Guerard v. The Lovspring

Simonton, J. The libel is filed for the recovery of the value of a lighter load of phosphate rock! Libelant on 26th December, 1889, by sale bill, sold to one Gesterding, of Hamburg, Germany, about 2,000 tons kiln854 dried phosphate rock of a certain quality and price, for delivery January, February, along-side vessel, cash against documents. Vessel to load as much of cargo as possible at phosphate works, near Charleston, S. C.; balance to be lightered down to city by seller. Thereupon Ges-terding entered into a charter-party with the owner of the Lovspring, and sent her to this port for a load of rock. The special provisions of the charter-party will be noted when needed. It required the captain to apply for cargo at Charleston to the libelant. This he did. Libelant directed him to the Rose Phosphate Works, on Ashley river. The bark then took in part of her cargo, and dropped down the stream, and anchored for the remainder. Libelant engaged Thomas Young as stevedore, and hired from Young a tug and lighters. Two lighters, with phosphate rock, were towed down to the bark on the evening of 26th March, reaching her at 8 o’clock, and the lighters were made fast to the bark, each with two lines, the tug furnishing one for each lighter, the bark the others. The master gave to the tug-master a receipt for the two lighters with phosphate rock in good order. For some reason Young and the master could not agree, and with the consent of both parties Lee was substituted as stevedore, and went aboard with his gang about 1 p. m. on 27th March. One of the lighters capsized about 2 o’clock on that day, losing her load. The mates and crew of the bark say that they noticed nothing about the lighter indicating this until it w'ent over. A witness not connected with this case, whose place of business was on shore about 200 yards opposite to the bark, says that the lighter showed a list at 7 a. m., and that this gradually increased until she went over. When the tug had made fast the lighters she went away, leaving none of her men in charge, and no one on behalf of the lightermen came back to look after the lighters. The first question made in this case is, in whose name should the action be brought? The claimant contends that Guerard, by his contract with Gesterding, agreed to deliver the rock along-side the vessel; that he alleges and has offered proof that he did deliver this rock along-side; that the property, if this be so, passed to his vendee, who alone can sue. The contract of sale in this case was not for a specific chattel. It was for about 2,000 tons of phosphate rock. It would have been satisfied by the delivery of any rock answering the character and quality of that agreed to be delivered. In such a case the appropriation, in that sense of the term which alone would pass the property from the vendor to the vendee, is not complete so long as the vendor shows by some act his determination to retain jus disponendi. This act may be in the form of the bill of lading which he requires. Equally so would be his retention of the ship’s receipts to the lightermen, which must be surrendered for the bill of lading. Wait v. Baker, 2 Exch. 1; Van Casteel v. Booker, Id. 691; Turner v. Trustees, 6 Exch. 543; Gabarron v. Kreeft, L. R. 10 Exch. 274. Mr. Benjamin, in his book on Sales, 328 et seq., cites these cases and many others. ■His conclusion upon the cases, among others, is this: “(5) Although, as a general rule, the delivery of goods by the vendor on board the purchaser’s own vessel is a delivery to the purchaser and passes the property,, [855] yet tlie vendor may by special terms restrain the effect of such delivery, and reserve jus disponendi, even in cases in which the bills of lading show that the goods are free oí freight because owners’ property. And on a sale of goods which are not specific, although the goods have been delivered on board a ship of, or chartered by, the purchaser, yet, in the absence of any appropriation of the goods in the fulfillment of the contract previous to shipment, tlie fact that the vendor has taken a bill of lading to his own order, or that of a third person, will prevent the property in them from passing to tlie purchaser.” Amer. Ed., by Kerr. In the present case, libelant -when he finished loading the bark took the bills to his own order. He did not include in these bills the lost, rock, nor did he require the master to do so, as was done in Bulkdey v. Cotton Co., 24 How. 386. He did not demand a separate bill for this rock, lie surrendered all the other receipts to his lighterman. He retained that for this lost lighter. Thus he demonstrated his intent not to pass the property and to retain jus disponendi. ,He accepts the loss as his, and it goes without saying that his vendee concurs with him. This does not in any way affect the bark, or deprive her of any advantage of position she would otherwise enjoy. If the lost rock be the property of the charterer, and he brought this action, he would be bound by and and she would be protected by all the terms, limitations, conditions, and exceptions of tbe charter party. But so, also, is the libelant. He was the agent in that behalf of the’ charterer, had in his possession a copy of the charter-party, selected the stevedore, engaged the lighterman. He delivered the rock, or attempted to deliver it, under this charter-party, and solely because of it. Ho knew precisely how, in what capacity, under what limitations, qualifications, and exceptions, the cargo was sent to the bark in the stream. He is as much bound as He charterer would be. He could not treat this vessel as a common carrier. He knew that she wras not a general ship, up for a general cargo, carrying goods for any one offering them. Macl. Shipp. 115, 391. He knew that she was under special charter to one man for this voyage for one purpose, and with all her freight room engaged. This action is properly brought in his name, and, as he alleges, as owner. Our next inquiry is, has he a cause of action in rem against the bark? By his own contract and that of the charter-party, a portion of the cargo ■was to be delivered in the stream. His responsibility for this portion depends upon the express contract, and, where this is silent, upon the general usage subject to which the contract w;as made. Maude & Ik Shipp. 186. This charter-party provides: “The cargo to be brought along-side and taken from along-side free of expense and risk to tbe ship, any custom of the port to the contrary notwithstanding. Ship to receive cargo at charterer’s wharf if required, provided there is sufficient water, or to load as deep as possible, always afloat, as charterer or agent shall appoint, at wharf, taking, balance of cargo in stream. * * * Whenever ordered, the ship is to load and discharge at such safe dock, wharf, or place, always afloat, as charterer or his agent shall appoint. Charterer reserves the option of appointing stevedore for loading at ship’s expense. ” [856] The place of loading must bo safe. As the charterer selects it, he is responsible for its safety. If, therefore, when the cargo was being delivered at the phosphate landing, the wharf, by reason of some defect in it, had fallen in, and the rock had been lost, there can be no doubt that the loss could not fall on the ship. As the wharf must be safe, so, also, the means used in transferring cargo from the shore to the ship in the stream must bé safe, “free of expense and risk to the ship.” And for this also the shipper is responsible. That is to say, if he uses lighters for this purpose they must be tight, staunch, and seaworthy in all respects, and must remain so as long as they are so used. Lyon v. Mells, 5 East, 437; Word v. Leathers, 97 U.S. 379. I say they must remain so. The master had no control whatever over the stevedore. He was selected by the shipper. The provision so common in charter-parties, that the stevedore, though named by shipper, should act under the master’s orders, is omitted in this charter-party. So the master could not put a pound of this rock in his ship 'himself, or receive it in his ship), until it suited the stevedore. For this reason the lighter must not only come along-side tight, staunch, and seaworthy, but it must remain so until the other agent of his principal is ready to discharge its contents. There was not such a delivery of this rock to the master as to put it under his control, and therefore at his risk. Blaikie v. Stembridge, 95 E. C. L. 908, is a leading case. It was affirmed on appeal. It is quoted in all the text-books, and Maclaehlan in his work on Shipping, 415, note 4, quotes Swainstonv. Garrick, 2 Law J. Exch. 255; Consolate 2, Perciss 220, as sustaining it. The court says: “The stevedore was to be appointed by the charterer, and therefore to act for him and represent his interests. For this purpose he had the charge and custody of the goods until they were laden and stowed on board.” This same case, construing a charter-party like this in every important respect, only that it has the clause, omitted from this, “that stevedore is to" be under master’s orders,-” says: “The cargo is to be brought along-side at the risk and expense of the 'charterer, and it is to- be shipped and stowed by his stevedore; consequently at his risk, though at the expense of the ship-owner.” The case of The Sunlight, decided in this court and affirmed in the circuit court, (2 Hughes, U. S. 11,) is not in conflict with this case. In the case of The Sunlight, phosphate rock, which the agreed statement of facts says was the property of the bark, was brought along-side and put entirely under the control, both as to the rock and the lighter, of the bark and her master. It capsized in the dock, and the bark lost the property. There ivas no special contract, and the case went off on a supposed custom of the port. This being the result of this contract made between the owners of the Lovspring and the charterer, no receipt or act of the master could alter, amend, or vary any of the terms of this contract. Burgon v. Sharpe, -2 Camp. 529; Macl. Shipp. 138; Sickens v. Irving, 7 C. B. (N. S.) 165, 29 Law J. (C. P.) 25; Manchisa v. Caret, 39 Fed. Bep. 495. Let us look at the case from another point of view. The lighter was sent to the bark in order to fulfill the contract of the shipper. It was loaded with rock intended to be part of her cargo, was put along-side [857] the bark, and attached to her by lines. It so remained until she sank, with no one to watch her but the master and the crew of the bark, certainly until the stevedore came aboard. As we have seen, it was the duty of the shipper to furnish lighters, tight, staunch, and in every way seaworthy. As these lighters carried his rock to be put aboard ship by his stevedore at such time as he selected, he was bound to keep his lighters in that condition until this was accomplished. As the lighter was loaded by him, it was his duty to see that it was properly stowed, and that if should remain so until discharged by his own stevedore. If, therefore, the lighter capsized because it took in water, not being seaworthy, or because of bad stowage of cargo, he is responsible for it. If the lighter capsized from stress of weather, it is a danger of the sea for which the bark could not bo responsible. There was no delay on the part of the bark. The stevedore was not ready to begin loading at any time during which the lighter was along-side the bark. The testimony gives no reason to think that the lighter at any time came into collision with the bark. It certainly did not at the time that it capsized. As the lighter was made fast to the bark by lines furnished in part by and with the co-operation of the tug people, negligence in the mode in which it was made fast cannot be imputed to the bark, in the absence of all testimony to this effect. These are all the causes for capsizing lighters which Mr. Rhodes could give, and he has large experience in handling them. But the master received the lighters, and, notwithstanding the absence of the stevedores and the hour of the night at which they arrived, permitted them to be attached by lines to his bark, and suffered the tug-master to leave them unguarded without objection. Did the bark incur any liability for this? Did her master assume the responsibility of these lighters, seeing that they did not leak, that their cargo was kept properly stowed, that no accident befell them? Assuming, for the sake of argument, that nothing can be deduced from the terms of the charter-party on this point, and treating it as if it were silent as to it, is there any custom of this port which makes the vessel custodian of lighters bringing cargo at the risk and expense of the shipper? No such custom has been proved. On the contrary, it appears from the testimony of Mr. Rhodes that the White Cross Line, who <io a large lighterage business, employ a man specially to visit and care for their lighters. And the tug-master in this case, employed by Capt. Young, another lighterman, only knew that they kept a pump for lighters to be used when the tugs could not be employed in pumping them out. There being, therefore, nothing in the express contract nor in the custom of the port which would make it the duty of the bark to safely keep and care for this lighter, the only other way in which she can be made liable is on the implied contract of the master when he gave the receipt for the two lighters in good order. What was the consideration for this? He was not bound by his charter-party to undertake the care and custody of the lighters, nor by the custom of the port. His freight was secure under his charter-party, and the delivery of the rock on the lighter as a part of his cargo, or withholding it, were equally indifferent [858] to him. He thus became ail unpaid agent, having in possession the property of another, undertaking to keep or perform something about it. Even the master in such a case could not be held liable, except in an action charging his negligence as the cause of the damage, and proving it. Coggs v. Bernard, 1 Smith, Lead. Cas. (6th Araer. Ed.) pt. 1, p. 419, notes; Story, Ag. 213, 278. 339. Neither of these has been clone in this case. A fortiori the bark cannot be held in this court in this proceeding in rem. Let an order be entered dismissing the libel, with costs.