Kennedy v. Weston & Co.

PARDEE, Circuit Judge (after stating the facts). The shipment and loading of damaged lumber over the objections of the master was a breach of the charter party for which the charterers were liable, and the procurement from the master, over his protest, of a clean bill of lading therefor, was not a condonement of the breach, but, rather, an aggravation thereof. According to the libel, this breach resulted in damages to the owners; and this does not appear to be controverted, but, rather, admitted, in the claim put forward, and sustained by the District Judge, that the owners could have protected themselves on the delivery to the consignees, notwithstanding the clean bill of lading improperly obtained by the charterers from the master. This view of the case seems to be fully negatived by the fact alleged in the libel, to wit: “That libelant was compelled to pay the damages against the said Messrs. F. & H. Gehlsen by means of a judgment or decree of a German court of competent jurisdiction. That the said judgment or decree was rendered in a cause which was brought by the libelant herein against the firm of F. & H. Gehlsen for the balance of four thousand marks (4,000) alleged to be due for freight on the said cargo, and payable by the said F. & H. Gehlsen, buyers thereof, upon the arrival of the said vessel at Gluckstadt, Germany. That libelant claimed the said balance of 4,000 marks, with interest from the day [168] the discharge of the vessel was completed; and the said F. & H. Gehlsen, as defense to libelant’s action, claimed that they were entitled to compensation from libelant as against his claim for the balance of freight of 4,000 marks, because at the loading of the said cargo in Florida a portion thereof delivered to the master, to wit, about thirty-two (32) standards, at one hundred and sixty-feet (165) cubic feet per standard, were found to be in obviously bad condition — wet and covered with mussels — and that the master had made no note thereof upon the bills of lading, and that therefore they, the said F. & H. Gehlsen, as receivers of the said cargo, were entitled to damages on account of the condition thereof as aforesaid; and the said court wherein the said cause in Germany was pending as aforesaid tried the same according to the German law, and adjudicated the matters in said suit involved, and decreed in favor of the said F. & H. Gehlsen, against libelant, the sum of 4,543.77 marks, equal to $1,150 in money of the United States; and libelant accordingly paid so much thereof as was in. excess of the balance of the freight for which suit had been brought as aforesaid; the said amount sued for as aforesaid being by judgment or decree aforesaid of the said German court allowed in part payment of the damages which the said German court found in favor of the said F. & H. Gehlsen.” Under the bill of lading improperly obtained by the respondent from the master, it is doubtful whether, under the admiralty jurisprudence in this country, the owner could have protected himself against the demands of the indorsees thereof. See Bags of Linseed, 1 Black, 108, 17 L. Ed. 35; Crossman v. Burrill, 179 U. S. 110, 21 Sup. Ct. 38, 45 L. Ed. 106; Dayton v. Parke, 142 N. Y. 400, 37 N. E. 642. Brown et al. v. Powell Duffryer Steam Coal Company, 10 C. P. 562, while directly in point, and adverse to libelant’s right to recover, is not accepted as conclusive. The decree of the District Court is reversed, and the cause remanded, with instructions to overrule the exceptions to the libel.