from Cochin China, and upon the bills of lading therefor indorsed to the respondent. A considerable number of the casks were lost by sea perils. The respondent has paid the stipulated rate of freight upon the number of gallons actually received by him. The libelant contends that the freight specified in the bills of lading constitutes a lump sum which the respondent was bound to pay in full, notwithstanding the fact that a portion of the packages was lost in transportation. There were four bills of lading, all of which provided for the payment of freight as follows: "Freight for the said goods at the rate of 32/6 per ton of 210 imperial gallons to be paid on right delivery, as customary as per memo. in the margin, at port of discharge." In the margin was the following: "Memo. of freight. * * * Imperial gallons 6,052, at 210 galls. per ton, equals 28.819; @32/6 per ton, £46.16.7." At the bottom was a stipulation: "Not accountable for leakage or breakage, except from improper stowage." On the trial, the evidence of one witness was given, to the effect that it was customary to collect full freight, though a part of the packages were missing, if the aggregate freight was stated in the margin as in this case. So much must depend upon the circumstances of each case, and upon the language of the bill of lading itself, and the testimony of this witness seemed to me so uncertain in several respects, that I cannot find established the existence of such a custom. The respondent, who had had equal experience in similar importations, testified that he had never 1Reported by Edward G. Benedict, Esq., of the New York bar. known or heard of such a custom; and a contrary instance was produced. in dealings with the firm with which the libelant's witness was connected. Even if the words "as customary" in the bill of lading be connected, therefore, with the rate of payment per ton instead of with the word "delivery," (a doubtful construction,) I do not think the proofs sufficient to change the construction to be reasonably put upon the language of the bill of lading itself. No doubt, where a lump sum is specified as the freight to be paid on delivery, whether by charter-party or bill of lading, the consignee accepting the goods must pay the stipulated sum without deduction for what may be lost without the fault of the ship. This rule is applied because it is inferred from the language of the bill of lading or charter-party that the parties intended that the ship should receive the particular lump sum stipulated for her services, without incurring any risk of loss on freight through a loss of part of the goods. without her fault. Shipping Co. v. Armitage, L. R. 9 Q. B. 99, 107. In the present case, had all the casks been delivered by the ship, and it had only been a question of loss through leakage, inasmuch as it was also stipulated that the ship was not to be liable for leakage, I think she would have been entitled to recover the whole freight. All the packages having been delivered, the vessel would be entitled to compute the freight upon the whole quantity, since the delivery would have been a "right delivery" by the ship, so far as she was concerned, of all taken on board. The Defiance, 6 Ben. 162; Carv. Carr. by Sea, 578, 579. The present case seems to me substantially different. Through perils of the seas, the cargo shifted. A portion of the packages were broken. The ship made ports of distress where the cargo was discharged, and, during such discharge, other damage and breakage arose. Much oil escaped belonging to the libelant and to other shippers. What could be saved was gathered up, and, its identity being lost, it was apportioned among the different owners. Upon arrival in New York, about onesixth of the whole quantity, and of course a greater proportion of the original packages, was missing. Upon such facts I do not think the fair construction of these bills of lading demands the payment of freight as a lump sum. In all the cases where the payment of a lump sum as freight has been enforced, the intent of the parties to that effect has been clear upon the language of the bill of lading or charter-party. Shipping Co. v. Armitage, supra; Robinson v. Knights, L. R. 8 C. P. 465; The Norway, 3 Moore, P. C. (N. S.) 245; Querini Stamphalia, 19 Fed. Rep. 123. Here, not only does the bill of lading state that the payment is to be "at the rate of 32/6 per ton on right delivery," but the margin, to which reference is made, repeats the same rate, viz., “32/6 per ton." This is language of quite a different significance from that used in any of the cases where the construction has been that of a stipulated lump sum, and does not seem to me to import any such intent. If the libelant's contention is correct, then either the consignee or the shipper would be bound to pay the sum named, though nearly all the goods were lost or jettisoned through sea perils. Ordinarily, freight is collectible only upon packages delivered. To take the case out of that rule, the language of the contract must express that intent with such a reasonable certainty as does not appear upon these bills of lading. The evidence shows that in the general average adjustment, which included the expense of discharging the cargo at the ports of distress, and the loss of the respondent's oil occasioned by such discharge, an allowance was made to the respondent as a credit in general average for the oil so lost, on the basis of the New York price, which would include the price of freight to New York. This allowance was made upon 18,000 lbs. of oil, upon which the freight, at the rate specified in the bills of lading, would amount to $As the respondent has the benefit of so much charge for freight, he should pay it to the ship, for which the libelant may take a decree, with interest from November 20, 1890. NORTH-GERMAN LLOYD v. HEULE.* (District Court, S. D. New York. November 24, 1890.) BILL OF LADING AGENT AS CONSIGNEE - FREIGHT ACCORDING TO VALUE-CONCEALMENT OF VALUE. A bill of lading recited that additional freight should be payable on the total value of certain precious stones should their real value be discovered to be greater than was declared in the bill of lading; and the consignee received the goods and paid the freight according to the value stated in the bill of lading, and entered them at the custom-house under the bill of lading, and under an invoice that stated their value at a much greater sum than that made in the bill of lading. Held that the stipulation for additional freight upon the actual value was valid, and that the consignee was liable for the additional freight, though he was but an agent employed by the shipper to sell the goods on commission. In Admiralty. Action for freight. Shipman, Barlow, Larocque & Choate, for libelant. BROWN, J. The libel was filed to recover an alleged balance of freight due on an importation of diamonds received by the respondent, and entered by him at the custom-house under the bill of lading. The bill of lading stated the value as 7,000 francs, and upon receipt of the goods. by the respondent the freight on that valuation was paid. The bill of lading stated that an additional freight of 5 per cent. should be paid on the total value should the real value be discovered to be greater than was declared in the bill of lading. When the freight upon the valuation of 7,000 francs, as stated in the bill of lading, was paid to the libelants, and the goods delivered by them to the respondent, they had no knowledge that the real value of the diamonds in the package was any greater. The respondent, however, had knowledge of their greater value, and entered them at the custom-house upon the same bill of lading and upon an invoice that stated the value of the diamonds to be 27,616 francs. 1Reported by Edward G. Benedict, Esq., of the New York bar. The libelants claim to recover the additional freight of 5 per cent. on the actual value, in accordance with the stipulation of the bill of lading. The lawfulness of stipulations of this character in favor of common carriers, to protect them against unknown responsibilities,. and to adjust the freight according to the value and the responsibilities assumed, Eas been repeatedly upheld. See Hart v. Railroad Cc., 112 U., S. 331, 5 Sup. Ct. Rep. 151; Liverpool, etc., Steam Co. v. Phenix, Ins. Co., 120 U. S. 397, 442, 9 Sup. Ct. Rep. 469; The Denmark, 27 Fed. Rep. 141; The Bermuda, 29 Fed. Rep. 399, and cases there cited. For the respondent it is urged that he is not liable beyond the amount of freight paid, because he was only an agent to sell the goods on commission. The vessel, however, had no knowledge of this fact. The circumstances sufficiently show that it was the intention of all parties that the respondent, as consignee, receiving the goods under the bill of lading, should pay whatever freight was payable, according to the terms of the bill of lading. It is not a case of any claim outside of the bill of lading, but of a claim strictly pursuant to its express stipulation. The respondent had full knowledge of its terms, and of the real value of the goods, which determined the amount of freight actually payable. There was a manifest attempt by the shipper to defraud the ship of a part of its rightful freight. The consignee had notice of this, and was bound to protect himself before turning over the proceeds of sale. Under circumstances like the present it is unnecessary to discuss theoretical questions as to the liability of a mere agent as consignee to pay freight, where the circumstances are different and of doubtful import. See Elwell v. Skiddy, 77 N. Y. 282; Sanders v. Van Zeller, 4 Adol. & E. (N. S.) 260, 294. In cases like this, where a consignee, though a factor only, has full notice of all the facts, and obtains the goods under the bill of lading, and on the obvious undertaking to pay the freight, and pays on the carriers' requirement at the time of delivery all the freight that the carriers suppose to be due, the consignee is properly held for any balance of freight, as well as demurrage, that may be actually owing according to the terms of the bill of lading upon the actual value of which he had knowledge, but which was concealed from the carriers. The Bermuda and The Denmark, supra; Railroad Co. v. Barnard, 3 Ben. 39; Neilsen v. Jesup, 30 Fed. Rep. 138; Gates v. Ryan, 37 Fed. Rep. 154, and cases there cited; Allen v. Coltart, 11 Q. B. Div. 782, 785. Decree for libelant for $265.54, with costs. THE BARACOA.1 DUMOIS et al. v. THE BARACOA et al. (District Court, S. D. New York. October 24, 1890.) 1. CHARTER-PARTY-VESSEL NOT IN EXISTENCE-MARITIME CONTRACT. The letting by charter of a vessel not in existence, but "to be built, "is a maritime contract as respects the voyages to be made under it, and the guaranties it contains as to speed and draught. 2. SAME-VESSEL "TO BE BUILT"-BUILDING CONTRACT. In such a contract the building of the vessel is but a preliminary to the substantial part of the agreement, viz., the delivery of the vessel for navigation as per charter, and a suit for breach of the guaranties of the charter as to speed and draught is enforceable in rem in the admiralty. 3. PROCEDURE-JOINDER OF SUITS IN REM AND IN PERSONAM. In suits on charters or contracts of affreightment, proceedings in rem and in personam may be joined. BROWN, J. The libel is brought in rem and in personam to recover damages for the alleged non-fulfillment of the guaranties contained in at charter of the steam-ship Baracoa to the libelants. The charter stated that the owners agreed to let, and the charterers to hire, the steam-ship from the time of delivery for 36 months. The ship referred to is described as a steam-ship "to be built on specifications as per memorandum attached." The memorandum attached specified a certain draught and a guarantied speed. The steamer, when built, was tendered to the libelants within the time provided, and at the place substituted by agreement in lieu of that named in the charter, and several trips were performed under it. The libelants, finding that the draught was greater and the speed less than guarantied, refused acceptance, and filed this libel for breach of the covenants of the charter. The respondents except on the ground (1) that the contract was one for the building of a ship, of which the court has no jurisdiction; (2) that, as the ship was not in existence at the time of the charter, the contract was not a maritime one; (3) misjoinder of causes in rem and in personam, and that there is no lien for such damages. 1. The fact that the subject of the charter was a vessel that was 'to be built does not make the charter any the less a maritime contract, so far as respects the letting of the ship after she should be built, or as respects her performance of the voyages contracted for under the specified guaranties. The charter, indeed, contemplated a ship to be built; but that was but a mere incident, and preliminary to the essential part of the contract, which was purely maritime, viz., the delivery to the libelant, at a certain future date, of a vessel of certain draught and garantied speed, 1Reported by Edward G. Benedict, Esq., of the New York bar. |