George W. Bush & Sons Co. v. Thompson

GOFF, Circuit Judge. The charter party is silent as to the matter of the employment of the stevedore. It is usual to provide in it that the vessel shall engage the services of the stevedore of the charterer. Such a provision is fair, and the stevedore so employed is under the direction of the master, and may be discharged for carelessness or incompetency. In the absence of such provision, the vessel can employ its own stevedore, if the custom of the port does not otherwise provide. Having failed to reserve that right, the charterers in this case were not at liberty to demand that they be permitted to furnish the stevedore, as the master had that right, provided he selected a competent one. The cargo was lumber, and the stowage of the simplest character. The evidence shows that the stevedore engaged by the master was fully competent, of great ' experience, and well known at the port of Savannah, where he had so worked for many years. That he had previously had trouble with the shippers, and that Ms employment was extremely distasteful to them, while a matter that was proper to be submitted by them to the master in connection with the propriety of the employment, is without weight, when presented for the purpose of controlling Ms conduct or overruling his action. It was the duty of the schooner to stow the cargo, the shipper having placed it at her side, within reach of her tackle. The vessel, under the circumstances of this case, was entitled to select the stevedore, and she was required to pay Mm for Ms services, being also responsible for the manner in which he discharged them. Portland Shipping Co. v. The Alex. Gibson, 44 Fed. 371; The Keystone, 31 Fed. 412; Muller v. Spreckels, 48 Fed. 574; Sack v. Ford, 13 C. B. (N. S.) 90; Richardson v. Winsor, 3 Cliff. 395, Fed. Cas. No. 11,795; Culliford v. Gomila, 128 U. S. 135, 158, 9 Sup. Ct. 50; Scrutt. Charter Parties, art. 50, p. 94. The appellant insists that it is proven by the testimony that, by the usage 814 of the lumber trade at the port of Savannah, the shipper has the right to select the stevedore. The court below did not find from the evidence the existence of such usage, and in this finding Ave concur. It is shown that during the past few years a number of the shippers at that port have endeavored to establish such a. custom, but it also appears that their action has not been acquiesced in by the shipmasters, and has not been of that certain, uniform, and known character as will authorize a court to hold it to be a custom binding upon the trade and controlling masters, in the absence of stipulations in the charter party. Judge Morris, who heard the case below, in disposing of it, used the following language, which we approve of and hereby include in our opinion: “The case comes to this: That the respondents Avho chartered the schooner contracted to furnish her at Savannah with a full and complete cargo of lumber; that the lumber was tendered, but with a condition annexed which, was not warranted by the charter party, nor by any usage of the port. It was in fact refused, unless the master would submit to a requirement which was not in the charter party or sanctioned by usage. The master having already in good faith contracted with a competent stevedore, selected by himself, he could not be compelled to dismiss that stevedore as a condition of the cargo being furnished to him. There was therefore a refusal to furnish cargo in compliance with the stipulation of the charter party. Hudson v. Hill, 43 L. J. C. P. 273.” For tbe reasons given, the decree appealed from is affirmed.